Why is Surrogacy Illegal in Most of the World?

Ethics and Risks

The longing, desire and biological drive of many human beings to fulfill the imperative to be fruitful, to procreate and to become parents, is real and painful when unachievable.  This has led to an increase of assisted reproductive technology (ART) and surrogacy, despite ethical and legal concerns.

Preface

The infertility and surrogacy multi-billion-dollar industries, those who benefit from it, and others, too often attempt to out-shout any criticism of surrogacy by conflating surrogacy with LGBTQ+ rights and labeling all opposition to surrogacy as homophobic.

Yet, the LGBTQ+ community includes those who are opposed to surrogacy and anonymous designer contract conception, aka assisted reproductive technology (ART).

Opposition to surrogacy has nothing to do with the sexual preference, sexual orientation, gender identification or marital status of those who use anonymous gamete and/or hire a surrogate.   It is contractual anonymous conception and surrogacy which is at question, regardless of who contracts for such services.

Anderson Cooper is the latest celebrity to have a child via surrogacy. He joins 35 gay, straight, married and single celebs such as Tyra Banks, Michael Jackson, Mariska Hargitay, Elton John, Andy Cohen, Katy Segal as well as Kim Kardashian and Kanye West who had two of their four children born via surrogate, and Sarah Jessica Parker who has surrogate twins.

Hollywood and the public marvel at each new arrival often with no mention of how the child came to be.  While some have made grand public announcements and a few celebs have openly expressed gratitude to the surrogate, there seems to be an unspoken “don’t ask” etiquette in interviews about the new baby, leaving an almost unnatural silence in place of usual chatter such as: “Who does the baby look like, his mother or father?”

Traditional surrogacy, prior to the Baby M Case involved inseminating a woman with sperm – often, but not always – of the contractual father-to-be. Since 1986 when Mary Beth Whitehead battled for custody of her daughter Sarah (known as Baby M), the mega-billion-dollar fertility industry devised a way to avoid mothers fighting for custody of “their” child by creating “gestational surrogacy”- the current norm – that involves a carrier being implanted with a third-party’s fertilized egg, and incubating the unrelated fetus. The child is thus unrelated to the gestational carrier, greatly limiting custody claims.

For many, perhaps most, choosing to have a child by any means is a cause for celebration. Touting reproductive choice, freedom, and justice proponents argue any child who is wanted and loved is a thing of joy and everyone choosing to be a parent should be admired and supported, regardless of how parenthood is achieved, including the use of anonymous gamete and surrogacy as a reproductive “right.”

A Right?

Clearly all have a right to access to reproductive care and services. However, the fact is that no “right” or entitlement to have a child or be a parent exists. And certainly, there is no right to buy sperm or eggs or the use of a woman’s womb.

Feminists are divided on surrogacy, as they have long been with prostitution, with some arguing for women’s autonomy, legalization and regulation, and others concerned about exploitation and commodification. Yet, many woman’s organizations, intellectuals, pro-life groups, politicians, scientists and citizens from different cultural backgrounds and countries call for the universal elimination of surrogacy, paid or unpaid.

Feminists do not take an opposing position on surrogacy easily, inasmuch as many women – alone or with a partner – are consumers of surrogacy services.  It is thus all the more notable that women’s rights scholars such as Phyllis Chesler and Gloria Steinem opposed a NY bill (which passed in May, 2020) to legalize paid surrogacy saying it “turns women’s bodies into commodities and is coercive to poor women given the sizable payments it can bring.”

Gary Powell, a UK conservative political activist and longstanding advocate for gay and lesbian equality, writes,

As gay people, we cannot insist on the right to carry out practices that harm the rights of others. Rather than being an LGBT rights issue, surrogacy is a women’s rights issue and a children’s rights issue; and like the sale of human organs, it is not an activity that should be promoted or indeed permitted.

A Choice?

Defenders of surrogacy see it as a reproductive choice from a vast array of menu items ranging from IVF to adoption. However, these options are not available equally to all, but only to those who can afford them.

There are also legal restrictions as to what methodologies of obtaining a child are acceptable or not and even punishable. An “anything goes” ideology for becoming a parent does not include kidnapping, for instance, even if the child is loved and well-cared for, such as in cases like that of Carlina White and Kamiyah Mobley each of whom was kidnapped as an infant and raised as the child of their abductor for two decades.

And let us be clear: The word “donation” in regard to egg, sperm and womb is a euphemism intended to illicit a more altruistic tone to these purchases. Gametes –  egg and sperm are commodities being bought and sold most often via a third-party broker. While it is argued that payment is for services not the commodity itself, such “services” are seldom given without compensation. It is coercion and exploitation of the poor that prevents the sale of human organs and yet laws in all locals have not yet included a similar ban on gametes and wombs.

