By now many Americans have read a glowing news article about the latest celebrity to have a child via surrogacy or watched a human-interest piece about a woman carrying a child for a loved one.
From New York, which just quietly legalized commercial surrogacy, to California, which remains a hotspot for individuals and couples from across the country and around the world seeking such services, surrogacy is often positioned only as a positive good. No equivocation or mention of the harms it poses to women and children is even mentioned.
Avoiding the other side of the conversation does a disservice to us all, however. It’s time to talk about the dangers of surrogacy.
Just ask some of the children themselves. “There are a lot of days …where I feel adrift, kind of like a tumbleweed… It’s days like today where my heart hurts a bit more over a surrogacy agency, doctors, lawyers, and the rest of the adults involved not successfully making sure that this product they were creating would be o.k.,” writes “jkiam83” an anonymous surrogate-born woman on her blog. “Where are the resources and communities for us products of surrogacy? [I]s this really what is in the best interest of a child?”
From the perspective of Brian, a surrogate-born man, it’s not; he writes, “It looks to me like I was bought and sold.”
In a surrogacy arrangement, a woman carries a child for an individual or couple who is unable to do so themselves. Sometimes the child is genetically related to the commissioning parents, but often donor gametes are used, and the child is related to only one, or in some cases neither, of the commissioning parents.
Sometimes the surrogate mother is genetically related to the child she carries, but often she is not. Some surrogacy arrangements are domestic, but many commissioning parents pursue international surrogacy arrangements, which adds an additional layer of logistical and legal difficulties.
Surrogacy is fraught with ethical and moral considerations. It is a process that can exploit vulnerable women. It carries significant health and psychological risks for the women whose wombs have been “rented,” the women whose eggs have been harvested to create an embryo, and the children who are born from these arrangements. All too often, the desires of adults—namely, the commissioning parent(s)—supersede the interests of children. Unfortunately, discussions of surrogacy in media—and culture more broadly—rarely focus on the latter.
At the recent United Nations Commission on the Status of Women, The Heritage Foundation and the Center for Family and Human Rights drew attention to surrogacy and the dangers it poses to women at an event that highlighted several instances of women who had been trafficked, rendered infertile, or even died as a result of surrogacy. Michelle Reaves was one such surrogate mother from California. She lost her life last year while delivering a baby for someone else, leaving her own son and daughter motherless and her husband a widower.
By its very nature, surrogacy commodifies both a woman’s body as well as that of the child. The women targeted to become a surrogate by the multi-billion-dollar fertility industry are often wooed by the opportunity to make tens of thousands of dollars in exchange for renting their body. In some cases, a surrogate arrangement is altruistic—perhaps the surrogate mother may want to help a friend or family member who desperately wants a baby, and she does not profit financially from the exchange.
Nevertheless, regardless of the circumstances or motivation, in a surrogacy arrangement a woman’s body is used as a conduit for a transaction that provides a baby for someone else—and the risks for both her, and the baby, are significant.
Whether a surrogate mother is compensated or not, serious concerns involving health risks to mothers and babies remain, and the rights of children must not be ignored.
Children who are born as the result of a surrogacy arrangement are more likely to have low birth weights and are at an increased risk for stillbirth. When a woman carries a child conceived from an egg that is not her own—a traditional gestational surrogate arrangement—she is at a three-fold risk of developing hypertension and pre-eclampsia.
Egg donors have spoken up about experiencing conditions such as loss of fertility, blood clots, kidney disease, premature menopause, and cancer, and the lack of data and studies on both short and long term health outcomes for egg donors makes true informed consent unattainable.
While scientists do not fully understand the scope of these health considerations, it is clear that for both short and long-term outcomes, surrogacy is a frontier of unknowns; children, egg donors, and surrogate mothers may pay a physical or psychological price nobody yet fully knows or understands.
Children’s Rights Matter
Surrogacy gives little consideration to the rights of a resulting child, who in many cases will be intentionally separated from at least one biological parent, as well as potential half-siblings in cases where the commissioning parents are using egg or sperm donors in conjunction with the surrogacy arrangement. In cases of anonymous egg and/or sperm donation, children have been denied part, or in some cases all, of the details of their biological origins. “Genealogical bewilderment” and adjustment difficulties among surrogate-born children are well documented.
Even in cases where a child is raised by his or her biological parents, children’s rights advocate Katy Faust notes that many surrogate-born children in these circumstances experience the primal wound of losing their birth mother, an experience well-documented among adopted children. She argues that “surrogacy is, by its very nature, an injustice to the child. Birth is intended to be a continuation of the mother/child bond, not the moment at which the child suffers an intentional, primal wound. It’s the day when a baby should see the mother she already loves for the first time… not the last.”
