The Case for a Global Ban on Surrogacy

The surrogacy industry got its start based on the same principles of bodily autonomy and privacy that piloted Roe v. Wade and abortion—what the surrogate or egg donor does with her own body is her business, no one else’s. Like a barnacle, this “gestational service” attached itself to the ideology of Assisted Reproductive Technology: embryonic human life is disposable and, to the theory of economic imperialism, we should have markets in virtually everything, including “reproductive labor.”

Then, on the one side, gestation-for-hire activists sweetened these principles with maudlin surrogacy accounts from celebrities like Nicole Kidman, Kim Kardashian, and Elton John. And, on the other, they’ve hawked commercial surrogacy as an ideal way for a same-sex couple to conceive a child with whom they share a partial genetic kinship. As a result, America’s “Rent-a-Womb” industry now rakes in billions of dollars from its annual 22% increase of surrogate baby births.ⁱ The global surrogacy market is expected to exceed $27.5 billion by 2025.ⁱⁱ

Here, Christian anthropology, medical facts, and contemporary surrogacy cases help to connect the dots of (1) the exploitation of the surrogate woman to (2) the abuse of the surrogate baby to (3) the moral erosion of society at large.

Background

Commercial surrogacyⁱⁱⁱ is the practice of paying one woman to gestate and deliver a baby for another individual or couple. It began in the U.S. more than 40 years ago, on the tails of the production of the first in vitro baby in England. At the time, every surrogate was involved in traditional surrogacy. She was paid^iv to gestate the baby produced from the inseminated sperm of the intending father and her egg. So, in traditional surrogacy, the surrogate is the baby’s genetic mother. Following the adverse publicity surrounding the 1986 Baby M case—surrogate Mary Beth Whitehead refused to give the baby to the biological father and his wife—the practice of traditional surrogacy waned.

But the advent of in vitro reproductive technology helped to advance another form of commercial surrogacy—gestational surrogacy.^v This arrangement pays the surrogate to gestate an IVF embryonic baby produced from the egg and sperm of intending parents (IPs) or donors. The gestational surrogate is not the genetic mother of the child.

What situations prompt people to pursue surrogacy? Infertility caused by the inability to gestate. First, in cases where a woman has an abnormal uterus, is born without a uterus, has had a hysterectomy, has suffered multiple miscarriages, or has concurrent severe heart or renal conditions exacerbated by pregnancy. Second, in the case of same-sex couples or single men who, despite the fact they cannot conceive or gestate a baby, want to “build a family.”

In an era of globalization, the market for surrogate children and women has acquired a transnational character. Many surrogacy agencies, located in both first-world and developing countries, market their surrogacy services as a component of “Reproductive Tourism.” On the one side, affluent European and foreign infertile couples, coming from states prohibiting gestational carriers, secure services in surrogacy-friendly states in the U.S. where, despite the steep price tag ($100,000+), they’re more apt to receive important legal protections.^vi On the other, modest-income Americans and IPs from countries prohibiting surrogacy look to securing cut-rate surrogate services from nations like Georgia, Ukraine, and Columbia ($25-35,000).^vii

Surrogacy harms the surrogate

The experience of surrogate Diane—a young, single mother, living on food stamps, with small children at home—showcases a surrogate’s risk of exploitation with all its physical, emotional, and moral harm.^viii Diane contracted for surrogacy twice. The first time she gave birth to twins and everything went “according to plan.” Three years later, again forced to choose between taking a job or signing another surrogacy contract so she could stay at home with her kids, Diane chose the latter. But this time everything went south. Although impregnated with multiple embryos produced from eggs and sperm of the IPs, Diane discovered early on she was gestating only one baby who was later diagnosed with Downs syndrome and was stillborn at 31 weeks. Six months later, she agreed to another surrogacy attempt with the same IPs. But this time, they had their next set of IVF embryos “tested” for chromosomal abnormalities, and only three of their embryonic babies were deemed “healthy enough for transfer” to Diane’s uterus. One baby implanted, but miscarried at eight or nine weeks.

