International surrogacy: reproductive tourism at its extreme

Reproductive tourism has, alongside other forms of medical tourism, grown in scale and numbers as globalisation has gradually erased many economical and cultural borders. Transitional capital economies in Southeast Asia, technological advances and free trade pave the way for trans-national fertility ventures that compete for the interest of the comparably affluent, yet ever more infertile, Western couples. It is estimated that one in six couples in the UK are infertile,1 with the proportion increasing greatly as women delay motherhood to focus on careers, because of the rising cost of living, and for other reasons.1 ,2 These factors make the demand for fertility services greater than ever, as evidenced by the recent increase in cross-border surrogacy cases brought to the high court (eg, Re X and Y 9 December 20083 and Re L 8 December 20104) and the increase in celebrity couples seeking surrogacy, Sir Elton John and David Furnish for example.

In the last decade, reproductive tourism has, alongside escalating demand, become a multimillion industry, stimulating national economies and providing jobs in both the service sector and healthcare.5 In India alone, reproductive tourism is estimated to be worth from US$500 million to US$2.3 billion.6 ,7 Other prominent markets for medical tourism include Singapore, Malaysia and Thailand—Southeast Asian countries characterised by sophisticated medical infrastructure and expertise, undefined legal framework, and economical factors allowing ready access to western couples.8

Reproductive tourism is a particularly lucrative business for the healthcare sector in these Southeast Asian countries—so much so that many governments divert part of the national health budget to the private sector in order to attract more international ‘customers’.5 India further stimulates privatised healthcare and medical tourism through decreased interest rates on loans and subsidised pharmaceutical expenses for private hospitals and clinics. The Indian government has even gone so far as to institute a medical tourist visa in order to attract more reproductive tourists.5

Often condemned by the West, this is paradoxically similar to many of the policies in Eastern European countries and some of the states in the USA—transforming healthcare to an industry with aims of corporate profit.9 Asian countries in particular are moving away from the ideal model of a welfare state with free nationalised healthcare, spurring criticism from the international community, as this shift holds grave potential to increase global health inequality.6

Charged with debates around health injustice, exploitation and social subordination, commercial surrogacy is becoming one of the highest paid artificial reproductive techniques in Southeast Asia.5 Inter-country commercial surrogacy remains largely unregulated, and this discussion will in particular centre on the inherent ethical dangers of this situation as well as propose a solution to the problem. We will avoid the topic of altruistic surrogacy, where no money beyond expenses related to the gestation is paid; we will also differentiate between traditional surrogacy and gestational commercial surrogacy, focusing on the latter for ethical and legal clarity.

Pure gestational, or full, surrogacy is where gametes from the commissioning couple are fertilised in vitro and then transferred into a contracted surrogate mother's uterus by embryo transfer (IVF-ET).10 This leads to a setup where the intended parents are the genetic mother and father of a future child, who is carried to term by a genetically unrelated surrogate, unless donor gametes are used.

Traditional, or partial, surrogacy is the situation where the infertile couple uses intrauterine insemination to fertilise the surrogate's own egg(s) with the intended father's sperm.10 This creates a situation where the surrogate is both the genetic and gestational mother, and this is a topic for discussion in its own right.

Commercial surrogacy is defined by remuneration to the surrogate above and beyond reasonable expenses incurred by the pregnancy, as defined by the Surrogacy Arrangements Act 1985.11

Ethical concerns: autonomy and justice versus coercion and exploitation

In medical ethics, there are four established secular principles, originally proposed by Beauchamp and Childress in Principles of biomedical ethics:12 ,13

1. Respect for autonomy (liberty and individual capacity).

2. Justice (fair and appropriate treatment and distribution).

3. Beneficence (do good and balance benefits to drawbacks).

4. Non-maleficence (avoid harm and negligence).

If there is a conflict between any two of these, something that is not uncommon in increasingly complicated clinical practice, the physician faces an ethical dilemma.14

Debates on commercial surrogacy tend to focus on the protection of the surrogate mother's autonomy and the fine balance between beneficence and non-maleficence. Some feminists argue that it goes against human dignity to act as a ‘human incubator’, although some support the informed decision of a competent woman,15 ,16 whereas most social liberalists argue that it is up to the individual to judge how their personal dignity is affected by their lifestyle choices.10 ,17 Every person has an indisputable right to personal autonomy and hence liberal individualists claim that women also have a reproductive right to choose to enter a commercial surrogacy agreement.18 ,19 Respect for autonomy implies respect for procreative autonomy,20 and a free society requires freedom of choice and freedom of individual prioritisation.21 ,22

