In 2016, the Indian government drafted the Surrogacy (Regulation) Bill that would end commercial surrogacy in the country. Early 2017, the Cambodian government followed with a similar regulation, shutting its doors to cross-border commercial surrogacy. In August 2017 the Huffington Post reported the movement of cross-border surrogacy to Ukraine and Russia after Asian countries closed their doors to it.
It is a suitable time to view cross-border surrogacy and third party reproduction as a global health and human rights issue emerging out of the demand for infertility services, using assisted reproductive technology.
This growing market can be exploitative to women in developing countries, a reality that is being addressed mostly after the infringement of human rights has happened in affected countries through national guidelines and regulations.
To bring an end to this form of reproductive tourism, it is imperative to view this as a global phenomenon of commodification of human beings and urge our policy makers and international agencies to immediately respond to calls from professionals and citizens for an International Declaration that will draw world attention to this issue. Such a move could lead to international cooperation to protect the health and human rights of vulnerable women and children, and harmonisation of regulations in this sector.
The need for an international declaration
Human rights concerns related to cross-border third party reproduction and surrogacy have arisen from the use of assisted reproductive technologies, including in-vitro fertilisation, donor gametes and embryo implantation. When it is not possible for a woman to carry a pregnancy due to uterine factors or medical reasons, a surrogate woman is impregnated with a genetically unrelated embryo and goes through pregnancy and childbirth with the intention of handing the child over to the genetic or intended parents.
If ovarian failure were the reason for infertility, an ovum (egg) donor would be required. Ovum donation is an interventional procedure that is riskier and much more complicated than sperm donation.
The demand for surrogates and ovum donors has created a market in these services especially in countries where assisted reproductive technology is unregulated. The ethical and legal difficulties with marketing human tissues and services has led most developed countries to ban commercial surrogacy contracts and sale of ovum and embryos. In these countries, only altruistic surrogacy is allowed and strictly regulated, with safety measures and compensation in place for the surrogates and ovum donors. The US is a notable exception, where the legal status of this practice differs from state to state.
This moved the market mostly to low income and developing countries that offered the dual advantage of lower medical costs, and availability of surrogates and ovum donors. To circumvent prohibitive laws in their country of residence, citizens travelled abroad for their reproductive needs, unmindful of possible harms to women in those countries due to prevailing injustices and inequalities in access to health services, education and livelihood.
To these women looking for a way out of financial stress, the payouts for surrogacy and ovum donation are very attractive, high enough for them to ignore possible risks and harms from the procedure. This kind of cross-border human exploitation, taking advantage of cost differentials and lax regulations, is an unacceptable infringement of human rights and women’s rights. As one country responds with a ban on commercial surrogacy, the market just shifts to the next unregulated destination. This has led to protests, international condemnation and repeated calls for an International Declaration against this form of cross-border exploitation of women in third-party reproduction.
Also read: Parliamentary Panel Report on Surrogacy Bill Is a Good Step, but Definitely Isn’t Perfect
Medical tourism has often been criticised, as it takes advantage of health services in countries where large sections of the population may not have access to adequate or affordable healthcare. This lack of distributive justice in a globalised health market is already a matter of ethical concern. Medical tourism for reproduction, however, is more ominous as it directly seeks the use of women’s bodies to overcome infertility or fill aspirations for a child.
The surrogate woman is the third party in this form of reproduction, who enters into a contract for service with the intended parents to carry a pregnancy and hand over the child after birth. The technological process employed is still an imperfect science with low success rates and high risk for third parties involved. Further, the arrangement is inherently disadvantageous to the surrogate who bears all the health risks is less informed and legally unprotected.
This inequality is aggravated when the surrogate belongs to a socially dependent class in a developing country. Typically, these women are from urban slums or small towns, deprived of adequate livelihoods and uneducated, susceptible to the coercion of agents who offer this lucrative opportunity to ‘earn more’ for their families. They are mostly uninsured, with limited access to health facilities in countries like India that do not provide universal healthcare. These women accept the risks to life and health in pregnancy and childbirth, in a situation of limited choices and desperate needs, where the money earned is typically used to retire family debt, or keep a child in school.
As with cross-border organ trafficking, it is unacceptable that the lives and health of vulnerable women in developing countries are placed at risk to fulfil the needs of wealthy clients from developed countries. These aspiring couples in search of third party reproduction are typically unconcerned with the possibility of exploitation of surrogates and donors, whose welfare is presumed to be the responsibility of the doctors, clinics and intermediate agencies. Infertility clinics are private enterprises, constituting a conflict of interest that can be detrimental to the surrogate.