Now, even though the IPs were out of embryos, they were not willing to give up. Diane agreed to a third cycle of IVF. The intending mother went through the egg retrieval process once again, multiple embryos were produced using her eggs and the sperm of the intending father, all were tested for chromosomal anomalies, and the two babies who “met the grade” were transferred to Diane’s uterus. At the eight-week ultrasound, there was only one heartbeat, and the 20-week ultrasound showed the baby boy had a mal-developed brain. Diane told the IPs she would do whatever they wanted, but regretted her words when they requested she “terminate” the pregnancy. Diane’s motherly instinct kicked in and, after telling the IPs she could not abort the baby, she began to look for another couple to adopt the child after birth.

Eventually, the IPs had a change of heart and told Diane they would take the baby. At 35 weeks, Diane began labor at the stipulated hospital. The intending mother was a no-show for the entire delivery, while the intending father, holed up in the waiting room, did concede to come in at the end to cut his baby’s umbilical cord. Diane asked to see the baby. Since that one look, she has no idea of the baby’s fate and has lost all contact with the IPs. Her response to this heart-rending chain of events? “I think about the baby every day.”

Some analysts^ix argue the tragedy of cases like Diane’s is that the surrogate “is treated as a machine whose service can be exchanged for money. . . . The contracting couple simply uses her womb and controls her life.” The terms “machine” and “control” summarize the grounds for the surrogate exploitation argument: dehumanization and coercion. The act of surrogacy reduces the woman’s personal value to a body part—a womb for rent—treating her as a mechanical incubator, all the while submitting her to the likelihood of gross emotional and moral harm. And, because she’s either lured by financial gain^x or deceived about potential risks and harms, or both, the woman is coerced into a surrogate agreement that potentially exposes her to substantive physical harm.^xi

During the screening process, for example, surrogates are often asked to undergo a hysterosonogram, or hysterosalpingogram, or both. These procedures are painful, unpleasant, and can be medically risky. The hysterosalpingogram carries a risk of bleeding; trauma to the cervix, fallopian tubes or adjacent structures; puncturing of the uterus, and allergic reactions to iodine. There’s also the risk of bacterial infection that, in rare cases, can lead to major surgery and the future inability to bear children.

After she signs the contract, the gestational surrogate undergoes a significant amount of hormone therapy in preparation for the IVF production and transfer of the embryos to her uterus. Since the embryos are implanted in the surrogate within days following the donor’s or intending mother’s ovulation, the surrogate’s cycle must be medically synchronized with that of the donor or mother. Toward that end, the surrogate is given a GnRH agonist like Lupron or Synarel. Normally these drugs are well-tolerated, but some women experience hot flashes, fatigue, headaches, irritability or nausea and risk severe allergic reactions, infection, and bleeding. Estrogen, the hormone that thickens the lining of the uterus, can be extremely painful if given intramuscularly, and could cause infection. Long-term use of estrogen in women who undergo many surrogate pregnancies or, as in Diane’s case, repeat IVF cycles, could result in hyperplasia, a risk factor for breast and uterine cancer, heart attack, stroke and serious blood clots, all potentially life-threatening conditions. The surrogate is then given the progesterone to improve her uterine lining and the chances for embryo implantation. Side effects of this hormone include bloating, irritability and breast tenderness, with more severe effects occurring in a subset of women.

Between 1999 and 2013, U.S. gestational surrogates gave birth to 18,400 babies, more than half of which were twins, triplets or higher-order pregnancies.^xii This suggests surrogates like Diane, pursuing an IVF pregnancy with the transfer of multiple embryos, would necessarily be exposed to an increased risk of hyperemesis, gestational hypertension, gestational diabetes, anemia, preterm labor, and hemorrhage. At least two American surrogates have died due to these pregnancy complications or while giving birth.^xiii In 2015, an Idaho surrogate Brooke Lee Brown, and the twins she was carrying, died of complications during pregnancy.In January of 2020, California surrogate Michelle Reaves died while giving birth. Even when she survives the pregnancy and delivery, the surrogate is at a higher risk for post-partum depression and long-term health complications.

