Ethics of Surrogacy

Dear Asian Youth,

In debates across the world regarding the legalization of surrogacy, the labels “conservative” and “liberal” mean little to nothing. Despite the controversial nature of the topic, it is one of the few social issues that provokes wildly different opinions among political parties. Earlier this year, when New York became one of the last states in the U.S. to legalize compensated surrogacy, many were in shock that a historically liberal state opposed a seemingly progressive viewpoint that would benefit millions of infertile women along with the LGBTQ+ community. However, while some progressives positively view providing women with agency over their bodies, notorious liberal feminists such as Gloria Steinmen have strongly opposed these “progressive” bills for allowing “profiteering from body invasion” (nytimes). 

For many, the decision between whether or not to legalize surrogacy is a no-brainer. Infertility is a common and often devastating condition. In the U.S. alone, about 6% of married women from 15 to 44 are infertile, while about 12% of women in the same age category are very unlikely to become pregnant (CDC). The disappointment caused by reproductive issues, such as the inability to carry a child is so profound that it is sometimes cited as a form of trauma linked to great feelings of longing (APA). Surrogacy provides an alternate way for some of these women to produce children with genetic ties to their parents, and often eases the disappointment of infertility. Plus, surrogacy is a common option for many LGBTQ+ families who similarly wish to create children with genetic links to at least one of the parents. For these reasons and many others, between 1999 and 2014, gestational surrogacies resulted in the recorded births of 18,400 infants (CDC). So it may be baffling why surrogacy is such a hotly debated issue, but the complexities and ethics of such a personal and physically demanding procedure blur the lines between right and wrong. 

To start, one must keep in mind that most countries that ban surrogacy only ban commercial surrogacy, not altruistic surrogacy. A surrogacy is automatically considered a commercial enterprise if the surrogate makes a profit by receiving money separate from the reimbursements for pregnancy-related expenses. On the other hand, altruistic surrogacies occur when women choose to carry another’s baby solely out of kindness. These agreements do not hold up in court. While the public shows little concern for altruistic surrogacies, commercial surrogacies are often criticized. 

The main argument against the legalization of commercial surrogacy is that due to the inherent risks of pregnancy, carrying a baby cannot ethically be considered a form of labor. Most people are already aware of the common dangers associated with pregnancy. These include everything from morning sickness and weight gain to seizures, gestational diabetes, urinary tract infections, depression, and anxiety. Those who receive fertility treatments are more likely to undergo multiple order pregnancies (twins, triplets, etc.), which are inherently more risky. Only recently did the American Society for Reproductive Medicine recommend single embryo transfers to mitigate some of these risks. But as of 2018, a mere 15%–20% of clinics follow single embryo transfer norms (NCBI). 

Additionally, an often overlooked question is whether the surrogate mother will form a strong attachment to the child, even if she is mentally aware that the baby is not “hers.” While uncommon, surrogates may be ill-prepared to hand over their children after acting as their carrier for nine months (Oxford Academic). The famous case of Baby M represents the consequences of this worst case scenario. In 1984, Mary Beth Whitehead entered a contract and promised to act as a surrogate for William and Elizabeth Stern. For $10,000, Whitehead was artificially inseminated and gave birth to a baby girl, named Baby M in court (NYTimes). After giving birth, Whitehead changed her mind and instead of accepting the $10,000, she fought for custody over the girl, forcing the Sterns to sue. While the New Jersey Supreme Court invalidated the surrogacy contract on the basis that it was unethical, the court did give parental custody to the Stern couple as it was in the best interest of Baby M. Today, because surrogacies are more common, there is an established precedent that surrogates have no parental claim over the child whatsoever, despite any attachment they may grow to have. This is especially because of the rise of gestational surrogacies. Traditional surrogacies occur when surrogate mothers undergo artificial insemination with the intended father’s sperm. Through this procedure, the surrogate mother becomes a genetic parent of the child. But in gestational pregnancies, the embryo is created via in vitro fertilization using the egg and sperm of the intended parents (or donors) and transferred to the surrogate. So, even if the surrogate feels an emotional attachment to the child they are carrying, because the child is not biologically related to the surrogate, the legalities are more straightforward. In this case, surrogates are legally obligated to hand the child to its intended parents, forcing many to wonder whether it is fair to subject women to this potential loss. All in all, surrogates have to consider that they may feel an unprecedented attachment to a child they have no claim over. 