In some cases, pregnant surrogate women are transported across borders for birth certification of the surrogate child to enable unhindered passage to the intended parent’s home country. The surrogate woman then returns to her country after receiving her fees for service. During the Nepal earthquake in 2015, Indian surrogates who had been brought to Nepal for delivery were left stranded, while the Israeli clients airlifted the surrogate babies to safety; one more shocking report of unconcern for surrogates in the story of commercial surrogacy.
The child is at risk of being viewed as a marketable product in contracts involving handover of children after birth to commissioning parents. When the child is commoditised in this manner, the possibility of child trafficking is not inconceivable, given the opacity of this unregulated sector.
Once the child is viewed as a commodity, there could be expectations of perfection, leading to a eugenic mindset and intolerance. If intended parents refuse to accept the child, abandon it or lose interest for any reason, the child would be left at the mercy of the state and child services, unwanted by both genetic and birth parents. Difficulties also arise when children cannot travel home with the parents due to disparities in citizenship laws and regulations.
Ovum or egg donors are either sourced through campus advertisements in preference of young donors, or from the same subsection of women as surrogates. Ovum donation is far more complicated than sperm donation, involving hormonal stimulation and surgical retrieval of eggs under anaesthesia. Here again, high payment becomes an incentive, and women may go through multiple cycles, uninformed of the risks involved. This is more likely in developing countries where lower levels of education and awareness prevail.
Surrogacy contracts are difficult to enforce as they govern body processes and handover of human children. Such contracts would be deemed unconscionable and invalid under most judicial systems to the detriment of all parties involved. Where such contracts are legally problematic, third parties like surrogates or ovum donors, even the child, are at risk of harm. This situation is more complex when the parties involved are citizens of different countries with different jurisdiction. Inequalities also exist in the form of power differential between third-party collaborators and commissioning parents due to a disparity in education, information, financial need and counseling.
International call to end cross-border reproduction
At the present time, very few developed countries in the world allow commercial surrogacy because of its ethical and legal implications and risks of harm. The benefits of assisted reproductive technologies are not in question here; only the social concerns related to exploitation in commercial surrogacy and ovum donation.
Resource-strapped Asian countries struggling with other pressing challenges in health were slower to respond to this cross-border phenomenon, but successive countries have now slammed the door on commercial surrogacy. Undaunted by this, clients simply move to the next frontier, insensitive to ethical concerns of exploitation of women and commodification of children. For ten years, international and professional organisations have called for an end to cross-border third-party reproduction tourism, standing up for the human rights of every woman and every human child, irrespective of country, capacity and need.
Cross-border commercial surrogacy is a human rights problem that needs to be addressed through international cooperation. A just world cannot be blind to the possibility of exploitation, trafficking and victimisation in this sector. The International Federation of Gynecology and Obstetrics (FIGO) and the European Society of Human Reproduction and Embryology (ESHRE) have issued guidelines in 2008 that specifically denounce commercial arrangements in surrogacy. Despite the publications of guidelines almost a decade ago, commercial surrogacy continued unabated.
The Declaration of Istanbul on Organ Trafficking and Transplant tourism 2008 was a culmination of efforts of transplantation and nephrology societies to address unethical practices and cross-border commerce in organs, which was also endorsed by the World Health Organization (WHO), an agency of the UN. Signatories to the Declaration agreed to collaborate to criminalise cross-border sale of human organs.
Along these lines, there is an urgent need for an International Declaration by the WHO to end cross-border third party reproduction in commercial surrogacy. The UN has shown the way with its Declaration of the Rights of Women, the Beijing Declaration, Universal Declaration of Human Rights and Convention on the Elimination of all forms of Discrimination against Women.
The ASEAN Declaration Against Trafficking in Persons Particularly Women and Children 2004 is a sterling document that draws attention on the need for a regional approach to protect women from trafficking in the spirit of the UN Convention against Transnational Organized Crime. The UNESCO Chair in Bioethics has resolved to develop a human rights convention for International Medical Assisted Reproduction (IMAR) addressing global injustices involving medical assisted reproduction.
It is a matter of global injustice that women and children of one country can be exploited and commoditised by citizens of another country in pursuit of parenthood. An international declaration by an agency such as WHO will send the right message against exploitation of women in low-income countries, demanding appropriate legislation in this area. It would ensure that reproductive services are not commercialised; also that altruistic surrogates and donors are from the same country and jurisdiction as the intended parents, protected by appropriate legislation, healthcare, insurance and information.
The vision for such a declaration is a world where human goals in health and reproduction are pursued in a spirit on mutual respect, compassion and dignity of all people irrespective of country, race or affiliation; a vision of peace that overcomes the barriers of an unequal world, towards the well-being of all.
Olinda Timms is affiliated with the Division of Health and Humanities, St Johns Research Institute, Bangalore, India.