What about emotional/spiritual harm? Together with the pathos of Diane’s case, the testimony of an American surrogate before the 2017 UN Commission on the Status of Women is instructive. Her dream of using surrogacy to accomplish the two things she loved—being pregnant and helping others—was irrevocably shattered. This mother of three confessed that, after being saddled with unpaid medical bills, subjected to maltreatment by two international couples, and unsupported by the two agencies that hired her, she was a broken woman. “I was used, lied to, and exploited. If I could take back my surrogacy journeys I would in a heartbeat, because it changed me for the worse.”^xiv This woman, representative of many surrogates, experienced the emotional trauma of being made to feel “as if [surrogacy] is her only option for work and survival,” reducing her “as a means to an end . . . to what her body can provide—to a womb to hire.”^xv She experienced the psychological harm of alienating herself from an essential part of her sense of self: her sexuality, her fertility, and the baby growing in her womb.^xvi

What many a surrogate describe as a traumatic emotional wound is the instruction that she not develop a relationship with the developing baby.^xvii Witness the steel cold language of a California contract: “The Surrogate and her Husband agree that they will neither form, nor attempt to form, a parent-child relationship with any Child the Surrogate may bear.”^xviii In short, the world created in the image of the surrogate industry is one where what should be an integral part of pregnancy—maternal-fetal bonding—is discouraged or directly forbidden. As if a mother’s consciousness of the significance of her pregnancy could be turned on or off at will. Requiring the surrogate mother to relinquish her ability to distinguish the moral difference between the goal of her reproductive labor—someone—and that of factory labor—something generates a kind of emotional suicide.

Surrogacy’s negative psychic sequelae have prompted some to classify it as reproductive slavery, reminiscent of “The Handmaid’s Tale” where fertile young women are confined as reproductive chattel. An illustrative case: thirteen Vietnamese women agreed to be surrogates, after a company called ‘Baby 101’ told them they would earn $5,000 per baby. They were transported from Vietnam to two houses in Bangkok. The agency running the operation, eventually identified as a surrogate baby breeding ring in Thailand, confiscated the women’s passports and held them under a kind of house arrest. Some women were inseminated with sperm from intending fathers, others raped. Eventually, one of the women managed to send an email to the Vietnamese embassy begging for help. The embassy tipped off the Thai authorities, and the Thai immigration officer who finally freed the women expressed his horror at what he witnessed: “This is illegal and inhuman.” The Cyprian Committee on Bioethics concurs: In commercial surrogacy, women are often reduced to “moveable property and objects of reproductive exchange . . . that may more aptly be termed ‘reproductive trafficking.’”^xix

The financial compensation of traditional and gestational surrogacy leaves the women subject to exploitation; it manipulates their minds and wills, divesting them of a consent that is truly informed.^xx The act of surrogacy, redolent of a neo-colonialist consumerism, outsources the risks of pregnancy from wealthier intending mothers to women in some kind of financial need, often from third-world countries. It is simply immoral to place a young mother with children of her own into circumstances where she’s considered an appropriate subject of contract and reproductive labor, where she’s burdened with inhumane risks that could take her life and that of the surrogate baby.^xxi

What about legal harm? From the perspective of law, the term surrogate is a misnomer. It suggests the surrogate is a stand-in for the real mother. But a traditional principle in Roman and civil law—mater semper certa est (it is always certain who the mother is)—teaches otherwise. The surrogate is the real mother of the baby she gestates and delivers. Recently, several countries, including the U.S., have annulled the mater principle^xxii by legalizing preauthorization of surrogacy agreements (PASA) that recognize the IPs as the legal parents upon the birth of the child. These pacts don’t just deny the surrogate mother her rights; they also assault her dignity as a rationally intelligent, free human being.^xxiii They relegate her to a subclass of persons whose body is used to fulfill the “medical need” of others.^xxiv