But of course, there are many dangerous jobs. While perhaps not as unconventional as carrying a fetus for nine months, some employees must accept certain physical and emotional risks. This type of contracted labor is perfectly legal and acceptable, so long as the employee is completely aware of these physical, emotional, and legal risks. What makes surrogacy any different? The real issue is that this precarious situation leaves a lot of room for the exploitation of women, specifically low-income women. After all, can it truly be considered consent when one must choose between agreeing to be a surrogate and making enough money to survive? Is it fair to put somebody in a situation where they have to consider these unconventional and potentially damaging risks? While studies are limited, the ones that do exist show proof of exploitation. Ukraine is an increasingly popular option for surrogacy, with a focus on serving foreign clientele. Most notably, the Ukraine fertility clinic Biotexcom dominates two-thirds of the surrogacy market. Unfortunately, many who once worked for Biotexcom are accusing the company of exploitation. Surrogate mother Maria states that despite her reservations, she could not turn down the 15,000 euro stipend, as it would greatly benefit her family. However, throughout her pregnancy, she cites feelings of moral and physical exhaustion, while Anastasia Aleksandrova, senior manager of Biotexcom’s English department, herself states, “This process can break a woman if she’s too emotional” (ABC). Even though Maria signed off on these terms, claiming she was willing to take the risks of acting as surrogate, the financial pressures involved make it questionable whether these standards are ethical. Another surrogate mother who worked for Biotexcom, Alina, further exposes the company for their inhumane practices. Similar to Maria, Alina became a surrogate mother because she was struggling to make enough money. She claims the company put her in a small apartment 32 weeks into her pregnancy with four other surrogate mothers, where she had to share a bed with one of them. She states, “‘Most of the women come from small villages and are in hopeless situations… We spent the first week just lying around, crying. We couldn’t eat. This is a typical situation for surrogates’” (Aljazeera). She goes on to claim they were treated with cattle, stating she would be threatened with no payment whenever she tried to expose the company to the intended parents. Her health was completely disregarded, except in relation to the baby. Again, the financial pressure burdening Alina influenced her moral beliefs and forced the woman to compromise her wellbeing. Providing lower-income women with a choice between unwittingly selling their rights and body versus lacking the funds to survive is not in fact a choice. 

This argument may sound incredibly familiar because it is the exact same reasoning behind the ban of compensated organ donations. Despite copious organ shortages that threaten millions, only altruistic organ donations are accepted. The World Health Organization itself stated that this was “…to take measures to protect the poorest and vulnerable groups from transplant tourism and the sale of tissues and organs” (NCBI). These global standards were implemented in response to the exploitation of underprivileged communities in places such as Pakistan, where the illiterate and impoverished undocumented immigrants, refugees, and prisoners “chose” to donate their organs despite the long-term health consequences of such organ removals (Wiley). Many are quick to point out that commercial surrogacy must be banned just like compensated organ donations, since the ethics behind such ideals are more or less the exact same. 

Unfortunately, despite the intentions behind the ban on organ donations, this ban is largely ineffective. The demand for organs is everlasting, but the shortage of altruistic donations demonstrates that kindness itself is not enough. In turn, more and more desperate people are turning to the black market, which only furthers exploitation because now not only are impoverished individuals exploited, but the unregulated nature of the industry means they deal with worse conditions and less rights. Understanding the issues with banning organ donations helps put the ban of commercial surrogacy into perspective and demonstrates what will happen if commercial surrogacies are completely banned. In 2014, when the Indian government started drafting bills to ban commercial surrogacy, Hari G Ramasubramanian, a Chennaibased surrogacy lawyer, argued that the practice will not end and that, “The government is just pushing it to the black market” (Economic Times). So while many liberal feminists argue that banning commercial surrogacy will put an end to the exploitation of women’s bodies, in reality, it will only force the industry into the black market and further endanger underprivileged women. 

Instead, what we actually need is more regulation. Right now, a lot of surrogacy rights act in the best interest of the intended parents and the child, but very few actually protect the wellbeing of the surrogate. Dr. Ranjana Kumari, the director of the Centre for Social Research, a nonprofit that pushes for surrogacy reform believed that, “Banning never works. It hasn’t worked for drugs or alcohol. How will it work for something which is so human?” (Time). Rather, she wants regulations that ensure surrogates receive medical insurance, legal protection, and minimum compensation. Just like the need for organ donations, the market for surrogates is everlasting. So, if the concern is that surrogate women will be exploited, more parents should be encouraged to find a surrogate through legal routes, so the rights of the surrogate are protected. 

With this perspective, New York’s new policies are not an attack on women’s rights, but the exact opposite. Instead of furthering inequity, the new Child Parent Security Act includes the surrogate’s right to make health decisions regarding herself and whether to consent to potentially dangerous procedures such as a c-section, multiple embryo transfer, or termination, the right to independent legal counsel paid for by the intended parents, and the right to insurance (NYSBA). While these rights may seem like the bare necessities, the ones listed are unique to New York’s surrogacy bill, and rarely found in other parts of the world. Instead of furthering inequity, New York is now a leader in the movement to legalize and regulate commercial surrogacy, and it would be incredible to see more states and countries following in New York’s footsteps. 

-Lora Kwon 

Cover Photo Source: The New York Times