The Comparative Ethics of Traditional and Gestational Surrogacy
By Dareia Hadjiemmanuil ‘27
Commercial surrogacy is a practice in which surrogate mothers receive reimbursement for purposes other than medical from intended parents. The surge in the demand for commercial surrogacy over the past two decades has led to a vast revision of the ethics of the practice since the case of Baby M in the 1980s. (1,2) Baby M was the first legal dispute in the US to bring surrogacy under political scrutiny. It concerned a custody battle between intended parents William and Elizabeth Stern, and Mary Beth Whitehead, a surrogate mother who conceived the eponymous Baby M — or Melissa Stern — by means of intrauterine insemination (IUI) technology, making Whitehead the biological mother of the child. Whitehead’s demand for custody of the child was hence complicated by their biological relation to each other, and the public at the time largely supported the view that Whitehead had parental rights over baby Melissa. (3) Ultimately, however, the ruling of the New Jersey court was that custody would be handed to the Sterns, marking the first ruling in favor of surrogacy. In the present day, with the proliferation of in vitro fertilization (IVF) technology, the world has seen a transition from traditional surrogacy, where the surrogate mother is also the biological mother, to gestational surrogacy, where the surrogate mother bears no biological relation to the child (through the planting of a fertilized donor ovum in the surrogate’s uterus).
Traditional surrogacy can be complicated by the surrogate mother’s biological relationship with the child, though this problem ostensibly vanishes given recent scientific progress. States are increasingly adopting pro-surrogacy policy in accordance with this shift, with only three states (Louisiana, Michigan, and Nebraska)(4) maintaining a strict anti-surrogacy policy to this day. The reasons behind shifting perception of traditional surrogacy is not well-documented in the literature: why is gestational surrogacy more ethically acceptable than traditional surrogacy in the US? To understand the ethical underpinnings of the surrogacy debate, it is important to reflect on the nuances of each practice and how they affect surrogate mothers.
Current legislation on surrogacy in the US is a paradoxical affair: the law simultaneously strives to improve the surrogacy process, yet often avoids direct engagement with the topic. Both forms of surrogacy fall under a legally gray area in terms of state legislation — albeit one that is generally regarded with lenience in case law.
Legislation on the rights of gestational surrogate mothers in states where surrogacy is explicitly legal and contractually enforceable typically has several fundamental stipulations. Surrogate mothers can be granted the right to select their own healthcare providers, the right to terminate their pregnancy, the right to retain or reduce the number of embryos they receive, the right to receive financial compensation (held in escrow until the birth of the child), the right to full information on the medical procedures they are to undergo, and the right to psychological support. (5) On the other hand, intended parents, according to the contract formed with the surrogate, may have the right to be involved in the surrogate’s medical decisions, in addition to attending ultrasounds and other prenatal appointments. (6) Understandably, the vague nature of these rights implicitly permits contradiction. In the case of a conflict of interest between the surrogate and the intended parents, this contradiction may be insurmountable, often at the expense of the surrogate. For instance, in a disagreement over a medical procedure with potentially adverse health effects on the surrogate, there is a lack of legislation safeguarding the surrogate from the exertion of pressure by the intended parents to make a decision against their interests. Therefore, in the current context, it can be argued that gestational surrogacy still largely suffers from an absence of clarity in legislation similar to that of traditional surrogacy, albeit to a lesser extent.
The previous example also sets forth the possibility of this legal gray area serving as breeding grounds for the economic exploitation of the surrogate, who can be financially dependent on the intended parents. Critics of commercial surrogacy have been quick to invoke the 13th Amendment in relation to this dispute: there is no doubt that the majority of women considering surrogacy do not fall into the higher income strata, given the potential risks and physical limitations associated with pregnancy. Quite contrarily, surrogacy is generally regarded as a source of income for those wishing to escape economic hardship. On the other hand, gestational surrogacy is a very costly matter for prospective intended parents of median income, with average costs rising above the six-figure mark, making it effectively only accessible to the upper classes. (7) This creates an imbalanced contractual relationship between parent and surrogate, with the surrogate often having limited employment options outside of surrogacy. Although this can be — to an extent — mitigated by the fact that many surrogacy agencies in the US have screening procedures excluding potential surrogate mothers who are on government assistance, this procedure still fails to rectify the issue for women experiencing financial hardship, which is not well-documented. When this issue is paired with the marketing of surrogacy to women in poverty as a viable means of securing income, a market for surrogacy can be created normalizing the commodification of women where the surrogate’s rights and safety are severely compromised. In this sense, gestational surrogacy faces the same issue regarding the stakeholders’ dynamic that traditional surrogacy was accused of facing in the Baby M case.
For a more positive analysis on the effects of the legalization of gestational surrogacy, one must examine what the effects of the aforementioned money and time cost of gestational surrogacy in the US has for foreign surrogacy markets. Foreign nationals whose home countries do not permit commercial surrogacy often choose to arrange for it in countries where it is legal, such as the US. (8) However, the lack of affordability of surrogacy in the US means that foreign intended parents choose to invest in other, less-regulated surrogacy markets which do little for the rights of the surrogate. The most notable example of this is Ukraine, whose surrogacy market has come under scrutiny for its deeply exploitative character. An article published in Politico earlier this year details the workings of BioTexCom, a popular surrogacy agency which continues to operate in wartime. In particular, BioTexCom has come under scrutiny for the lack of transparency of its surrogacy process, being suspected of child trafficking through the misuse of donor embryos, as well as exploiting their employee surrogate mothers, who must carry and deliver infants in the face of “air raids.” (9) Moreover, testimonies from surrogate mothers indicate the psychological burden of carrying a child to term, with one woman stating that “[she] couldn’t bear it.” (10) The problem of exploitation in the gestational surrogacy industry of less economically developed countries (LEDCs) such as India and Thailand has been well documented, (11,12) and has culminated in the official criminalization of the practice in both countries. (13) They serve prime examples of the ethical dilemma of “reproductive tourism” and exploitation from the West. (14) This crucial issue seen across systems of legalized gestational surrogacy worldwide is hardly an ethical step forward from traditional surrogacy. If anything, the absence of biological relation to the surrogate can be argued to remove certain boundaries towards the availability of surrogacy worldwide, culminating in the facilitation of the creation of black markets for surrogacy.
