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Bioethics and New Developments in International Surrogacy

Outdoor shot of young pregnant woman in colorful dressSome people call it “reproductive tourism,” while others prefer the more neutral “cross-border reproductive healthcare.” Whatever it is called, surrogacy arrangements for infertile couples are now a big business in India and other countries in Asia—notably, Thailand.

For women who are unable to carry a pregnancy, commercial surrogacy is an option that enables a couple to have a child genetically related to them. The embryo is typically created with the egg of the woman and the sperm of the man, and transferred to the womb of the surrogate. Although some states in the U.S. permit commercial surrogacy, it is much cheaper in India or Thailand for the commissioning couples. The Times of India reports, “According to a 2012 study backed by the United Nations, the estimated turnover of commercial surrogacy business in the country was pegged at more than $400 million a year, with over 3,000 fertility clinics.”

Why bans came about
Feminist groups have been highly critical of commercial surrogacy in India, arguing that it “commodifies” women’s bodies. Other critics contend that the practice exploits poor women, as it is wealthier foreign couples who pay for the services of poor Indian women. Still others make the opposite argument: Indian women are paid so much more to serve as surrogates than they could make doing any other work that the money “coerces” them into becoming surrogates.

For several years, a bill that would regulate the surrogacy industry in India has languished in the Indian legislature. The latest development is a proposal by the Supreme Court of India to ban commercial surrogacy. According to the New York Times, the Department of Health Research of the Indian Ministry of Health and Family Welfare filed an affidavit with the Supreme Court that restricts surrogacy arrangements to Indian couples and bans foreigners from using surrogates in India.

One apparent trigger for the restriction banning foreign couples was an episode in which an Australian couple went home with a baby girl and left her healthy twin brother behind in India.

India is not the only country in which bans on foreign couples seeking surrogates have been enacted or proposed. According to the Guardian, “Thailand’s parliament has passed legislation banning commercial surrogacy, putting a halt on foreign couples seeking to have children through Thai surrogate mothers.” Here again, an Australian couple was involved, this one leaving their twin boy with the surrogate in Thailand after discovering that the baby had Down syndrome.

Determining what’s best for women and families
These actions by the governments of India and Thailand prompt the question whether prohibition is preferable to regulation. In both countries, banning foreign couples from paying women to carry their babies will drastically reduce the opportunity for many women to lift themselves out of poverty. Empirical evidence is required to determine whether poor Indian and Thai women who serve as surrogates are better off because of their earnings. If they are able to put food on the table for their families or provide better education for their children, government paternalism that would deny them those opportunities is unjustified. As I wrote in this space two years ago, the arguments that the surrogates are being exploited or that they are coerced by the amount of money they receive are seriously flawed.

The episodes in which Australian couples returned home without their unwanted babies are truly shameful. But it is bad public policy to enact a total prohibition based on a few unfortunate incidents.  The years-long failure of the Indian government to enact regulations that would have protected the rights of surrogates should have been remedied by appropriate legislation that would ensure enforcement.  It is much easier to enact a swift ban than to work out the details required for effective regulation, but a ban may not be what’s best. The voices of women who have served as surrogates should have been heard. Only by marshaling empirical evidence can it be determined whether the current arrangements are so harmful to the surrogates that total prohibition or a ban on permitting surrogacy for foreign couples is ethically justified.

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Ruth Macklin, Ph.D.

Ruth Macklin, Ph.D.

Dr. Macklin is distinguished university professor emerita at Albert Einstein College of Medicine. She is the 2014 recipient of The Hastings Center’s Henry Knowles Beecher Award, which is given in recognition of a lifetime contribution to ethics and the life sciences.

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