Though most surrogates agree to gestate someone else’s baby for financial gain, their respective agents instruct them to feign altruism. Perhaps intentionally, this advice robs surrogates of the power to negotiate a fair contract. The contracts themselves notoriously deprive the woman of freedoms relating to movement, entertainment, diet and exercise all the way up to how many consecutive IVF cycles she undergoes, how many embryos she gestates, and whether she is free to reject any IPs’ decisions for fetal reduction or abortion.

Given a contract’s complete control over the surrogate and her life, Thomas A. Shannon contends “reproductive prostitution” is the best way to characterize the inherent evil of surrogacy:

[T]he woman sells or rents her body or body parts, the relation is impersonal, she is to do what she is told, her value or usefulness comes from her function, she is to leave when she is told, and if there is a pimp [surrogacy agency, physician, attorney], he gets a share of money. . . . The surrogate—picked on the basis of her health and fertility—is paid to provide her body for a period of time, and then she is to disappear.”^xxv

Surrogacy harms the baby

Every surrogacy agency founds its existence on the claim that adults have a right to a baby. Couples who hire an agency believe the same. Donum Vitae, the 1987 Instruction from the Congregation for the Doctrine of the Faith, exposes the anti-personal error of asserting a right to a baby:

On the part of the spouses, the desire for a child is natural; it expresses the vocation to fatherhood and motherhood inscribed in conjugal love. This desire can be even stronger if the couple is affected by sterility which appears incurable. Nevertheless, marriage does not confer upon the spouses the right to have a child, but only the right to perform those natural acts which are per se ordered to procreation. A true and proper right to a child would be contrary to the child’s dignity and nature. The child is not an object to which one has a right, nor can be considered as an object of ownership; rather, a child is a gift, “the supreme gift” and the most gratuitous gift of marriage, and is a living testimony of the mutual giving of his parents. For this reason, the child has the right, as already mentioned, to be the fruit of the specific act of the conjugal love of his parents; and he also has the right to be respected as a person from the moment of his conception.^xxvi

Contract decisions pose potential threats to the physical health and life of the surrogate baby. Given the high rate of twin and triplet pregnancies with IVF, gestational surrogacy contracts typically stipulate whether, when, and by whom (1) fetal reduction—killing one of the twin or two of the triplet babies; (2) pregnancy termination (abortion), and (3) risky intra-pregnancy testing including chorionic villus sampling and amniocentesis—are ordered. Contracts also specify whether IPs want preimplantation genetic diagnosis or gender selection as a means to “eliminate” genetically abnormal human embryos or those of the wrong gender. A woman who describes herself as “a product of surrogacy” bemoans the way this third-party conception industry is all about honoring what the IPs want, while sorely neglecting the right to life and needs of the surrogate child. Just like IVF, surrogacy turns children into products to be purchased, designed, and selected or destroyed, all for the sake of lining the pockets of the industry’s brokers.

Frequently, people defend the practice of surrogacy by likening it to adoption. But the analogy fails because of the morally decisive differences between the two. Adoptive parents want to mitigate their adopted child’s tragic situation—parental death, abandonment, neglect, abuse, or being unwanted. Surrogate parents intentionally cause the trauma of abandonment, severance of the gestational link, and sometimes denial of important health and genetic information. Unlike surrogate babies, adopted children have not been intentionally created to satisfy the parents’ distorted desires for a child.^xxvii Unlike surrogate parents, adopted parents do not use money to persuade the woman who gestates to abandon the child in order to give it to them.^xxviii The fact that many adopted children want to find their biological parents proves the immorality of producing children whose gestational link and, sometimes, genetic link are deliberately severed. When surrogate adolescents begin to date, they have the right to identify other offspring of their egg or sperm donor—their half-siblings—to avoid consanguineous marriages.

