The Society for Assisted Reproductive Technology (SART) has shown that between 2004- 2008, the number of gestational surrogacy increased by 89%. The World Health Organization (WHO) reported that in 2008 more than 358,000 women died from complications related to pregnancy or childbirth. Countries like Ukraine and India are currently become hotspot for this practice. This industry is booming as it is benefitting not only the intended parents who intend to raise the child but also the surrogate mother by providing her financial gains in this process. Considering it as a bane, there are various practical as well as ethical objections to this emerging practice.
I would like to start by providing a brief idea as to what surrogacy is all about. It is an act by which a woman carries a baby for a couple who are unable to do so themselves under the assumption that she will give them the baby after birth. It defines this practice as an arrangement whereby the intending parent(s) pay the surrogate mother, directly or via an intermediary, financial remuneration, or any other form of consideration in excess of the actual out-of-pocket expenses incurred by the surrogate, such as medical fees and charges. This article will briefly examine this practice through the prism of international human rights law.
Within this context, commercial surrogacy is problematic for three reasons. First, there is a strong case that it amounts to the sale of a child under Article 35 of the Convention on the Rights of the Child (‘-CRC-’) and the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (‘-CRC Optional Protocol-’). Second, there is a reasonable argument that it is morally objectionable because it reinforces gender inequality. Finally, the regulation of such arrangements is unlikely to provide sufficient protection against the potential exploitation of surrogate mothers (at least in developing States). If any of these arguments were accepted, International Human Rights Law would require the States to prohibit it.
It may seem paradoxical to approach this issue from a feminist angle when you consider the fact that most of the key players are women. It tends to be women that strongly feel the desire for a child, women who volunteer for surrogacy and women who are often the hospital directors and healthcare workers, fuelling the provision of surrogacy services. In order to see why this is a feminist issue we must take the opportunity to reflect upon the reasons why women consider commercial surrogacy in the first place.
Quite often, the answer is poverty. Many women taking part in this type of surrogacy live in destitute situations where any opportunity to escape poverty is likely to be welcomed with open arms. Yet, although poverty affects men and women equally, only women can act as commercial surrogates. The decision they make is unlikely to be solely their own. It will be influenced by social circumstances, in-laws, husbands and maybe even their children and yet they alone will have to face the emotional and physical consequences of becoming a surrogate. In this way women are exquisitely discriminated against.
Interestingly, both critics and fans of commercial surrogacy take on the human rights shield when supporting their positions. The Universal Declaration of Human Rights (Article 16) says that ‘Men and women of full age … have the right to marry and found a family.’ Article 27 goes on to say that ‘Everyone has the right … to share in scientific advances and its benefits’. By this reasoning alone, if the technology to have a child via surrogacy is available, then women have every right to take it up. Furthermore, in many cultures where having a child is considered a great gift and a blessing, denying a couple of this right can be seen as doing them a grave disservice.
One of the questions that I am concerned about is whether these commercial surrogacy arrangements maintain gender inequality. Some consider it as a ‘contract pregnancy’ like Debra Satz and consider surrogacy as morally objectionable. It is based upon three elements. First, there is a significant control and access over a woman’s body, require submission to various tests and provide for abortion of the pregnancy where, for example, the surrogate mother has a negative amniocentesis result, or is carrying multiple foetuses. Second, it reinforces ‘negative stereotypes about women as “baby machines”’. Third, this arrangement fails to take into account women’s unique gestational contribution to a child’s creation. But, on the other side of it, some women do not regret their involvement in this practice and regulatory approach can address concern over exploitation.
One of the dilemmas that need to be addressed is, how can the nationality of a child be determined in this arrangement. Unfortunately, it provides no guidance as to how the nationality of a child is to be determined nor has the Committee on the Rights of the Child considered the issue. The main issue here is that women’s reproductive capacity should not in any way be considered as a commodity and the child rights should be protected, these rights include- prohibition against discrimination, protection against all forms of violence and abuse and the prohibition against the sale of children.
Various legal issues can arise as a result of this arrangement. There is a large variation in surrogacy laws worldwide. Some countries, such as France and Germany, have a complete ban on all forms of surrogacy. Others, such as the UK, enable altruistic surrogacy only. Although, in the UK, reasonable expenses can be paid to the surrogate, and it is common practice for the commissioning couple to take out a life insurance policy for the surrogate mother.
A more liberal approach in which both commercial and altruistic surrogacy is legal has been taken by countries including Israel and India. This inconsistency in the law globally has given rise to a number of complicated legal dilemmas that, in correlation with the increasing popularity of reproductive tourism, look set to arise more often. Laws regulating surrogacy can be complex and hard to enforce. In light of this, as well as the psychological and potential physical damage that could be caused to the surrogate, perhaps a total ban on commercial surrogacy, including altruistic surrogacy with ‘reasonable’ monetary compensation, is necessary. However, it would be naive to think that such a move would have no negative consequences. The emergence of a black market is almost inevitable. The criminalization of commercial surrogacy would leave desperate couples and potential surrogates open to exploitation by ‘underground’ surrogacy brokers.
From the perspective of international human rights law (which also reflects a particular moral framework), it is arguable that international commercial surrogacy must be prohibited on one of three potential grounds: it amounts to the sale of a child, risks the exploitation of women, especially in developing countries and maintains gender inequality. Although each of these propositions remains contentious, a prohibitionist State or one contemplating prohibition would be well within its margin of appreciation to prohibit such arrangements. According to my perception, putting a complete ban is not the solution as those who have legitimate and understandable desire to have children will be ignored. Their desire, however, does not demand tolerance of a practice that arguably maintains gender inequality and potentially violates the rights of surrogate mothers and the children to whom they give birth. Also it is considered as a viable escape from poverty for women in developing countries. I believe the key word is ‘regulation’ which should be the pragmatic and functional solution to this practice.
I have spoken to, and said they were lucky to give their children one meal a day. Often many use the funds for their children’s education, or to buy a home if they reside in a rural area. If you live in a country that cannot afford to house or feed you, then one has to do what they must to survive. We all know that life is not fair, nor do we live in a world that meets the needs of millions who live in squalor.
I would like to conclude with the words of a well-known activist, Eleanor Roosevelt:
When will our consciences grow so tender that we will act to prevent human misery rather than avenge it?
Therefore, if we completely ban this practice, it would be unlikely in the near future as it is important to prevent human misery (referring to the above quote) and by banning this practice the most viable escape for women against poverty would be deterred in the long run.
 Council for Responsible Genetics (2010) Surrogacy in America. [Online] Available at: <http://www.councilforresponsiblegenetics.org/pagedocuments/kaevej0a1m.pdf> [Accessed 22 January 2015]
 Convention on the Rights of the Child, 1989 (‘CRC’)
 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 2000 (‘CRC Optional Protocol’)
About the Author
Ashna Narain Singhani is pursuing her LL.M. (Human Rights) from National Law School of India University, Bengaluru. Her core areas of interest are Women and Child Rights under National and International Laws. Her motivation to pursue LL.M. in human rights stems from her interest in International Law, particularly regarding the need to promote human rights. She has a keen interest in Legal Research as it helps in promoting awareness amongst the masses regarding the core issues. In the rare hours when she is free, she enjoys listening to music and travelling. With this interest in mind, she is currently interning with the Model Governance Foundation.