Silence on surrogacy: Why the world’s reproductive market needs regulation
Imagine the following scenario: you and your partner want a child. You’ve tried, but are unable to conceive the ‘traditional’ way.
You’ve thought about adoption, but you value having a child that is biologically related to you and you’ve decided that the adoption process is too long and too strenuous.
You turn to surrogacy.
If you live in Canada, finding a surrogate could be a problem. Under ss. 6(1), 6(2), and 6(3) of the Assisted Human Reproduction Act, it is illegal to pay a surrogate commercially, accept payment for surrogacy, or act as a ‘broker’ and arrange said services. Altruistic surrogacy is legal, but the surrogate mother must be at least 21 years old for consent to be valid, according to s. 6(5) of the Act. So, unless you know someone willing to carry your child for free, you’re out of luck.
But that’s only in Canada. Wealthy couples from countries like the United States will often pay a woman living in India (and some other eastern countries, though India has one of the largest markets) to carry their child if they are either unwilling or unable to do so themselves.
Some experts condemn this practice as ‘baby selling.’ But others say that giving women a chance to earn money in an unfriendly global economy isn’t necessarily a bad thing—what makes it questionable is exploitation.
This is why they say the current regulatory landscape needs both national and international review to resolve this ethical concern.
Christine Overall, a professor and research chair at Queen’s University specializing in feminist theory and applied ethics, says that the biggest concern for those that oppose surrogacy entirely is the idea that a human is being sold.
“Even if it isn’t the baby who is being sold, but something else, like the use of the woman’s uterus or her reproductive labour, I’m highly critical of a practice that involves transferring responsibility for and authority over an infant without any attention to the baby’s interests, needs and rights,” she says. Overall says surrogacy laws should mimic adoption laws when it comes to child protection.
“The primary right a baby has is not to be sold,” Overall says. That right is what makes slavery—and by extension, surrogacy—wrong. This is why Overall says it shouldn’t be seen as a legitimate job option for any woman, let alone those impoverished overseas.
“If commercial contract pregnancy [another term for surrogacy] is simply a job like any other, then it should be advertised at career days for high school, college, and university students,” she says, adding that “training and education should be available for it in school, and people should be open to seeing their daughters, sisters, and girlfriends do this work.”
Overall continues by stating that “anyone who recoils at these possibilities yet still believes commercial contract pregnancy is simply a job like any other has the challenge of explaining what seems to be, prima facie, a contradiction in their views.”
Though Overall’s condemnation of the practice as unethical doesn’t necessarily mean it is illegal, regulation of the practice varies. South Africa, Russia, Ukraine, and Argentina have legalized the practice in the past 30 years since reproductive technology became readily available.
Most places in the United States (such as California) allow the practice, but it’s pricey – it can cost anywhere from $50,000 to $120,000.
Canada, Australia, the United Kingdom, France, and most other countries have outlawed the practice commercially, but some allow altruistic surrogacy options.
Even so, it seems as though outlawing a commercial option within national borders isn’t a fail-safe for preventing the practice.
The issue recently made headlines after an Australian couple allegedly left one of the twins born to their Indian-hired surrogate mother in India, saying they could not afford to support both children. Australian federal police investigated based on child welfare concerns and the possibility that the child might have been trafficked.
Police found that the child was not trafficked, but there is now a growing concern for the stranded child’s citizenship status and official parentage, as well as a public outcry for a strong legal response.
International law, or rather the lack thereof, is the reason why cases like this are difficult to control—especially in India.
Couples who cannot find a willing surrogate or want to avoid strict regulations and high prices turn to markets like India, where the law on surrogacy is silent.
“India has become the international centre for reproductive tourism, boasting numerous high-quality and low-fee clinics,” Vida Panitch, a professor of bioethics and philosophy at Carleton University, writes in “Global Surrogacy: Exploitation to Empowerment,” a 2013 article published in the Journal of Global Ethics. Though India is the largest market, Panitch says brokers are also directing some couples to emerging markets in Thailand and Mexico since India has made it more difficult for gay couples to seek services.