Those who advocate for removing this liberty through international laws that prohibit surrogacy on the basis of risks to the welfare and personal health of the surrogate are met with arguments that other forms of employment available to women in these situations may actually be more harmful and abusive.23 Even if one cannot compare the risks of carrying a pregnancy with no risk, one should aim to compare it with the dangers present in the alternative workplace or from living in absolute poverty. It would be paternalistic and belittling to claim that well-informed women, in any economic situation, are incapable of taking a rational decision on this issue—to risk their lives for money.19 Freeman makes the point that women have long taken health risks during pregnancy, more so when obstetric care was less developed.24 Do we comment on the risks to bring a child into the world only now financial gain is mentioned?

Nevertheless, one still has to be wary of coercion, which could invalidate the surrogate's consent. Damelio and Sorensen18 argue an important point in that ‘paradigmatic cases of coercion involve limiting or removing an option, but surrogacy contracts actually present women with an additional option’. It is true that the introduction of lucrative commercial surrogacy agreements is only a proposed option for poor women in the developing world. However, it is also an alternative that sometimes cannot be ignored as the price of refusal is too high—that is, the surrogacy option can be seen as a coercive offer where consent cannot be given autonomously—consent as an act of desperation.5 ,18 ,23 This vulnerable situation is a fault of society, which has a duty to protect its members from absolute poverty by providing alternative sources of income and employment. Unregulated surrogacy services thus endanger the basic human right of liberty, which strengthens our belief that adequate legislation and a firm regulatory framework are crucial in making surrogacy a safe and respectable line of work.

The justice principle can be analysed from both an individual and international viewpoint, with the questions:

1. Does the gestational or genetic mother have the right to be the social mother?

2. Are we unconsciously supporting global injustice and exploitation by essentially allowing ‘rich couples’ to rent a ‘poor woman's’ womb?

From an international standpoint, question 1 requires the cooperation of countries participating in cross-border surrogacy to establish agreed legal frameworks to avoid future cases such as Re X and Y (a landmark UK case concerning the parenthood of twins conceived as a result of a commercial surrogacy agreement between a British couple and a married Ukrainian surrogate mother)3 and confusion regarding parental rights to the surrogate child. Most countries already have in place laws regarding the nationality and individual rights of the surrogate mother, commissioning parents, and children to ensure protection for a potentially vulnerable child.11 ,25 Legislation varies considerably across the world—an issue we will return to—but the question is, in our opinion, shifting from being an ethical dilemma to a practical problem because of wider acceptance of surrogacy.10

Question 2 remains under discussion. One first needs to define the terms injustice and exploitation. Injustice implies ‘lack of fairness’, whereas exploitation can be defined as ‘taking unfair advantage of another’—that is, the difference between the two lies in the degree of personal influence over profit. Exploitation in itself can be one of two forms: either there is ‘harmful exploitation’, where only one party benefits, or ‘mutually advantageous exploitation’, where both parties benefit but to a varied degree and therefore perceived as unjust.19 ,23 ,26

Wilkinson26 proposes the following analysis of exploitation in commercial surrogacy: ‘A transaction between A and B amounts to A's exploiting B if and only if: (a) the distribution of benefit and harm between A and B is (other things being equal) unjust (in A's favour); and, (b) B does not validly consent’. Only if both these questions are answered positively is the agreement exploitative. Ramsey27 states: ‘A person is exploited if they are harmed or treated unfairly by another party and if their choice is compromised. It is not a given that persons will be harmed in a surrogacy arrangement. The commissioning couple will receive a much-desired child and the surrogate mother… will have the knowledge that she helped them in a way no other could. She may also receive financial compensation for her role’.

In international surrogacy agreements, there is debate around unequal bargaining power between the two parties,28 an imbalance of power relations,29 and general economic and educational vulnerability of surrogate women that increases health injustice and stratifies reproduction.6 ,18 If true, this would represent exploitation according to the above principle of Wilkinson.26 It is therefore important to erase these differences in profit and power before entering into a surrogacy agreement in order to prevent exploitation. One needs to equalise the degree of benefit and harm across the board and provide safeguards to ensure that both parties of the arrangement are competent to give fully informed, uncoerced consent. Again, without legally enforceable surrogacy contracts and international guidelines, this cannot be guaranteed.