Anna Kerr, founder and Principal Solicitor of Feminist Legal Clinic Inc., Sydney, AU addresses the heart of the issue in regard to how much a of choice surrogacy is for the surrogates:

 … how often are these ‘choices’ being made under financial duress or in a context of social coercion?  …  Can we assume that women are truly acting of their own volition when in many cases their lives are so susceptible to the control of others? Or should we be skeptical of claims of ‘free choice’ and ‘consent’ in contexts that so clearly  … smack of abuse and shameless exploitation?

Desire, Love and Affluence

There is a belief that those who are eager to add to their families in a very intentional manner do so out of love and will be good parents. We also need to question the premise that being able to provide a child more material “advantages” – music or tennis lessons, private schools – makes for a happier, more well-adjusted child than those raised by less affluent biological parent or parents.

More importantly, the vetting of prospective adopters has missed adopters who physically, emotionally and sexually abuse, abandon, and even kill, children they sought out, paid high fees for, and were entrusted with.  Those who contract for surrogate births undergo no home studies. They are screened only by their ability to pay. At least one surrogate baby was placed with a man convicted of a sex crime.

Another common American ethos is that people “deserve” or are entitled to that which they can afford, a dangerous argument that would justify – even condone? – wealthy deviants who partake in sex tourism to countries with legalized prostitution and unknowingly purchase services trafficked of sex workers as young as twelve.

Payment

Those in favor of surrogacy point out that women voluntarily “choose” to be surrogates and are paid. However, compensation for time and labor does not necessarily make a transaction free of exploitation.

India, once the  go-to epicenter for commercial surrogate births, was forced to ban international surrogacy in 2018 as a result of a multiple concerns, according to the website Surrogate.com, including:

…unethical treatment, poor living conditions and exploitation. To keep up with demand from international intended parents, Indian surrogacy agencies effectively ran ‘baby factories,’ where Indian women were forced to live until they gave birth to the intended parents’ babies — with usually no assistance for the family they had left behind while pregnant.

In addition, the surrogates in India only received a fraction of the expenses that intended parents paid the surrogacy agency — only $4,000 to $5,000 for compensation. With agencies charging more than double that in total, surrogates were commonly exploited . . .

Drawn into surrogacy by poverty and lack of education, many  stayed as a result of being shunned within their communities and because one round of surrogacy is not a sustainable income “effectively became ‘baby-making machines’ year after year.”

Domestically, the exploitation is more covert and insidious. Surrogate websites, such as West Coast Surrogacy, paint this rosy picture to solicit surrogates using another euphemism, “gift” though gifts are not paid for by recipients:

It takes a special person to become a surrogate mother. The gift that surrogates provide is both remarkable and generous …

It goes on to speak of “the feeling of joy you experience as a surrogate …”

Those who become a surrogate mother (also known as a gestational carrier) provide a gift of unparalleled compassion for couples and individuals experiencing infertility or who are LGBT.

Most surrogates say their motivation is altruistic to help individuals or couples who want desperately to be parents and can’t, but they also report needing the money and universally agree that the financial “compensation” was a major factor. According to Surrogate.com the average “base pay” for surrogacy is $25,000 with additional payments for expenses such as medical, clothing and travel. At West Coast Surrogacy “experienced” surrogates can be compensated as much as $60,000, in part because California’s liberal surrogacy laws attract clients from all over the world.

Exploitation

Surrogacy is an extension of a long history of low-paid female service workers such as housekeepers, nannies and nursery school aids who toil for the more well-to-do.

With the exception of a family member or close friend choosing to carry child for another, all surrogacy contracts involve payment to entice women in need of cash. It is the poor, or those in temporary need, who agree to rent their bodies and sell the end human “product” to those who can afford to buy a human infant. Charis M. Thompson, London School of Economics, writes:

The level of social, political, and economic disenfranchisement of the reproductive labourer is taken to be an indicator of the level of exploitation involved.

Surrogacy involves a contract prepared by the surrogacy businesses or the paying client, known as “intended parent(s).”  Because doctors implant multiple embryos to ensure a higher success, surrogacy often produces twins, triplets, and even four or five babies. The contracts thus include stipulations such as “selective reduction” of multiples and termination if it appears the child may not meet the requirements of those paying for it.  Such draconian terms led attorney Harold Cassidy to argue that surrogate contracts are “unconscionable” with the terms that are “manifestly unfair or oppressive.”