An Indiana case demonstrates how the legal and moral complexity of interstate commercial surrogacy often presages serious harm for the surrogate baby. The situation involved Indiana twins, a South Carolina surrogate and an eccentric IP: (1) a South Carolina surrogate was requisitioned by a New Jersey man; (2) the source of the sperm and egg were misrepresented; (3) the contract was brokered by an Indiana attorney; and (4) the adoption was facilitated by misleading information in a court with questionable jurisdiction. The judge ended the trial with this query: “Could the events in this case, which evaded state adoption processes, constitute human trafficking and violate felony child-selling laws?”^xxix According to respected surrogacy analysts, the answer is an unequivocal ‘yes!’

The Permanent Bureau of the Hague Conference listed the question of citizenship for children born within international surrogacy arrangements a “pressing problem.” One of the most egregious examples of this ‘problem’ surfaced during the Covid-19 pandemic with its international travel restrictions:

[H]undreds of babies [born of international surrogates] were stranded worldwide. Born to surrogates living in one country, and commissioned by individuals or couples living in another, these babies were cared for by paid caretakers until the intending parents could be allowed to travel to claim them. Many of these babies lived in makeshift orphanages raised by strangers, rather than with the women who carried them for nine months in the womb, because the vast majority of surrogacy contracts forbid that any amount of caretaking be done by the birth mother, lest an emotional attachment develop between the woman and the child.^xxx

What a tragic irony that, in these cases of surrogate “parenting,” the babies were deprived of their most basic human need, the maternal-baby bond, at a most critical time of their lives. As another judge predicted, based on the desolate results of surrogacy situations like these, the child could be left “marooned, stateless and parentless.”^xxxi

Surrogacy harms society

A contract-based surrogacy industry harms society by aiding and abetting the exploitation of women and children, by poisoning the free market environment, and by fostering greed at the expense of surrogacy stakeholders. Abusive practices occur even in ostensibly well-regulated commercial surrogacy jurisdictions. According to a 2018 U.N. report, two prominent surrogacy attorneys were criminally convicted in a baby-selling ring in California, an epicenter for international surrogacy arrangements. One of these attorneys admitted that “she and her conspirators used gestational carriers to create an inventory of unborn babies that they would sell for over $100,000 each.” The convicted attorney told the local media that, as for abusive practices, what she did represented the “tip of the iceberg” of a “corrupt billion-dollar industry”.^xxxii

The surrogacy industrial complex—wittingly or unwittingly—is helping to subvert some of our foundational cultural convictions regarding procreation, marriage, and parenthood. The following beliefs must be shielded from the malfeasance of surrogacy since they anchor our society in right reason:

(1) it’s morally repulsive to attach a fee for the gestation of a baby;

(2) the woman who gestates and gives birth to a baby is the legal mother;

(3) a child is the gift of a marriage, not a product to be designed, sold and destroyed;

(4) no child should have multiple mothers or be deprived of a mother altogether;

(5) no child should have two fathers, one of whom is anonymous and absent;

(6) a woman—created by God’s unconditional love, equal in dignity to every man, possessing an embodied, intelligent and free nature—should never be objectified, coerced, or reduced to her body parts; and

(7) every child has the right to be conceived, gestated, born into, and raised within a heterosexual marriage by parents who love him.

Conclusion

The lack of organized opposition to surrogacy, especially on the part of feminists and pro-lifers, is simply unacceptable. Feminist organizations should be challenging global surrogacy for its blatant reproductive trafficking and reckless disregard for women’s rights and dignity. Pro-life groups should be doing the same based on surrogacy’s unabashed attack on unborn life and the institutions of marriage and the family. Persons of good will should recognize that no regulation, no rule of law, no crafted contract can reorder surrogate reproduction to effectively defend women and children and the familial foundations of society. Only a global ban of surrogacy will accomplish that.^xxxiii

Endnotes: