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The End of Cross-Border Surrogacy?

LONDON – The global trade in babies born through commercial surrogacy is slowly being shut down. India, Nepal, Thailand, and Mexico have introduced measures that would limit or ban foreigners from hiring locals as surrogate mothers. Cambodia and Malaysia look likely to follow suit.

In an industry in which the conventional wisdom has long dismissed efforts to “buck the market,” this is a surprising – and welcome – development. Uncritical proponents of biotechnology tend to celebrate the fact that technological breakthroughs have outpaced government regulations, arguing that this has allowed science to progress unfettered. But the determination of countries that have historically been centers of commercial surrogacy to stop the practice underscores the naiveté of that position.

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It is no coincidence that the countries cracking down on cross-border surrogacy are those in which the practice takes place. The argument that all parties – surrogate mothers, babies, and commissioning parents – benefit from the transaction has not withstood scrutiny.

Consider India, where the surrogacy industry is valued at $400 million per year; until recently, some 3,000 fertility clinics were operating in the country. And yet, as worries have mounted that commercial surrogacy leads to human trafficking and the exploitation of women, India’s authorities have concluded that the ethical concerns outweigh the economic benefits.

India has yet to finalize its anti-surrogacy legislation. But the way the debate has evolved since the first bill was proposed in 2008 illustrates the rapid change in how the practice is viewed. The earliest drafts of the legislation actually encouraged commercial surrogacy, mandating that mothers employed as surrogates surrender their babies. Given that under common law, the woman who bears a child is legally its mother, this provision would have been radically pro-surrogacy.

Since then, however, the focus of the discussion has shifted, as unsavory – and sometimes bizarre – aspects of the trade have come to light. For example, in one case, Germany – where surrogacy is illegal – refused to accept twin children of a German father born to an Indian surrogate, while India demurred at giving the father an exit visa so that he could remove the children.

In October 2015, India’s Ministry of Health and Family Welfare, under pressure from the country’s Supreme Court, declared that international commercial surrogacy was unconstitutional. The Council for Medical Research sent out a notification to all clinics, instructing them not to “entertain” foreign couples – including non-resident Indian citizens and people of Indian origin. The next month, the Department of Health Research banned the importation of embryos to be implanted into surrogate mothers, making the procedure nearly impossible.

To be sure, India is not the only country involved in cross-border surrogacy. Indeed, Indian regulations limiting surrogacy services to heterosexual couples who have been married for at least two years had already caused some of the trade to relocate, most notably to Thailand.

But there, too, attitudes have been shifting, especially after an Australian couple refused to take responsibility for a baby born through surrogacy who was diagnosed with Down Syndrome. The couple did take the boy’s twin sister, however, making it clear that what they had paid for was not the “service” provided by the mother, but the children themselves – or rather, just the one who met their requirements. As a result, it has become harder to deny that cross-border surrogacy is akin to selling babies.

In August 2015, Thailand restricted surrogacy to couples in which at least one partner holds Thai nationality. Offenses under the law are punishable by up to ten years in prison – for the surrogate and commissioning parents alike. As in India, surrogacy touched a deep nerve in Thailand, where some see it as neo-colonialist exploitation, with babies as the raw commodities being extracted for the benefit of Westerners. “This law aims to stop Thai women’s wombs from becoming the world’s womb,” was how Wanlop Tankananurak, a member of Thailand’s National Legislative Assembly, put it.

By November 2015, about a dozen Indian and Thai clinics had shifted operations to Phnom Penh. That development might at first seem to support the argument that the trade can never be stamped out – only relocated. But, so far, the number of clinics that have set up shop in Cambodia is small. And some reports indicate that Cambodia’s interior ministry intends to treat commercial surrogacy as human trafficking, with a potential prison sentence.

Nepal, too, has declared a moratorium on surrogacy, after some in the country denounced the practice as exploitative. In April 2015, after an earthquake struck Kathmandu, Israel evacuated 26 babies born through surrogacy, but left their mothers – most of whom had crossed over from India – stranded in a disaster zone.

Malaysia also seems on track to ban the practice. And in Mexico, the state of Tabasco, the only jurisdiction in the country where surrogacy is legal, has restricted it to Mexican heterosexual married couples in which the wife is infertile. During the legislative debate, Deputy Veronica Perez Rojas denounced surrogacy as a “new form of exploitation of women and trafficking.”

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There is the risk, of course, that the ongoing international clampdown will drive commercial surrogacy underground. But that risk only underscores the need for clear and strict legislation. Even if some would-be parents are willing to break the law, the vast majority will be deterred by the penalties, including the risk that they will not be allowed to keep the baby or that they will be unable to obtain an exit visa for it.

The pro-surrogacy camp emphasizes the benefits of the practice, which include increased reproductive choice and the accommodation of sexual pluralism. But while these may be genuine and important considerations, they cannot be placed above the need to prevent the exploitation of some of the world’s most vulnerable women.