Surrogates who find themselves unable to comply with such contractual agreements have led to multiple protracted lawsuits and appeals such as the case of Melissa Cook, a 47-year-old California surrogate who became pregnant with triplets. Cook sued the commissioning father – a single 50-year-old Georgia postal worker, who is deaf, mute, and lives with his elderly parents – because he wanted her to abort one of the fetuses. The triplets have remained in the custody of the father as the case has wound through courts and appeals, despite the father’s sister’s claim he is ‘abusing’ the children.

Risks

Gestational surrogacy involves the dehumanization of a woman’s body to become a womb for hire – a handmaid. As human incubators they risk ovarian hyper stimulation syndrome (OHSS), ovarian torsion, ovarian cysts, chronic pelvic pain, premature menopause, loss of fertility, reproductive cancers, blood clots, kidney disease, stroke, and high blood pressure, pre-eclampsia, gestational diabetes, hyperemesis gravidaru (severe persistent nausea and vomiting), loss of the ability to have future full-term pregnancies, postpartum depression, and, in some cases, death.

In addition, women who are paid to produce and sell their eggs, undergo months of hormone injections prior to the surgical retrieval. Risks include bleeding, infection, ovarian hyperstimulation and damage to the bowel or bladder.

Risks to babies born of anonymous assisted reproductive technologies employed in surrogacy, include: preterm birth, stillbirth, low birth weight, fetal anomalies, and higher blood pressure. Additionally, commercial surrogates agree to detach and dissociate themselves emotionally from any and all maternal hormonal feelings toward the being growing inside them, stoically overriding these natural instincts in order to consider the child they are carrying to be “not theirs.” This detachment causes stress which releases cortisol into the fetal growing brain.

Surrogate-born babies suffer additional emotional trauma resulting from separation at birth, also known as primal wound. Myron A. Hofer, B. Perry et al., Allan N. Schore, James Fallon and others have reported the lifelong neurological damage that results from traumatic depravation of maternal-infant attachment formed in the womb as a biological function. The unborn fetus shows a preferential response to maternal scents and sounds that the newborn expects to continue after birth, preferring the sound and smell of experiences in utero. Using MRI’s, neurologist Schore found that early separation from the gestational caregiver to be the genesis of adult personality disorders involving a person’s ability to trust, bond, learn, and emotionally attach.

Legal/Illegal: Where and Why?

In addition to being exploitative, most countries recognize surrogacy as baby-selling or human trafficking, which is universally illegal.

The US is one of only nine countries that legalizes surrogate pre-birth contracts. It was the first country in the world to recognize parentage created by payment and contract. Since 1985, the United States has become the preferred surrogacy destination for international parents such as British citizens Elton John and David Furnish as well as others from Australia, Canada, Spain, and Germany.

As of April 1, 2020, British taxpayers will be forced to “pay clinical negligence claimants six-figure sums to pursue commercial surrogacy abroad, which is forbidden under UK criminal law.” Additionally, lack of international regulation, can create citizens born to surrogates who are parentlessness and/or statelessness.

Within the U.S. the laws vary state-to-state, however, with some states allowing only unpaid, altruistic or in-family surrogacy while other states ban all surrogacy contracts. Some states ban and penalize the practice and some regulate it one manner or another.  It is important to recognize why the vast majority of countries — and many US states — restrict, prohibit or strictly regulate surrogacy or criminalize the practice.

Harold Cassidy who represented Mary Beth Whitehead, mother of Baby M, argued in the case of Melissa Cook that surrogacy reduces women to a “breeding animal or incubator,” and that pretending the surrogate “has absolutely no interest in what happens to the child is a cruel notion to both the mother and the child.”

The Children

Surrogacy intentionally creates motherless children despite society’s “best interest of the child” policies that guide all other aspects of family law. Yet the children produced — who are the entire reason and end goal of surrogacy — are not party to the contractual agreement.

There is nothing socially redeeming about surrogacy as there is with adoption, which purports to “rescue” orphans. It is purely a self-serving act based on a desire to parent and feelings of entitlement to a child. In fact, those who choose surrogacy are choosing not to adopt. Surrogacy is chosen over adoption so as not to have birth parents to deal with and because of the desire to have a child that is genetically connected them (biogenetic bias). Yet,  ironically, the child is often denied knowing half of his genetics and blood kin.

The legal necessity for the contracting parents to adopt the surrogate birthed child produces a falsified birth certificate, as do all adoptions (including step-parent adoption) that obliterates all or half of the child’s genetic heritage and lists the paying contactors as the only parents, as if the child were naturally conceived and born to just one person, two men, two women, or the heterosexual couple paying for the transaction.  Many posit that the denial of the right to true identity is one of the reasons the US is the only nation that has not ratified the UNCRC – Convention on the Rights of the Child.

