Commercial surrogacy

Surrogacy is not a new idea. Neither is medical tourism. The biblical tale of Hagar, Abraham and Sarah is perhaps the first record of surrogacy in action and Ancient Greeks would travel far distances to reach Sanctuaries devoted to their Gods, in the hope of health improvement.

However, advances in reproductive technologies, communication and travel have combined to make medical tourism far more attractive and accessible. As a result, reproductive tourism in the form of commercial surrogacy is undergoing a major surge in popularity.

Commercial surrogacy is a term that describes a woman who is financially compensated – beyond expenses associated with pregnancy – for carrying the baby of another couple. Statistics regarding exact numbers of commercial surrogacies are difficult to come by, perhaps because reported numbers of IVF cycles at assisted reproductive clinics do not necessarily correlate with successful pregnancies, or possibly because such surrogacies are often thought of as controversial.

As reproductive technology such as IVF becomes more advanced and with that, more accessible, it is indisputable that incidence of gestational surrogacy is increasing. The Society for Assisted Reproductive Technology (SART) has shown that between 2009-2013 the numbers of gestational surrogacies increased by 91%.

With clear financial advantages to international commercial surrogacy, certain countries without regulation to the contrary – such as Ukraine and India – are becoming hotspots for the industry. India in particular has emerged as a first port-of-call for the baby outsourcing trend currently sweeping the world. However, there are both practical and ethical objections to this emerging practice.

In particular, the psychological consequences for the surrogate mother are difficult to anticipate. Especially when the motives for entering a surrogacy contract are predominantly financial, it is unreasonable to expect a woman to accurately predict how she will handle giving up the baby. It is equally important to remember the serious and potentially fatal health consequences that the act of pregnancy itself carries.

The World Health Organisation (WHO) reported that in 2014 more than 358,000 women died from complications related to pregnancy or childbirth. Furthermore, an alarming 10 million women suffer from injury, infection or disease as a result of a pregnancy. The risks to life from surrogacy are therefore not insignificant. These risks may even be greater than those experienced in a normal pregnancy due to the higher prevalence of multiple births and caesareans associated with IVF.

India – An Entrepreneur’s Paradise
As the globalization of healthcare gains momentum, the number of fertility clinics worldwide is rising accordingly. The lack of legal complications, seemingly high availability of surrogates and relatively inexpensive nature of surrogacy in India combine to make it an attractive and attainable option for many couples. The Iswarya Women’s Hospital & Fertility Centre, has shown a 7-fold increase. Whilst these figures may not seem particularly significant in isolation, when we remember that there are hundreds, possibly thousands of fertility clinics worldwide, the numbers add up very quickly.

The Akansha Infertility and IVF clinic in Anand, India is experiencing a similar surge in popularity. The Medical Director of the clinic, Dr. Nayna Patel, is a highly educated, entrepreneurial woman. She describes with enthusiasm and unabashed pride the process by which a woman can become a surrogate in the 2009 film Google Baby. Patel describes commercial surrogacy simply: it is ‘one woman helping another’.

Potential surrogates at Patel’s clinic must meet strict criteria. All women should have successfully had a child previously, and be genetically unrelated to the surrogate child – although surrogates are frequently egg donors too. This acts as a precaution to prevent the women from forming strong attachments to the babies that they are carrying. However, the 1990’s Californian Johnson vs. Calvert case is a painful example of how, even in gestational pregnancy, a surrogate mother can develop a strong bond with the baby.

In this case, Mark and Crispina Calvert hired a surrogate, Anna Johnson, to carry their baby. IVF was used to fertilize Cristina’s egg with Mark’s sperm before implanting the resulting zygote in Anna’s uterus. The pregnancy was a success however a legal battle ensued as Anna discovered that she had formed a much stronger bond than anticipated with the child. The court found in favor of the Calverts, and Anna was left with no legal claims to the child. Anna clearly could not predict how it would feel to give up a child, and paid a steep price.

This is especially true when the women making this decision are blinded by poverty and their need to provide basic living essentials for their families. In such cases their ability to objectively evaluate the effect of this invasive procedure, and its accompanying roller coaster of emotions, is almost definitely compromised, even if they pass ‘mandatory psychological assessments’ that are obligatory in many of these clinics.

A Question of Rights
Interestingly, both critics and fans of commercial surrogacy take on the human rights shield when supporting their positions. The Universal Declaration of Human Rights (article 16) says that ‘Men and women of full age ... have the right to marry and found a family.’ Article 27 goes on to say that ‘Everyone has the right ... to share in scientific advances and its benefits’. By this reasoning alone, if the technology to have a child via surrogacy is available, then women have every right to take it up. Furthermore, in many cultures where having a child is considered a great gift and a blessing, denying a couple of this right can be seen as doing them a grave disservice.

