International Surrogacy, Global Consumerism, Harms to Women and Children

This summer two separate incidents highlighted the deeply troubling problems that can arise in inter-country surrogacy arrangements. In the most extensively covered situation, the “Baby Gammy” case, an Australian couple left their infant son who has Down syndrome with his Thai surrogate mother and returned home with his twin sister. The husband was then discovered to have been convicted of multiple child sex offenses that took place between the early 1980s and early 1990s against girls as young as 5.

In the second incident, a young Japanese businessman fathered 16 children with multiple Thai surrogate mothers, only weeks or months apart, and then told Thai police that he simply wanted a large family.

The New York Times covered these stories in an article titled “Thailand’s Business in Paid Surrogates May Be Foundering in a Moral Quagmire.”

What should we make of these disturbing stories? Should we see them as revealing the ingenuity of consumers (commissioning parents and particularly fathers) in devising ways to exploit women as breeders in the unregulated global market of medically assisted reproduction? Is Baby Gammy’s story best understood as a tale of eugenics by a man convicted of abusing children (his words: "I don't think any parent wants a son with a disability")?  What does the story of the Japanese man who fathered (perhaps “sired” is the better term) all those infants share with Theresa Erickson's international baby-selling fraud, which also involved the abuse of unknowing women?  

Both stories raise policy questions about inter-country medically assisted reproduction, including the screening of intended parents, the parentage and citizenship status of children born of international commercial surrogacy, and these children’s welfare and interests in knowing their bio-social origins as a matter of identity.

Intermediaries in surrogacy agreements have certainly been ingenuous in navigating the economic opportunities and legal loopholes of the global market for their own profit. It appears from The New York Times report that Chinese women have been traveling to Thailand for impregnation, presumably to return home to carry a pregnancy and give birth to a child within a commercial surrogacy arrangement. In the wake of recent restrictions on international commercial surrogacy in India and Thailand, intermediaries operating out of other designation countries have devised schemes to transport surrogate mothers from those countries across borders to Nepal, where they are to give birth. These practices are conducive if not tantamount to trafficking in human beings. So is the cross-border movement of women who are paid to provide ("donate") eggs in response to the needs of infertile and post-fertile women and of single and gay men.

It is well-known that women who provide their bodily resources in transnational reproductive collaborations are subject to physical, emotional and social risks. Some egg providers and surrogate mothers have suffered irreversible damage to their own fertility. In India, where international commercial surrogacy has been most thoroughly studied and documented, some surrogate mothers are confined ("housed") in hostels following conception and for the duration of pregnancy, and subjected to 24/7 surveillance and control. In general, most surrogate mothers undergo Cesarean section in birthing, often without any clinical indication, for the convenience of intended parents or medical personnel. Double standards of medical care and ethics are pervasive, while emotional and social harms are neglected.

As The New York Times coverage notes, the surrogacy industries of Thailand and India are outgrowths of both countries' economic policies that promote a private market of medical tourism. Medical tourism is problematic in any event: private healthcare markets exacerbate disparities in the distribution of resources at both local and global levels. Travelling abroad for medical care is wrought with additional risks of fraud and exploitation (e.g., unproven stem cell therapies) or downright criminality (e.g., organ trafficking). These issues are compounded in the case of reproductive tourism, because at stake is the birth of a child.

Who should be held responsible for the harms to women and children involved in inter-country surrogacy arrangements? Women who work as surrogates or egg providers are certainly not to blame. Unfettered consumer desire, in the guise of a neoliberal “right to reproduce,” may be a major driver of the market. But medical entrepreneurs are at the heart of the matter.

Professional medical associations should take responsibility to prevent medical practitioners from dehumanizing women and children as commodities. Nations too should act to quell abuses perpetrated by their own nationals, both inside and outside their borders. And the international community must intervene in the unregulated global market to protect, promote and sanction the human dignity and human rights of women and children.

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Carmel Shalev, JSD, is chair of the Department for Reproduction and Society at the International Center for Health, Law and Ethics, Haifa University.