This essay was submitted to Open Philanthropy's Cause Exploration Prizes contest.
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Note: In this essay I draw heavily on knowledge I gained from an intensive year-long research project on the human rights implications of transnational surrogacy that I participated in during law school. Accordingly, while I believe I have developed some expertise on the subject and am relatively confident about the benefits of surrogacy for low-income women in developing countries, I am less confident about the potential benefits of legalizing transnational surrogacy as compared to other possible interventions.
Gestational surrogacy is the process through which one person – a “surrogate” – agrees to be impregnated with an embryo through in vitro fertilization (“IVF”) in order to carry and birth a child for another individual or couple (the “intended parents”). The intended parents are often people who cannot carry their own child, either for medical reasons or in the case of gay male couples. Surrogacy is controversial, and many countries have banned or restricted it while a few have created laws to protect and enforce surrogacy arrangements. Still others have passed no laws, which can create legal uncertainty surrounding the enforceability of a surrogacy contract, the rights of the surrogate and the intended parents, and the parentage and citizenship rights of the child. Surrogacy has been banned throughout much of Europe. While it can be safely and legally practiced in parts of the United States, the cost can be well over $100,000. Accordingly, many intended parents have looked to lower-income countries in Eastern Europe, Central and South America, Asia, and Africa for more affordable surrogacy options. For a while, India was a major surrogacy center, offering a complete surrogacy process for less than $25,000.[1] However, India banned commercial surrogacy in 2015. Afterward, it was briefly popular in Nepal, Cambodia, and Thailand, but each of those countries banned the practice soon after. Now, the practice appears to be moving to African countries such as Kenya, Nigeria, and Ghana, which have thus far left surrogacy unregulated. A brief survey of surrogacy cost estimates online suggests that surrogacy companies are not yet recommending these countries, but rather are currently recommending surrogacy in countries including the United States, Ukraine, Georgia, Canada, Mexico, Colombia, and Greece, for prices ranging from $30,000 to $200,000, though for gay couples the cheapest option appears to over $60,000, as cheaper countries such as Ukraine and Georgia offer surrogacy to heterosexual couples only.[2]
Accordingly, if surrogacy emerges as an established industry in the developing world, it could make surrogacy available as an economic opportunity to millions of women while drastically lowering the price of surrogacy for intended parents and thereby providing a financially feasible way for millions of individuals and couples to have children.
Extraordinary Economic Opportunity for Surrogate Women
When surrogacy is available to impoverished women living in low-income countries, it can be a life-changing economic opportunity. To provide two examples, consider India and Cambodia. Ethnographer Amrita Pande closely studied the surrogacy industry in India, both before and after the ban, using a particular clinic as a case study. She observed that with a single pregnancy, an Indian surrogate could earn almost five years of the median income for an entire family.[3] Most women, she found, were poor and engaged in surrogacy out of financial desperation.[4] She met several women who used the money to buy or build houses, and numerous women who were repeat surrogates.[5] Similarly, when surrogacy was practiced in Cambodia before it was banned, a woman could earn about $10,000 through a pregnancy, more than six times the average annual salary.[6] I traveled to Cambodia to study surrogacy in 2019, and learned that most surrogates had been garment factory workers who worked long hours for less than $200 per month and whose families were burdened with crippling debt that they had little hope of paying off, and that could be passed on to future generations.[7] A single surrogacy pregnancy could lift a family out of debt entirely. Although the idea of legalizing surrogacy was very unpopular at the time of my trip, every person I spoke to – academics, nonprofit workers, and government officials, among others – agreed that Cambodian women who were fully informed of the risks would widely choose to become surrogates if given and made aware of the opportunity, because the economic benefits would be so attractive even if the industry were unregulated and likely to neglect their rights. A regulated industry required to meet certain minimum standards to protect the autonomy, health and welfare of surrogates would be even more attractive.
India’s surrogacy market was estimated to be worth over $3 billion and involved over 3,000 surrogacy clinics.[8] The current global market is expected to grow by almost a third in the next five years.[9] Accordingly, the scale of the economic opportunity that could potentially be opened up to impoverished women and their communities is huge.
Spillover Benefits to Surrogates’ Communities and Countries
The essence of this proposal is that legalizing surrogacy in developing countries would open the doors to a large flow of money from wealthy individuals to poor ones, to everyone’s benefit. Beyond the impact on individuals, this would amount to a flow of money into poor communities and countries. This influx of capital would stimulate local economies and have spillover effects that would benefit those communities and the countries as a whole.
