Surrogacy Needs to Be Regulated, Not Prohibited
As a physician, I write a lot about the medical aspects of surrogacy. However, surrogacy journeys are only possible because of a team of different professionals working together.
In this BabyMoon Family article, I will review a recent publication in the British Medical Journal (BMJ) by a group of lawyers from the United States, United Kingdom, and India, who share their perspective on how regulation - but not overtly restrictive laws - around surrogacy are the key to promoting ethical journeys around the globe (1).
While surrogacy is growing in popularity, especially among queer intended parents (IPs), there is also a burgeoning anti-surrogacy movement.
In March 2023, 100 lawyers, physicians, and psychologists signed the Declaration of Casablanca, with the sole purpose of demanding the universal abolition of surrogacy (2).
Prime Minister Meloni’s right wing government in Italy has pushed ahead with its universal ban on international surrogacy. I have previously written about how this Italian government has already tried to erase existing rainbow families and now is preventing the formation of others with this draconian new legislation (https://www.babymoonfamily.com/original-articles/italy-attacks-surrogacy-rainbow-families).
However, this group of lawyers argues that total or near total restriction of surrogacy in a country leads to only one thing: IPs traveling to other, less regulated, less ethical destinations to pursue their dreams of becoming parents.
Evidence-Based Argumentation
I really appreciate that the authors leveraged scientific literature for their evidence-based background on surrogacy. They mention scientific publications that disprove two claims often made by the anti-surrogacy camp:
The women who become gestational carriers (GCs) are negatively affected by surrogacy.
There are negative repercussions on the children born via surrogacy.
In terms of the impact on women who become GCs, studies show that almost all previous surrogates had an overwhelmingly positive experience, and up to 95% of GCs in the U.S. and U.K. are still in contact with their IPs and children.
I have previously written about a study evaluating the emotional and psychological health of children born via surrogacy to queer parents, and this study showed that these children are often better adjusted than children of straight parents (https://www.babymoonfamily.com/original-articles/gay-fathers-better-than-straight-parents). This study and others were also referenced by the authors to support the fact that there are no negative outcomes for children born via surrogacy, especially to queer parents.
I also respect that the authors didn’t just focus on the positive and acknowledged that there have been extremely negative experiences associated with surrogacy journeys. I have previously written about the horrible exploitation of women in a Greek clinic (https://www.babymoonfamily.com/original-articles/greece-surrogacy-crisis), and I believe it is critical to have a balanced perspective on the global surrogacy landscape in order to formulate a regulatory framework that will actually work for IPs and GCs.
Restrictions Can Lead to Worsening Exploitation
The main argument made by the authors is around the balance between regulation and suffocating restrictions.
India previously had issues with international surrogacy exploitation, leading to the development of the Surrogacy Regulation Act of 2021. This act came from a good place in terms of trying to prevent coercion or exploitation of women, but its true effect has been quite different. The law now allows surrogacy in India to proceed only when the following criteria are met:
IPs are Indian and a heterosexual married couple (no single or international IPs).
Surrogates cannot be compensated.
Surrogates can only be a surrogate once.
Surrogates have to be married and have had at least one child.
Surrogates cannot also donate eggs (i.e. traditional surrogacy)
Surrogates must be genetically related to one of the IPs.
This regulation is so strict that it makes it nearly impossible to pursue surrogacy in India, even if you are a straight, married, Indian couple. So, the authors state that many Indians are now looking abroad for surrogacy journeys.
This same trend has been seen in the U.K, where altruistic surrogacy is permitted and even less strict than in India. However, it is still so challenging to pursue surrogacy in the U.K. that between 2016 and 2023, the majority of British IPs conducted surrogacy journeys outside the country.
And where do these IPs go? It would be great if they all went to the U.S., but as I have written before, the U.S. is the most expensive country for surrogacy in the world, so the price is not possible for all or even most IPs (https://www.babymoonfamily.com/original-articles/ivf-and-surrogacy-abroad).
These IPs often go to countries where surrogacy is less regulated, such as Mexico, Argentina, and Colombia. As I have written about before, Argentina is now considering banning international surrogacy given the unethical practices that have transpired recently in the country (https://www.babymoonfamily.com/original-articles/argentina-surrogacy-ban).
The trend of wealthy countries restricting surrogacy and forcing IPs to go to less regulated and poorer nations is the spiral that the authors - and myself - want to stop. Otherwise, the result is going to be a continuous banning of surrogacy in one place after another, forcing IPs to seek out ‘underground’ or less ethical practices if they cannot afford a journey in the U.S.
What is the Solution?
The authors look to the U.S. - and New York State in particular - as a beacon for well-balanced regulations.
Similar to what I have previously written about with regard to ethical surrogacy journeys abroad (https://www.babymoonfamily.com/original-articles/ethical-surrogacy-abroad), the authors describe the ethical framework of components that should be included for all surrogacy journeys:
Strict medical and psychological screening for GCs.
Independent legal representation for all parties.
Financial and background checks on the GC and her family to prevent monetary coercion.
Social support before, during, and after the pregnancy for the GC.
Records for the children to find and reach out to their GC and gamete donors in the future, if they wish.
Another aspect to the authors’ argumentation that I agree with is the fact that compensation is not the absolute root cause of coercion and exploitation in surrogacy.
In fact, everyone else involved from the medical, legal, and psychological personnel are compensated in a surrogacy journey. Why shouldn’t the woman who is carrying the child?
Every form of surrogacy is altruistic. GCs are doing this to help people become parents. It is the epitome of altruism. The only difference with a compensated arrangement is that she is adequately paid for her time and effort, just like everyone else involved in the process.
The authors confirm that the surrogacy solution is close monitoring and regulations that promote health, safety, consent, understanding, communication, and fair compensation. With this framework, surrogacy can be enjoyed by all involved, and there is virtually no risk of coercion or exploitation and less risk of driving IPs abroad to less regulated countries.
My Own Perspective
While I wholeheartedly agree with the authors’ perspectives on regulation, I do find it hard to hold up the U.S. as the benchmark for surrogacy. As an international IP, my husband and I can only afford a journey in the U.S. as we are using savings from when we worked in the U.S. Salaries in Europe and other places in the world make surrogacy out of reach for the majority of international IPs.
However, I do hope this perspective and these guidelines can be adopted by countries where surrogacy is more affordable and growing, but there are not yet the universally high medical, legal, and ethical standards that are found in the U.S. Countries in Central and South America are likely to be the best placed to accomplish this. Therefore, it would be ideal if Mexico, Colombia, and other countries with growing international surrogacy arrangements work to regulate the process now, so they don’t end up like Thailand, India, and so many other countries that ended up banning it later.
Surrogacy is a delicate process that has to be protected, along with all the parties involved in it. Also, it is a process that is growing and will continue to be done by IPs all over the world. Forcing them to go to places without the proper guidelines, laws, and protections will only hurt them, the GCs, and potentially the children as well. Lastly, expecting all IPs to do a surrogacy journey in the U.S. is not realistic, so solutions have to be made in other countries around the world.
If you would like a PDF of the full journal article, please feel free to email me at bryan@babymoonfamily.com.
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