Surrogacy refers to the process where a woman carries and delivers a baby for another couple or parent. Surrogacy is often seen as a viable option for couples and aspiring parents who want to have children but face fertility challenges. It is also an opportunity for LGBTQ+ couples to enter parenthood. When discussing surrogacy, terms such as commercial surrogacy and altruistic surrogacy are brought up. The former refers to when the surrogate is compensated for her services beyond reimbursements of medical expenses, whereas the latter is a type of surrogacy where the surrogate is not compensated except for reimbursements related to the pregnancy and birth.
Among the few countries where commercial or altruistic surrogacy is permitted, the United States, along with Georgia, Ukraine, and Colombia, have become popular spots for intended parents (IP) to undergo the process. For example, according to the Centers for Disease Control and Prevention, gestation carrier cycles resulted in 13,380 deliveries and 18,400 births between the years 1999 and 2013. Acknowledging that surrogacy is not federally regulated in the United States, it is important to note that only a few states permit surrogacy for all parents regardless of marital and residency status. Noting this, what creates this divide in decision making when it comes to surrogacy? What are the ethical and health concerns that contribute to making surrogacy a procedure that can be considered safe and beneficial to all parties involved?
The most common type of surrogacy is gestational surrogacy. Gestational surrogacy is when the surrogate is not biologically related to the child because the embryo is created by using the sperm from a sperm donor and the egg of an egg donor. On the other hand, in traditional surrogacy, the baby is biologically linked to the mother because the sperm from the sperm donor fertilizes the surrogate’s egg. Although both types of surrogacy exist, gestational surrogacy has been the most widespread surrogacy method for the last 30 years because traditional surrogacy poses a higher emotional and legal risk than the former.
One of the biggest concerns for surrogacy are property rights and the exploitation of women. Since the beginning of the commercial surrogacy industry, there have been reports of legal complications, exploitation, and abuse such as the Baby M case in the 1980s, in which the surrogate had a change of heart in handing the baby over to the intended parents, or the Beasley case in 2001 where the intended parents tried to force their surrogate to have an abortion on an unwilling surrogate. Furthermore, there have been cases where a surrogate passed away due to complications from the pregnancy, such as Brooke Browns in 2015. Although these are considered extreme cases, it sparked widespread conversations about regulating commercial surrogacy even outside the United States.
As a result of numbers of surrogacy cases gone wrong within the past few decades, countries around the world have taken firm stances. This includes stricter regulations either at a federal level or state level to either make surrogacy less complicated and safer for all parties involved, or to ban all surrogacy at a commercial and altruistic level. For example, the American Society for Reproductive Medicine (ASRM) has guidelines for screening gestational surrogates to promote professionals, clinics, and agencies to implement requirements that will make surrogacy as ethical and safe as possible for all parties involved. This may include age restrictions, complication-free prior pregnancies, financially stable family situations, no history of certain illnesses or diseases, etc. On the other hand, some say that altruistic surrogacy may not be the better option out of the two because the surrogate must undergo the same process as a compensated surrogate, but receives nothing in return for her sacrifices. Saying this, altruistic surrogacy has its own ethical concerns, and shares resemblance to issues that are prevalent in compensatory surrogacy.
By its definition, altruistic surrogates carry a child out of their own unselfish desire to help aspiring parents have children. Usually, it is an option that is chosen by surrogates for their friends and family members. One may assume that there should not be any exploitation by coercion because there is no compensation involved, but altruistic surrogacy can be considered exploitative because there is underpayment for the risks and labor that is involved during pregnancy. Since a surrogate must endure discomfort and pain in order to carry a child, one would assume that the surrogate should be compensated for their altruism and self-sacrifice. By not doing so, it could be considered morally unacceptable because it may reinforce the idea that the intended parents are more important than the surrogate herself. One suggestion that has been brought up is to leave commercial surrogacy as an option to promote autonomy and choice. However, as mentioned previously, this requires that commercial surrogacy is regulated to prevent not only extreme cases from occurring, but also to make surrogacy a safe and overall positive experience for the parties involved.
In a narrative self-written by Alex Kuzynski, she introduces her half-decade battle with carrying a baby full term by mentioning the eleven I.V.F implantation failures and four miscarriages prior to discussing gestational surrogacy. In her elaborate explanation of the process, she writes that though the commercial surrogates were not living in poverty and were required to have health insurance to prevent feelings of coerciveness and commercialism, many of the surrogates were not the most well off either. In addition to the implication that the motivation is not all altruistic, Kuzynski had many worries about the critics who may question the stability of her marriage with her husband, the potential of a failed pregnancy, and her dilemma of whether she was truly the mother to her child. In the end, Kuzynski appreciated that she shared a connection with the surrogate through the birth of her son, but it is evident that surrogacy does not only affect the surrogate mother, but also the intended parent.
Looking at surrogacy from a legal standpoint, each country has laws that vary from one jurisdiction to the next. Furthermore, the legal status of surrogacy cannot be simply categorized as legal and illegal because even in countries that do permit some sort of surrogacy, not all types of surrogacy are legalized. Countries like Germany, Spain, or France prohibit surrogacy of all kinds, but there are countries like Australia or Canada where altruistic surrogacy is allowed but commercial surrogacy is prohibited because of health and ethical concerns such as the possibility of exploiting reproductive capabilities for commercial gain. In some countries, surrogacy is either unregulated or there are no formal laws that are concerned with surrogacy such as Kenya and South Korea respectively, and in other nations, surrogacy is only permitted for domestic citizens or heterosexual couples.
In another narrative written by an anonymous surrogate, she describes her 38 week long pregnancy process for the intended parents, Nick and Jane, her brother and his wife. Throughout the weeks, she expresses not only her eagerness to deliver a healthy baby for them, especially after seeing the couple struggle with infertility complications for the past year, but also her dread during and after pregnancy due to mental and physical exhaustion, stress, and sickness. Similar to Alex Kuzynski’s story, the intended mother in this narrative also struggled with feelings of envy and lack of identity as a mother. What makes this narrative different is that the surrogate had difficulties with getting rid of her “selfish” feelings to honor her promise to not keep the baby after birth. Her heart wrenching depiction of losing a part of herself after giving birth to the twins she ultimately had to give away to the intended parents comes to show the emotional complications that may arise from surrogates who volunteer or get paid to carry a child for another. Fortunately, in her case, she believes that the bond she now has with her brother and his wife, and with the children, are now “fundamental” and “unbreakable” because of her experience as a surrogate mother. Despite the fact that the family had taken measures to prevent more emotional distress from occurring such that the anonymous surrogate was related to the intended parents, the surrogacy process was still emotionally difficult for all the parties involved.
Every experience is different, but one may say that this demonstrates that despite the hardships, or the ethical and moral complications of surrogacy, it ultimately brings an invaluable gift of a child to aspiring parents. Furthermore, acknowledging that infertility is a battle that 1 in 5 couples experience, more compassion is needed to empathize that surrogacy is usually not always the first option that intended parents choose, but it may be the last resort as well as the best option for those who’ve made many attempts at self-pregnancy but are exhausted and left with no choice.