Sometimes parallels are drawn between adoption and surrogacy. But this is a false comparison. In many cases surrogacy intentionally creates a situation in which a child will be denied his or her biological parent-child relationship. In every circumstance, the children of surrogacy arrangements are deliberately separated from the only mother they have ever known the moment they are born. Adoption, in contrast, responds to this separation rather than creates it.
Surrogacy Knows No Borders
International surrogacy arrangements can be even more complicated than domestic surrogacy arrangements because issues of citizenship and nation-specific determinations of legal parentage come into play. While there are no exact numbers available of how many children have been born from surrogacy worldwide, it is currently a global industry that is projected to grow to over $20 billion within the next few years.
As Professor David Smolin, a leading legal expert on surrogacy and author of “The One Hundred Thousand Dollar Baby: The Ideological Roots of a New American Export,” explains, “The United States is attractive to foreigners seeking surrogacy services because it is one of the few nations that offers stable legal systems explicitly supportive of commercial surrogacy.”
While America is a popular destination for surrogacy for those who can afford it, some commissioning parents engage in international surrogacy arrangements in countries with even less regulation such as Ukraine and Russia, which raises additional concerns about maternal and postpartum health care for surrogate mothers and babies.
Heartbreaking stories at the height of the coronavirus pandemic exposed the uglier side of international surrogacy as travel restrictions separated surrogates and babies from commissioning parents across the globe.
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With such international variation in the legal status of surrogacy, as well as the establishment of parentage and citizenship, commissioning parents and surrogate mothers can find themselves navigating a minefield of unanticipated practical and legal issues.
Internationally, women’s rights groups are split on the issue of surrogacy—much as they are in the debates over prostitution or “sex work”—about whether it exemplifies a woman’s autonomy and choice over what to do with her body or whether it constitutes commodification of a woman’s reproductive and life-giving capabilities.
Sadly, the international surrogacy market appears to have significant and growing overlap with human trafficking. Given the amount of money involved, traffickers stand to profit substantially from selling women and girls into surrogacy arrangements.
As Dr. Sheela Saravanan, author of “A Transnational Feminist View of Surrogacy Biomarkets in India,” wrote in a submission to the UN Special Rapporteur on the sale and sexual exploitation of children, “The surrogacy trafficking trade used the same network that was used for domestic work and sex trade from the poor regions of India into urban areas. These unmarried girls [were] impregnated with embryos without their consent. Others were confined in homes and when some girls tried to run away, they [were] caught, brought back and beaten.”
How Are Governments Responding?
The international community is currently debating a new protocol on international surrogacy arrangements. A group of experts—including one representing the U.S. Government, convened by the Hague Conference on Private International Law—is discussing how to address legal parentage, jurisdictional, and ethical questions about surrogacy, particularly from the perspective of protecting children.
In response to various injustices and exploitation, several countries have closed their borders to international surrogacy arrangements in recent years, including India and Thailand.
Regrettably, the current official position of the United States with respect to international surrogacy is that surrogacy does not involve the exploitation or commodification of children. The U.S. signed and ratified the optional protocol to the Convention on the Rights of the Child that prohibits the sale of children, but holds that “surrogacy arrangements fall outside the scope” of the protocol.
The UN Special Rapporteur on the sale and sexual exploitation of children recommends that surrogacy agreements be regulated in order to prevent exploitation of women and sale of children. But she has not called for a global ban on surrogacy, although an increasing number of voices do, including hundreds of organizations from eighteen countries that signed an International Statement for a Global Ban on Womb Rental in 2018.
Within the United States, a patchwork of laws makes for a Wild West situation. Some states allow commercial surrogacy, some limit surrogacy to altruistic arrangements, and some do not recognize surrogacy contracts. But most states do not specifically address the issue.
Proposals to more tightly regulate surrogacy, clarify contract legalities, or in the case of the state of New York, provide a full-fledged stamp of approval, don’t resolve the full scope of surrogacy’s challenges and harms.
Time to Reframe the Conversation
Beyond the debates in state houses and international bodies, it’s time to reframe the conversation. Infertility and other health conditions that render a person unable to have a child of his and her own can be a painful and isolating experience, and our society should have compassion for people who walk the road of infertility and loss.
But we should approach the matter of surrogacy from an understanding that the desires of adults to raise a child do not supersede the rights and needs of children.
Listening to the women and children who have suffered deeply because of surrogacy is critically important. Organizations like Them Before Us and the Center for Bioethics and Culture are leading the important work to elevate these voices and tell the stories of women and children that are too often ignored or dismissed.
Clarifying legalities and increasing regulations does not address fully the ethical problems with surrogacy and its harms to women and children. Opposition to surrogacy is not a simple left versus right issue, and people across the political spectrum can agree that American laws and society need to prioritize the dignity and health of women, the needs of children, and the fundamental human rights of all individuals when addressing the matter of surrogacy.
Originally published by The National Interest
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