Monetary remuneration: changing the psychology of pregnancy

Surrogacy in its non-compensated altruistic form is generally considered a morally acceptable alternative to infertility treatments or adoption, if we use the major world religions as a barometer of general opinion as there is no large-scale survey of public moral attitudes on this issue (surrogacy is considered acceptable in most Christian Churches, Judaism, Buddhism, Hinduism and Shiite Islam but prohibited in Catholicism and Sunni Islam9 ,17 ,29–31). However, commercial gestational surrogacy with monetary remuneration continues to raise concern about exploitation and uncontrolled reproductive tourism.17 ,23 ,32 Critics of ‘for-profit’ surrogacy claim that the human body and sacred motherhood is transformed into a commodity that is no longer solely a personal resource but which can be sold, traded or rented at market value.6 ,18 ,33 Field34 further argues ‘that some things in life should escape the market economy’, drawing parallels with almost-universal laws against prostitution, trafficking, slavery, and trade in children or body parts. While it is true that humans should be considered too valuable to be for sale, semen and ova can be donated for compensation under current UK legislation,25 and the USA allows significant payments in return for semen and ova donation.9 ,35 ,36 The Ethics Committee of the American Society for Reproductive Medicine states ‘Although there is no consensus on the precise payment that oocyte donors should receive, at this time sums of $5000 or more require justification and sums above $10 000 are not appropriate’, and the USA even allows tax deductions for the practice.35 ,36 UK statute laws seem to protect the permanence of solid organs,25 ,37 thereby indirectly legalising the temporary lease of, for instance, a uterus, as would be the case in commercial surrogacy, although at present the act of formulating a surrogacy agreement is not enforceable.11 Importantly, clinical trials often involve payment for the unknown risk to the subjects’ organs or health when testing medications and therapies, which must have prior approval by an ethical committee. The widely reported PAREXEL trial at Northwick Park Hospital, London, UK (March 2006), which resulted in six previously healthy subjects developing severe morbidity, did not lead to a ban on phase III clinical trials on healthy volunteers in exchange for payment.38 Furthermore, as discussed above, banning commercial surrogacy would deprive a woman of her basic right to autonomy22—which would be a greater ethical offence than allowing a competent woman to take full responsibility for her actions and personal choices in life.

Bromham39 made another important comment on the exploitation issue in commercial surrogacy: ‘To induce anyone to undertake similar employment without reasonable payment would certainly, in other fields, be regarded as exploitative. With surrogates, the reverse seems true and the payment of a fee to a surrogate seems to be the major factor linking surrogacy with accusations of female exploitation’. Adequate monetary compensation may address the ethical argument of exploitation by balancing the distribution of harm and benefit between the parties. Surrogates may be able to demand a range of fees for their services depending on demand and reasonable expense, although the argument that surrogates may be chosen for their intelligence or physical attributes is null in gestational surrogacy as the fetus is genetically unrelated. Physical and mental health of the surrogate is, however, paramount in pregnancy, and this may be a factor in selection and payment.

Currently, to contract a surrogate in the USA costs around US$15 000, whereas the same service in India costs around US$4000.23 However, salaries across the globe vary, and there are no international guidelines regarding how much a cleaner should earn, how much a dentist can charge, or how much a surrogate mother will receive for her troubles. The fact that women in India are paid less than their equivalent in the USA or Russia does not equate to exploitation, it merely illustrates the difference between nominal wage and real wage rates.23 ‘Surrogate mothers in India can earn in 9 months what might otherwise take them 15 years to accumulate’40—meaning the Indian surrogates in relative terms earn far more than their American equivalents. This does precipitate concern over financial exploitation, albeit no more than in any other commercial enterprise that involves outsourcing abroad, emphasising the need for international agreements.

Many surrogate mothers also feel that financial compensation is necessary to compensate not only themselves but also their own families who have to live through the pregnancy.41 In some patriarchal societies, this may also strengthen the position of the surrogate mother through individual empowerment and enhanced economic opportunity.18 ,28 This, however, also emphasises the need for proper psychological evaluation of the surrogate mothers to reduce the risk of surrogates entering into agreements purely for reasons of empowerment.

