By Hannah Rahim
In January 2024, Pope Francis called for a universal ban on surrogacy as a threat to global peace and human dignity, claiming that the practice is a “grave violation” of the mother and child’s dignity and based on the “exploitation of situations of the mother’s material needs.” Surrogacy raises complex ethical and legal issues, particularly in cases of international surrogacy, where people seek surrogacy services from another country. There is currently no regulation of international surrogacy. Creating such regulation is important to allow appropriate access to surrogacy services while mitigating its harmful consequences.
Background on international surrogacy
International surrogacy occurs when people send their gametes or embryos to be gestated by a woman residing in another country. The child born is then given up by the birth mother to the commissioning parent(s) usually in exchange for financial compensation. Laws prohibiting surrogacy in some countries can motivate people to seek surrogacy services outside of their home country.
The U.S. is one of the few countries that allows commercial surrogacy. Many countries, including the U.K., Canada, New Zealand, Australia, and Brazil prohibit commercial surrogacy, and other countries, including France, Germany, Italy, and Spain prohibit both commercial and altruistic surrogacy. In countries that allow surrogacy, people may still encounter financial barriers, which may drive them to seek surrogacy internationally. For instance, surrogacy costs around $100,000 in the U.S. but around $25,000 in lower-income countries like India.
In the U.S., there is no federal law on surrogacy, and state regulations are highly variable. California and Florida have the most surrogacy-friendly laws, which has led to a concentration of surrogacy in these states. For instance, the 1993 California case Johnson v. Calvert gave contracting parents the right to custody over a child born through surrogacy. On the other hand, states like New Jersey and Michigan have held that surrogacy contracts are invalid and unenforceable. Pro-surrogacy states like California have begun to encourage surrogacy as a business, welcoming domestic and international couples. But the agencies that match commissioning parents and surrogates are not regulated, which creates a market where surrogate women or intended parents can be harmed by deceitful organizations.
Ethical arguments against international commercial surrogacy
One of the most common concerns with the commercialization of surrogacy is that the practice commodifies and exploits women and their reproductive capacities. The financial compensation provided from surrogacy may coerce women at a socioeconomic disadvantage to serve as surrogates when they would otherwise not want to do so. This power dynamic may be particularly significant in cases of commissioning parents from high-income countries like the U.S. seeking surrogacy services from low-income countries because of the lower cost. In some cases, a lack of adequate medical care and advice provided to birth mothers can result in harmful ramifications for the health of the woman and infant. Additionally, the emotional toll of giving up a child with whom a birth mother might have developed an intimate connection could cause the birth mother psychological harm.
Commercial surrogacy has also been criticized for treating children as commodities, because a child is created with the intention of being “sold” for a woman’s financial gain. Commercial surrogacy can risk children being born into uncertain family situations. For instance, in Taiwan, a surrogate and the intended parents could not agree on the amount of compensation, so their baby girl was left with no parents and put up for adoption.
Ethical arguments for international commercial surrogacy
International surrogacy can be valuable in helping intended parents fulfill their wish for a child if they are unable to have children. Advocates for commercial surrogacy argue that financial incentives alone do not compromise informed consent and in fact, a lack of payment for surrogacy services could be exploitative. In cases where women in poverty choose to be paid to be a surrogate as a last resort, prohibiting them from doing so might further constrain their already limited options, forcing them to turn to less desirable alternatives.
Moreover, issues relating to the exploitation of surrogate women or associated health risks can be best addressed by regulation that accompanies the legalization of commercial surrogacy.
The need for regulation of international surrogacy
International surrogacy can create complex legal issues relating to determining the child’s legal parentage and nationality. In countries where children born through surrogacy are not recognized, they may be stateless. Many jurisdictions do not have explicit legislation that addresses parentage following the birth of a child from surrogacy, which could leave children without parents to raise them.
Regulation of international surrogacy should outline how a child’s legal parentage and nationality should be established, specify under what circumstances financial payments can be made for surrogacy, create appropriate minimums and limits on financial compensation, regulate brokers or agencies who manage surrogacy, and address the degree to which surrogacy contracts are binding.
Strategies for regulating international surrogacy
Developing a formal international agreement governing international surrogacy could be valuable to create a consistent regulatory regime. This could take the form of adapting and expanding an existing convention such as the 1993 Hague Convention on Intercountry Adoption. Alternatively, a new international instrument on surrogacy could be developed. Scholars have proposed that a new international regulatory framework could adopt an approach based on fair trade. Fair trade standards such as payment of a fair price, good working conditions, and transparency and accountability are also relevant to the regulation of surrogacy. However, international agreements are limited in their enforceability – countries have to consent to be bound by the agreement, and even when parties violate the agreement, international bodies cannot interfere with state sovereignty.
International surrogacy could also be regulated through domestic law. For instance, India has proposed legislation that would resolve legal disputes arising from international surrogacy, such as cases of conflict between Indian law and the law of the commissioning parents’ home country. Treating surrogacy as a legitimate avenue for earning money could help to reduce the stigma surrounding the practice and facilitate regulation. Countries’ immigration systems could also be useful in regulating surrogacy because babies must be granted a visa or passport to migrate from their birth country to their commissioning parents’ country. Because international agreements can take years to develop and implement, domestic strategies will be valuable to have more immediate effects.