Enabling People To Create Families & Promoting LGTBQ Rights
Further, encouraging legalized international surrogacy, particular in very low-income countries, would make it affordable for millions of individuals and couples to have children who would otherwise be unable to do so. This would be a victory for LGBTQ+ rights, as it would enable gay men, as well as other couples where neither partner is able to carry a child, to have children. While some of these people may be able to have children through adoption, adoption can be very difficult and some people feel a strong desire to have children biologically related to them.
A Pivotal Moment to Influence Development of International Surrogacy Industry
The importance of this issue may be especially large now, when the industry is rapidly responding to emerging surrogacy restrictions, and countries are deciding how to respond in turn. A well-timed intervention that helps a country establish a safe but affordable surrogacy market could set an example for the rest of the world to follow. A campaign that promotes the narrative of surrogacy as a beneficial way for women to exercise their reproductive and economic autonomy could determine whether the practice is widely accepted or widely rejected.
On the other hand, if unregulated surrogacy industries create the image of surrogacy as an exploitative and dangerous practice, it may end up being widely banned for the indefinite future, depriving millions of would-be surrogates and millions of would-be parents of the benefits. This appears to be the direction the surrogacy industry is taking, with most countries that choose to address surrogacy severely restricting it rather than establishing a regulatory framework that would protect women’s and children’s rights while still allowing the industry to thrive.
Preventing Growth of Dangerous, Illicit Surrogacy Industry
Finally, promoting a regulated surrogacy industry could protect women, children, and parents by offering a safe alternative to black market surrogacy, where surrogacy is simply practiced illegally, and “gray market” surrogacy, where elaborate measures are taken to dodge restrictive surrogacy laws, such as by recruiting surrogate women in one country to be impregnated in another.[10] While a legal market can be regulated to promote informed consent, adequate health care for surrogates, background checks for intended parents, and other rights-protective measures, an illicit market or a market built around evading regulation would leave all parties vulnerable to exploitation. And women are far safer acting as surrogates in their own communities than traveling to other, unfamiliar countries where they may be entirely dependent on surrogacy companies for their health and safety. .
Various commentators including academics, journalists, and intergovernmental organizations have raised the concern that an outright ban on surrogacy would only harm the women they aim to protect by depriving them of economic opportunity.[11] Other groups have raised concerns about the risks created by surrogacy bans that push the industry underground, or to increasingly risky locations.[12] Further, many have criticized the idea that surrogacy be limited to “altruistic,” meaning uncompensated, surrogacy, as this merely devalues the labor of the women in the name of protecting them from “commodification.”[13] Accordingly, the view that surrogacy should be available as an economic opportunity is not, in itself, a neglected idea.
However, the attention appears to be largely passive. I have not seen any activists or policy groups, or any other organizations, making any concerted effort to actually influence policy and promote the legalization of surrogacy for the women who stand to benefit most from it. Open Philanthropy could fill that gap by funding a policy campaign promoting legalization of surrogacy paired with regulations that would facilitate a safe industry protective of the rights of women and children. While commentators have suggested that such a legal framework would be best, none seem to have actually pushed to create that framework or made concrete legislative proposals.
At the same time, some of the attention given to surrogacy takes the form of alarmist narratives that promote surrogacy bans, thereby restricting the economic and reproductive freedom of women who stand to benefit from becoming surrogates. For instance, surrogacy is often misframed as a woman birthing her own child and then selling it to the intended parents, who are not the child’s parents until the sale occurs. This framing has led some commentators to seek bans on surrogacy as a form of child trafficking. When Cambodia banned surrogacy, it went as far as imprisoning surrogate women and convicting them of human trafficking.[14] In 2018, a UN Special Rapporteur issued a report concluding that surrogacy amounted to unlawful sale of children unless the surrogate is free to receive her payment and keep the child, because if payment were contingent on transfer of the child, it would be a sale.[15] Properly understood, however, a surrogacy arrangement is premised on a mutual agreement that the intended parents are the child’s parents from conception, and the surrogate is offering to provide the service of carrying the child to term, but is not considered a parent. In this view, compensating the surrogate amounts to payment for a service rather than the sale of a child, it is clear to all parties who the child belongs to, and the surrogate is not being asked to abandon her child or invited to make a claim to the child. Some commentators have argued that acknowledging a surrogate’s claim to the child is a way to empower surrogate women, but in reality this only promotes the narrative that surrogates are giving up their own children for money, which increases the stigma faced by surrogates. It also promotes confusion by allowing for overlapping claims to the child, a situation harmful to all parties involved. Other commentators have raised concerns about the “commodification” of women, or that it risks exploitative practices and should therefore be banned. However, neither of these arguments is a satisfying justification for depriving fully informed women of the choice to pursue an economic opportunity.