Financial remuneration in commercial surrogacy has additional mental health benefits for the surrogate mothers. Research has shown that payment aids emotional detachment from the growing fetus, and, together with different psychological distancing techniques, the surrogates have been shown to have an overall positive pregnancy experience.23 In general, clinical psychologists feel that surrogates need to depersonalise pregnancy to sever the biological maternal–fetal bond that forms in utero.42 The maternal–fetal detachment theory of Baslington41 proposes that gestational surrogates actively learn to suppress their maternal instinct and detach themselves emotionally as well as socially from the pregnancy by deflecting any surfacing emotions on to the commissioning couple. Teman29 discusses spatial disconnection where the surrogate women psychologically disembody the belly area to increase emotional distance. Along the same lines, the ‘perception of the surrogate's body as an appendage to the intended mother's body’ enables the commissioning couple to connect emotionally with the growing belly and negotiate the issue of identity.29

Self-help groups, particularly in the USA, encourage this learnt emotional detachment and advise the surrogate mothers to view their pregnancy as a salaried, time-limited job,41 ,42 although there is no evidence to suggest such groups are commonplace in countries such as India as yet. However, there is no denial that being a surrogate carrier is an around-the-clock job. The surrogate provides a relentless service 24 h per day, 7 days per week, for 9 months straight—a rota that, since the global abolishment of slavery, has been deemed unlawful for any other ‘profession’.14 ,18 Hence, substantial monetary remuneration has a distinct function to position commercial surrogacy in the service sector, rather than in the international market place, where the parallels of illegal and immoral baby trade can be avoided.

One can also turn the spotlight on the best interests of the commissioning couple and future child. Analysis of non-contractible—that is, non-remunerable—surrogate agreements has shown that these women are less likely to take good care of themselves and ensure that the child is born healthy.33 This observation of suboptimal care argues for enforceable contracts with ample payment, where the surrogate mother has a vested economical interest in the welfare of the unborn child.33 In addition, underinvestment through purely compensatory payment for surrogacy attracts what Banerjee and Basu33 call ‘second-best, low-quality’ surrogates, as these women have lower opportunity costs. ‘First-best, high-quality’ surrogates have higher expenses and less marginal return, not to mention higher compensatory costs in the UK, which may attract both fewer potential surrogate mothers from this higher socioeconomic group and fewer commissioning couples. Western couples travel to developing countries such as India to circumvent these problems. Here, medical care and technology is sophisticated enough to ensure high success rates, but the costs are lower because of an overall lower annual income, expenses and fees. Permitting and regulating commercial surrogacy are the first necessary steps in the battle against unwarranted or exploitative reproductive tourism. There is, furthermore, the necessity to reconcile the different legislation across countries involved in cross-border surrogacy, which opens up potential for exploitation and eliminates any favoured legal safety in surrogacy agreements.

Safety first: international law and a proposed Hague Convention

As it stands today, the legal situation on surrogacy is, to say the least, complicated. Legislation on surrogacy outside other forms of artificial reproductive technique is a relatively new phenomenon and not yet universal. Those countries that have made a stand for or against the different forms of surrogacy have done so individually on different grounds and with varied outcomes, with examples to follow. This has created an untenable situation in inter-country surrogacy agreements where neither the commissioning couple nor the gestational surrogate receives firm guarantees or legal safeguards, instead facing a clash of national legislations, taboo around payments, threats of exploitation, as well as court proceedings and parental-right conflicts after birth.3 ,4 ,43–46

In 1985, the UK became the first country to officially control surrogacy with the Surrogacy Arrangements Act 1985—hastily legislated in response to a few highly debated cases that had generated fierce public criticism—for example, the landmark baby Cotton case 1985, in which Kim Cotton was the first woman to receive payment of GBP 6500 to act as surrogate for an American couple.10 ,47 ,48 The Roche case in 1997, in which Karen Roche declined to surrender the child she had carried for a Dutch couple before trying to offer the child to a higher-bidding couple, prompted the review of surrogacy law by Brazier et al in 199849 and highlighted the importance of legislation to prevent dispute and harm to children born of surrogacy arrangements. Both the Human Fertilisation and Embryology Act 1990 and the amended legislation in 2008 permit gestational surrogacy, but ban any monetary compensation above ‘reasonable expenses’—for instance, to cover medical, travel and pregnancy-related costs and loss of income.26 Tighter regulation and third-party mediation would help to avoid exploitation of the law in this regard. Similar prohibition of commercial surrogacy is widespread in West Europe, as well as in Mexico and China, where surrogacy is deemed a criminal offence.9 ,50

