Infertility is a painful burden to bear and a growing problem globally. The World Health Organization estimates that currently, about 1 in 6 adults around the world experience infertility.
As infertility rates rise and medical technology advances, couples are turning to new, alternative ways of bringing children into the world. One such method is surrogacy—a process by which one woman becomes pregnant in order to give the child to someone else at birth.
Surrogacy has been hailed as a great option for couples trying to start a family. But the truth is, surrogacy treats children and women as commodities to be bought and sold, rather than as human beings with intrinsic value.
The Basic Facts about Surrogacy
In traditional surrogacy, the pregnant woman is both the biological mother and the gestational mother of the child. In gestational surrogacy, the surrogate is impregnated with an embryo to which she is unrelated. The embryo may be biologically related to both, one, or neither of the intended parents. Today, gestational surrogacy is the most common form of surrogacy.
Surrogacy can be commercial (in which surrogates are paid a fee) or altruistic—where compensation is limited to expenses, such as health care and travel. Although commercial (or for-profit) surrogacy is a pricy process that costs tens of thousands of dollars, demand for it is soaring. The global commercial surrogacy market is expected to grow to [Read more link here] $129 billion by 2032.
What Does the Law Say?
There are no international standards regulating surrogacy. Each country must decide its own
way of dealing with the practice. At the heart of the matter, though, is one basic question: Is there a human right to have a child?
International law has ruled that women ought to be free to decide when and how many children they have. Countries have agreed that there does exist a right to raise a child who has already been born. But there is no recognized right to have a child in any treaty or customary law.
States are therefore free to regulate or prohibit surrogacy without violating human rights.
However, regulating surrogacy is complicated, because it doesn’t fit under any existing category of law.
Surrogacy agreements resemble typical contracts, but they may be unenforceable as contra bonos mores, or against public policy, because the objects of the contract are human beings.
For example, what if one of the parties to the contract changes their mind? An example of the legal mess that ensues is the story of “Baby Gammy.” Baby Gammy was diagnosed with Down syndrome in utero. When his Thai surrogate mother refused to abort him, the contracting parents took his twin home to Australia but left him behind.
Adoption law is also not appropriate for surrogacy, because international law prohibits the surrender of the child before birth (Convention on Protection of Children & Cooperation in Respect of Intercountry Adoption, art. 4) and surrogacy agreements lack the legal protections for children’s rights found in adoption laws.
Finally, surrogacy also undermines the legal maxim mater semper certa est, “the mother is always certain,” because in surrogacy the woman giving birth will not be the child’s legal parent and may even not be related.
The Surrogate Mothers
In surrogacy, the reproductive capacities of the birth mother are reduced to a service rather than her unique gift. It exposes her to personal and economic exploitation. Surrogacy invariably leads to the objectification of women.
We see this especially in the boom of surrogacy tourism, in which (typically) wealthy people who want to become parents enter into surrogacy agreements with women in developing countries, often those with lax surrogacy regulations. Today, countries with some of the biggest international surrogacy markets include Georgia, Mexico, and Kenya—all nations with higher-than-average poverty rates.
In India, the exploitation of women in financial need became such a problem (86% of surrogate mothers in Anand, India, said poverty was a decisive factor in becoming surrogates) that the country banned commercial surrogacy altogether.
Surrogacy also puts the birth mother at higher risk for many serious health complications.
Surrogate mothers are five times more likely to deliver at an earlier gestational age and are also significantly more likely to experience postpartum depression following the delivery of surrogate children than after delivering their non-surrogate children.
Gestational surrogates are at higher risk for pre-eclampsia and high blood pressure. And surrogate pregnancy can cause serious health issues such as Ovarian Hyper Stimulation Syndrome (OHSS), chronic pelvic pain, premature menopause, reproductive cancers, blood clots, kidney disease, stroke, and more.
The Kids Are Not Alright
But what about the children being born? Is surrogacy good for them?
Sadly, no. Surrogacy treats the child as a product to be purchased rather than a person who has the right to be conceived in love and know their parents and country of origin. It intentionally separates a child from one or both biological parents. The child is valued not for her intrinsic dignity but for whether she fulfills the adult parents’ wants.
This tendency to view a child as product also makes her seem disposable. For instance, sometimes biological parents will demand that the surrogate mother abort the unborn child if something goes wrong. This has happened in cases when the parents divorced, when the child had a disability like Down Syndrome, or even when a surrogate mother has triplets and the parents had “ordered” twins.
According to international law, children have a right to “be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.” (Convention on the Rights of the Child, art. 7)
But surrogacy may violate children’s right to know their parent(s) and have legal identity and, in cases of international surrogacy, nationality.
Take the story of Baby Manji. A Japanese couple hired a gestational surrogate in India to give birth to a child for them. The child was conceived using the husband’s sperm and a donor’s eggs. Then, before Baby Manji was born, the couple separated. The mother did not want the baby anymore, although the father did. Ultimately, the child had three mothers—the intended mom, the egg donor, and the surrogate mother. Her true nationality couldn’t be determined, either. Cases like these demonstrate the identity crisis that can occur to children born of surrogacy.
A Better Way
While the desire to help infertile couples is admirable, surrogacy is not the answer.
As WYA’s White Paper on Surrogacy states, “The myriad problems which have arisen from disputes regarding surrogacy agreements point to the fundamental problem undergirding surrogacy: making a human body the subject or means of a contract treats a human being like an object.”
Thankfully, there are other paths to parenthood that do respect the dignity of the human person. Organizations like FEMM are helping couples treat the hormonal disorders that often cause infertility. And of course, there is still a great need for parents who are open to traditional adoption. The best solutions to infertility are ones that honor the dignity of everyone involved, from the parents to the child.
Written by WYA Staff
Published June 28, 2024