Many of the issues children of surrogacy face, such as loss of one or more genetic forebearers, have been well documented by adoptees and designer contract offspring (aka “donor” offspring).  For generations, many have searched for their true genetic heritage, medical history and kin, which is understandable given the fact that genealogy is the “second most popular hobby in the U.S. after gardening, and the second most visited category of websites, after pornography” according to ABC News.

In addition to the natural desire to know one’s roots, children created from anonymous gamete deal with unknown familial medical history and the very real dread of unknowingly meeting, dating, even marrying a sibling or other blood kin.

The human products of these contractual, anonymous conceptions are at risk for genealogical bewilderment and will inevitably ask some form of: “Where do babies come from?”  Those raised by one or two mothers will undoubtedly question who their father is while those raised by a single dad or two dads will ask: “Who is my mother?” This question could be quite complicated, as noted by Molly Sheahan, graduate student at the Pontifical John Paul II Institute for Studies on Marriage and Family:

… [in] the most routine of surrogate pregnancies or donor conceptions, a child can have as many as six parents: the genetic father, the genetic mother, the surrogate mother, her spouse, and the intended parents.

Abbie Goldberg, Professor of Psychology, Clark University is one of many adoption professionals who now strongly recommend  full, honest disclosure of a child’s origin story by the time they reach adolescence.  Children born via surrogacy or other anonymous reproductive techniques who are told the truth have to deal with the anonymity and the monetary factors of their conception.  Others who are raised by heterosexual married couples, and may or may not be related to their social father, are often not told.

One young man, conceived via traditional surrogacy, expresses very poignantly how he feels about it:

How do you think we feel about being created specifically to be given away? … I don’t care why my parents or my mother did this. It looks to me like I was bought and sold. You can dress it up with as many pretty words as you want. You can wrap it up in a silk freaking scarf. You can pretend these are not your children. You can say it is a gift or you donated your egg to the IM. But the fact is that someone has contracted you to make a child, give up your parental rights and hand over your flesh and blood child. I don’t care if you think I am not your child, what about what I think!  . . . When you exchange something for money it is called a commodity. Babies are not commodities. Babies are human beings. How do you think this makes us feel to know that there was money exchanged for us?

Reproductive businesses flourish while these ethical questions are still being debated:

  • Do all reproductive choices equally protect the rights of the human being conceived or the women being utilized for eggs or womb?
  • Do the alleged “rights” of would-be parents override the rights of the human being created as they grow into adults?
  • Where is the line between third-party anonymous designer contractual conceptions and eugenics when egg and/or sperm sales are contingent on the physical and intellectual attributes of the “donor”/seller with college campuses and medical schools specifically targeted for sperm and egg “donors?”
  • Is it fair to continue to intentionally, and some might say selfishly, creating motherless children?
  • Why do we bemoan fatherlessness among minorities and in inner-cities and applaud the creation of motherless babies by the wealthy?

Kerr very accurately foresees surrogacy and other reproductive technologies creating “an Atwoodian dystopia that should provide the basis for litigation well into the future.  … international human rights provisions, do not adequately recognise and protect the natural and fundamental bond between a mother and the child she carries and must urgently be strengthened to prevent further development of a culture in which women’s reproductive capacities are commandeered and their offspring traded as mere commodities by wealthy men [and women].”1

  1. For additional information see:

    Surrogacy as the Sale of Children
    Surrogacy and the Politics of Commodification
    Surrogacy: Ethical and Legal Issues
    The ethics of surrogacy
    Surrogacy: Why the world needs rules for ‘selling’ babies
    Fundamental and legal problems for surrogate motherhood
    Global Perspective, All surrogacy is exploitation – the world should follow Sweden’s ban
    Inputs on gestational surrogacy for the OHCHR Special Rapporteur on the sale and sexual exploitation of children
    Handmaids for Hire: Should Commercial Surrogacy be Legalized In NYS? Surrogacy Has Now Become A Way of Slicing and Dicing Biological Motherhood into Three Parts.
    Surrogacy: Why the world needs rules for ‘selling’ babies
    Eggsploitation, documentary
    The Center for Bioethics and Culture Network (CBC)
    All Ways of Family Building are NOT Equal and do Not Protect Child’s Rights.
    Designer Conception: Interview with Zave Fors, a product of designer conception discussing his feelings about it []

Mirah is author of two internationally acclaimed books, more than 200 published articles, and cited in twenty professional journals having been researching, writing and speaking about American and global child adoption, restoration of adoptee rights, as well as contract anonymous conception and surrogacy since 1980. More at her website and Wikipedia. Read other articles by Mirah, or visit Mirah's website.