In sum, the principal sense in which gestational surrogacy outperforms traditional surrogacy is procedural. Because of the absence of biological relation between surrogate mother and child, acknowledgement of parental rights is facilitated. In the United States, there is no longer a need to file an Acknowledgment of Parenthood or a motion for Stepparent Adoption to acknowledge a child conceived through surrogacy as your own; the right of the surrogate mother to the child is terminated the moment the child is delivered, and no claim can be made for the surrogate mother’s visitation rights — though this may be another criticism of the surrogacy process. Despite this, the ethical issues posed by each form of surrogacy only barely differ: gestational surrogate mothers can be subject to the same exploitation and psychological trauma that traditional surrogate mothers like Mary Beth Whitehead are. (15) Additionally, both types of surrogacy are confronted with the issue of the commodification of the child, enforcing the notion of the child as a product of a business transaction, and overlooking more humane methods such as adoption or IVF using donor embryos (for heterosexual couples). It is therefore unclear why these two methods of conception should be regarded so differently in the United States.
Endnotes
(1) Scott, Elizabeth S. “Surrogacy and the Politics of Commodification.” Law and Contemporary Problems 72 (3): 109–46 (2009). https://www.jstor.org/stable/40647246?searchText=surrogacy&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dsurrogacy&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&refreqid=fastly-default%3Af90fb256b1099e736a8c9b7c201f8075.
(2) “Matter of Baby M.” n.d. Justia Law. https://law.justia.com/cases/new-jersey/supreme-court/1988/109-n-j-396-1.html.
(3) Scott, Elizabeth S. “Surrogacy and the Politics of Commodification.” Law and Contemporary Problems 72 (3): 109–46 (2009). https://www.jstor.org/stable/40647246?searchText=surrogacy&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dsurrogacy&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&refreqid=fastly-default%3Af90fb256b1099e736a8c9b7c201f8075.
(4) “Surrogacy Laws by State - Legal Professional Group.” n.d. Connect.asrm.org. https://connect.asrm.org/lpg/resources/surrogacy-by-state?ssopc=1#:~:text=Conn..
(5) “The Child-Parent Security Act: Gestational Surrogacy Agreements, Acknowledgment of Parentage and Orders of Parentage.” n.d. Www.health.ny.gov. https://www.health.ny.gov/vital_records/child_parent_security_act/.
(6) “How Are Intended Parents Protected in a Surrogacy Contract?” n.d. Klein Fertility Law. Accessed October 25, 2023. https://www.kleinfertilitylaw.com/blog/how-are-intended-parents-protected-in-a-surrogacy-contract.
(7) Kate Dore. “Here’s How One Single Father Spent a Decade Planning for His Dream Family via Surrogacy.” CNBC. July 9, 2023. https://www.cnbc.com/2023/07/09/heres-how-one-single-father-paid-for-a-baby-via-surrogacy.html.
(8) Sánchez-Vallejo, Silvia Blanco, Clara Angela Brascia, Almudena Barragán, María Antonia. “Surrogacy: Parenthood as a Global Industry.” EL PAÍS English. April 3, 2023. https://english.elpais.com/society/2023-04-03/surrogacy-parenthood-as-a-global-industry.html.
(9) Gridneff, Ilya. “Inside a Ukrainian Baby Factory.” POLITICO. July 23, 2023. https://www.politico.com/news/2023/07/23/ukraine-surrogates-fertility-00104913.
(10) Id.
(11) Desai, Kishwar. “India’s Surrogate Mothers Are Risking Their Lives. They Urgently Need Protection | Kishwar Desai.” The Guardian. June 5, 2012. https://www.theguardian.com/commentisfree/2012/jun/05/india-surrogates-impoverished-die.
(12) “Which Countries Allow Commercial Surrogacy?,” Reuters, April 5, 2023, sec. World. https://www.reuters.com/world/which-countries-allow-commercial-surrogacy-2023-04-05/.
(13) “THE SURROGACY (REGULATION) ACT, 2021 | Department of Health Research | MoHFW | Government of India.” n.d. Dhr.gov.in. https://dhr.gov.in/document/acts-circulars/surrogacy-regulation-act-2021.
(14) Munjal-Shankar, Diksha. “Medical Tourism, Surrogacy & the Legal Overtones - the Indian Tale.” Journal of the Indian Law Institute 56 (1): 62–77 (2014). https://www.jstor.org/stable/pdf/43953689.pdf?refreqid=fastly-default%3A20a18e1f6af347dddb94354eac68d8bd&ab_segments=&origin=&initiator=&acceptTC=1.
(15) Lamba, N, V Jadva, K Kadam, and S Golombok. “The Psychological Well-Being and Prenatal Bonding of Gestational Surrogates.” Human Reproduction (Oxford, England) 33 (4): 646–53 (2018). https://doi.org/10.1093/humrep/dey048.