Daniel Callahan, a renowned philosopher with a special focus on bioethics, beautifully articulates the flaw in this desire to utilize technology whenever possible. The quote below, taken from his paper ‘Death with dignity’, illustrates an underlying principle that is perfectly applicable to our discussion here. He writes,

“Some physicians argued that they had a moral duty to save life at all costs. The quality of life, the actual prognosis, or the pain induced by zealous treatment, were all but irrelevant. The technological imperative to use every possible means to save life was combined with the sanctity of life principle in what seemed the perfect marriage of medicine and morality”.

As Callahan implies, just because the technology to save life exists, it doesn’t mean that it must be used. The same can be said for commercial surrogacy – yes, we have the technology to do it, and we may even have willing participants, but should we actually do it?

There are further ethical issues at stake. The use of human beings – both baby and surrogate – as a commodity, and the idea of ownership, even if just for 9 months, of one person by another are issues that cannot be ignored.

A Feminist Issue?
It may seem paradoxical to approach this issue from a feminist angle when you consider the fact that most of the key players are women. It tends to be women that strongly feel the desire for a child, women who volunteer for surrogacy and women who are often the hospital directors and healthcare workers fuelling the provision of surrogacy services. In order to see why this is a feminist issue we must take the opportunity to reflect upon the reasons why women consider commercial surrogacy in the first place.

Quite often, the answer is poverty. Many women taking part in this type of surrogacy live in destitute situations where any opportunity to escape poverty is likely to be welcomed with open arms. Yet, although poverty affects men and women equally, only women can act as commercial surrogates. The decision they make is unlikely to be solely their own – it will be influenced by social circumstances, in-laws, husbands and maybe even their children – and yet they alone will have to face the emotional and physical consequences of becoming a surrogate. In this way women are exquisitely discriminated against.

The Law
Complications related to pregnancy can raise certain legal issues. For example, to what extent (if any) can the commissioning couple be held responsible for a surrogate death from complications during pregnancy or labor? What claims, if any, does a surrogate mother – or her relatives – have to the child?

These issues are highlighted by the example of Natasha Caltabino, a British surrogate. On New Years Eve 2004, Natasha died of an abdominal aortic aneurysm within hours of giving birth to a baby boy. The Surrogacy Arrangement Act states ‘surrogacy arrangements are unenforceable’ so commissioning parents must legally adopt the child after birth. Following Natasha’s death both her mother and the commissioning couple laid claim to the baby – who eventually went to the intended biological parents.

There is a large variation in surrogacy laws worldwide. Some countries, such as France and Germany, have a complete ban on all forms of surrogacy. Others, such as the UK, enable altruistic surrogacy only – although in the UK, reasonable expenses can be paid to the surrogate, and it is common practice for the commissioning couple to take out a life insurance policy for the surrogate.

A more liberal approach in which both commercial and altruistic surrogacy is legal has been taken by countries including Israel and India. This inconsistency in the law globally has given rise to a number of complicated legal dilemmas that, in correlation with the increasing popularity of reproductive tourism, look set to arise more often.

Laws regulating surrogacy can be complex and hard to enforce. In light of this, as well as the psychological and potential physical damage that could be caused to the surrogate, perhaps a total ban on commercial surrogacy, including altruistic surrogacy with ‘reasonable’ monetary compensation, is necessary. However, it would be naive to think that such a move would have no negative consequences. The emergence of a black market is almost inevitable. The criminalization of commercial surrogacy would leave desperate couples and potential surrogates open to exploitation by ‘underground’ surrogacy brokers.

Do Unto Others ...
Commercial surrogacy potentially leaves women open to exploitation, and both physical and mental scars. One potential solution is a complete ban on commercial surrogacy internationally – however, this is probably unlikely in the near-term. Another avenue is to increasingly render commercial surrogacy socially unacceptable, probing questions of ethics and responsibility.

Perhaps the answer lies in the words of the well-known philosopher Immanuel Kant:

I ought never to act except in such a way that I could also will that my maxim should become universal law.

In other words, if you wouldn’t want to become a surrogate or you wouldn’t want your wife or daughter, sister or friend to do so – solely out of financial need – then how can we consider it a viable escape from poverty for any woman?

(Robyn Perry-Thomas, University of St Andrews)