Unlike Overall’s blanket condemnation of the practice, Panitch says the problem isn’t surrogacy itself, but rather exploitation that occurs in practice because of murky laws in places like India and Thailand.
Philosophically, she says, exploitation has two pillars: coercion and improper compensation. This reflects how poverty coerces Indian women to surrogacy, and the money they receive is not even close to comparable to what surrogates are paid in a place like California.
Using an Indian surrogate would cost about $20,000 to $30,000 for foreign couples, but because of how much doctors, brokers, and lawyers charge, the woman acting as a surrogate only makes about $3,000 to $6,000 at most, according to Panitch. In comparison, an American surrogate would make about $30,000 to $40,000 after subtracting costs of associated professionals and brokers.
“First-world couples are seeking the services of Indian women because you can get away with paying them so much less,” Panitch said in an interview. “The Indian state is actually encouraging us to do that by the types of regulations that it has—or rather doesn’t have.”
Unregulated, the market is booming. A March 2012 report from the Hague Conference on private international law in the Netherlands estimates the reproductive segment of India’s market to be worth about $400 million, with an estimated 1,000 per cent increase in the practice from 2006-2010 (based on data from five agencies specializing in international surrogacy).
In this multi-million dollar industry, India’s government needs to make a better attempt at regulation to avoid exploitation, stated Amrita Pande, a professor of Sociology at the University of Cape Town, when she spoke at a panel on surrogacy last winter at Carleton University. She lived and worked with surrogates in India for eight years, focusing on the women’s lives, experiences, and labour.
“The Indian Council of Medical Research has made some lame attempts at regulating the industry,” she said.
The Indian government passed the Assisted Reproductive Technology Bill in 2010, which established a National Advisory Board to regulate things like minimum requirements for health services in clinics, patient selection, and informed consent, but Pande said that the Bill is not enough to solve many of the ethical concerns surrounding surrogacy—mainly exploitation.
“The way transnational commercial surrogacy exists now in India—unregulated and undoubtedly skewed in favour of clients and doctors—of course it’s exploitative,” Pande said.
In her experience, contracts are not properly explained to the surrogate (who is not always literate), brokers take away a large part of the surrogate’s salary, multiple embryos are implanted, and the baby is taken away almost immediately after birth. Perhaps the most offending practice: 75 per cent of the payment is often withheld until after delivery. If there is a miscarriage, the surrogate is not paid the full amount.
“Some of the working conditions certainly seem exploitative to North American or European eyes, and many of them perhaps are,” said Kimberley Krawiec, a professor of Law at Duke University, at the same panel on surrogacy at Carleton University. Before labeling the practice as universally exploitative when payment is involved, Krawiec says that you have to take another look.
“India’s surrogates are paid significantly less than their American counterparts on an absolute scale,” she said, “but that amount might be five times the yearly wages for an average Indian family.”
“I don’t know how to determine if that is too little,” Krawiec said, adding that aside from outlining surrogate rights, creating regulations for fair pay should be a priority.
The transaction, as it is now, seems unfair, but does it have to be? Stephen Wilkinson, a bioethics professor at Lancaster University, said at the Carleton panel that the international community has power when it comes to changing the face of the industry.
“We can do something to make sure [surrogates] are fairly rewarded and treated with respect.” He continues, “We can do something about the consent issue.”
This means addressing poverty and education concerns to make sure that potential surrogate mothers can understand enough to properly give their consent and not be coerced into the field by economic desperation.
“Viewing transnational surrogacy as a national problem to be solved within borders is not enough,” said Pande. She advocated openness and transparency on three levels: payments, medical processes, and relationships forged by the surrogates themselves.
“For this international dialogue to be effective at all we have to start viewing these surrogates as workers, not as bodies, not as vessels and not as resources,” she said. That means including women who work as surrogates in the discussion.
But the problem might not be limited to the commercial surrogacy market. Wilkinson said exploitation is unfortunately a problem in most global industries.
“While it is something we’re rightly concerned about, it’s not clear that the global economy as a whole is much better than global surrogacy.”
Sarah Spitz (1L) is a News Editor with Juris Diction.
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