In the USA, 11 out of 50 states have statutory laws recognising surrogacy contracts,9 and, in most states, the gestational mother is considered the legal mother, as in the UK.29 The American College of Obstetrics and Gynaecology also points out that ‘the primary element of motherhood, that is, ‘love’, must be considered of equal weight to ‘blood’ or genetic contribution when assigning parental rights’.9 Therefore, despite a wide acceptance of commercial surrogacy in the USA, the contracts are ultimately non-enforceable, which has led to many courtroom disputes.51–54

On the other end of the legislative spectrum stands India, where guidelines on codes of practice in commercial surrogacy have been in place since 2005.55 Since the baby Manji case of 2008,56 ,57 tighter regulations have come into force, with the Indian government recommending legally enforceable contracts in which the commissioning couple are registered as parents on the birth certificate no matter the genetic status, as do Ukraine and Russia, its European counterparts.58 ,59 However, things are changing, and a current draft bill in India, the Assisted Reproductive Technology (Regulation) Bill 2010,59 would tighten existing legislation and states that surrogates should be entitled to monetary remuneration and that commissioning parents must prove that the destination country permits surrogacy and will accept the child as a citizen.

Restrictive and paternalistic legislation in Western countries forces couples to go abroad to countries such as India in order to bypass local limitations, such as legal red-tape, ill-defined laws and cost.23 As discussed above, further problems arise when the legislations of the departure and destination country conflict. Confusion arises as to which country, or parents, the child belongs,3 ,47 making citizenship controversial and parenthood artificial. UK courts have taken steps to ensure safeguarding of vulnerable children in these cases,3 but agreements between countries and tighter regulation, such as that suggested in India,59 would avoid confusion and legal interjection in such cases.

Developing countries, including some Southeast Asian states, need to review their sometimes dangerously permissive legislation and regulations in order to safeguard the integrity and health of surrogate mothers and to decrease the ‘commodification’ of the female body.5 In addition, the home countries of reproductive tourists need to liberalise their restrictive legal practices and provide sustainable alternatives that remove or at least attenuate the need for medical tourism.5

The exploitation argument of commercial surrogacy is, as discussed, based on economic and social inequality across the globe. Banning commercial surrogacy does nothing to help this problem, opening up the dangerous possibility that surrogacy would transfer to the black market, an idea suggested by Freeman,24 with unregulated touts offering cut-price deals in back streets. Neither does unregulated legislation or a laissez-faire system, which brings back the question of exploitation of the surrogate mother, help the situation. As with many other areas of trade and services, commercial surrogacy needs to be controlled by an internationally recognised regulatory framework with enforceable rules and policies in order to be ethically and economically viable.23

International regulation of commercial surrogacy is even in theory a complicated matter and would require great cooperation and economic resources to implement. Inter-country surrogacy agreements need a regulatory framework that is independent of the individual states. In order to protect all parties involved and to equalise the regulatory disparity across the globe, one idea is to introduce an international certification scheme of fertility and surrogacy clinics.5 This globally recognised accreditation would gain greater weight as part of public international law, guided by an amendment of the International Health Regulations 2005 or the World Health Organization Constitution.

A separate Convention under the Hague Conference on Private International Law (the HCCH), the World Organisation for Cross-Border Co-operation in Civil and Commercial Legal Matters, would be of utmost importance to give effect to any international guideline.60 One can model this proposed ‘Hague Convention on Inter-country Surrogacy Agreements’ on the existing Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption 1993 (Hague Conference on Private International Law).61 This would ensure that the contracting states follow internationally recognised standards, with legal safeguards in the best interests of the surrogate, commissioning couple, and child. These guidelines would provide courts with guidance in cases of dispute, eventually giving couples seeking surrogacy a pool of member states from which to choose, safe in the knowledge that such transactions and their legal parenthood would be protected by international law. As the 2012 HCCH Preliminary Report on the Issues Arising from International Surrogacy Arrangements states: ‘There is a need for a multilateral instrument which would put in place structures and procedures to enable States to ensure that these obligations are being met in the context of this transnational phenomenon’.50 ,62