A thoughtful, organized policy campaign could push back on harmful narratives such as these and shape the way surrogacy is understood in order to promote legalization, reduce stigma, and address the legitimate concerns raised by the surrogacy industry while still enabling women and intended parents to benefit from the opportunities surrogacy offers.
Since this proposal relies on influencing government policies, the tractability is uncertain. However, there are several reasons to believe this issue is tractable.
Many voices have individually suggested that surrogacy bans deprive women of opportunity and restrict their reproductive freedoms.[16] Surrogacy bans also restrict the options for gay men seeking to have children, such that the LGBTQ+ rights movement is likely to be an ally in the cause of legalization. Accordingly, there is preexisting support for legalization that simply needs to be organized and channeled. Open Philanthropy could take on that role, organizing a policy movement in favor of legalization. It could elevate the voices of affected women who may not have platforms to express their views, determine the most promising pathways to establishing favorable surrogacy frameworks in countries where women are likely to benefit the most from it, and provide expertise and concrete proposals to make the pathway to legalization easy for governments open to the possibility. Such concrete proposals could include a proposed system for regulating surrogacy clinics and brokers to ensure they are not exploiting women, such as an independent regulatory body that would certify organizations that meet certain standards. Open Philanthropy could propose bilateral or multilateral agreements between nations to regulate the industry, or devise ways to do so through the private sector. It could focus on attempting to legalize surrogacy in India, where surrogacy existed successfully in the past and where women have already criticized the ban, or it could focus on countries that have not yet passed any regulation and may need to address an emerging surrogacy industry soon. In short, there appear to be many options for seeking to influence policy, but no one leading any strategic effort to do so.
Controversiality
Surrogacy is highly controversial, and Open Philanthropy may not consider it worth the risk of getting involved in something so contentious, which some people view as inherently immoral or exploitative. However, the controversial and emotional nature of the subject might mean that Open Philanthropy would be well-suited to provide an unbiased, welfare-focused view of the issue.
Child Welfare Concerns
Some commentators have expressed the concern that the surrogacy industry, especially a transnational surrogacy industry, could create an opportunity for child trafficking. It is not clear to me exactly why this would be the case, especially when compared to other ways that people obtain children, whether through birth, adoption, or currently legal forms of surrogacy. However, I am no expert on child trafficking, and these concerns should be carefully assessed before taking any decisive action to expand transnational surrogacy.
In addition, there have been issues in the past with obtaining the appropriate citizenship and parentage rights for children born through surrogacy. In most cases, the child is ultimately permitted to stay with the intended parents, because most governments are attentive to the best interests of the child even if surrogacy does not technically fit into its legal framework for parentage and citizenship. However, in at least one case in Italy, where the child had no biological connection to the intended parents, the child was taken from the intended parents and put up for adoption.[17] To the extent that many developed countries continue to prohibit surrogacy, this creates a risk that children will be left orphaned or will be unable to legal enter the country of their parents. Ideally, a well-regulated surrogacy industry will only allow surrogacy arrangements to go forward if the parent-child relationship would be acknowledged by all relevant countries. While this might limit transnational surrogacy at first, more countries would hopefully choose to accept the parental rights of intended parents over time.
Exploitation of Women
Surrogacy arrangements generally, and transnational surrogacy arrangements in particular, are usually characterized by a power imbalance between relatively wealthy intended parents and less wealthy surrogate women. In the past, transnational surrogacy has often prioritized the rights and interests of intended parents and placed little emphasis on those of the surrogates. In India, it is well documented that many surrogates were given little to no information about the medical processes involved in surrogacy.[18] Medical care is often inadequate, especially if any complications arise,[19] and unfavorable contract terms might make it effectively impossible for surrogates to change their mind about going through with surrogacy once they sign the contract.[20] Surrogacy contracts often limit a surrogate’s rights to make any medical decisions,[21] and in some cases surrogates were not permitted to keep a copy of their contracts.[22] In short, it is true that the transnational surrogacy industry has exploited surrogate women in the past.
However, as discussed above, restricting the freedom of women who wish to become surrogates is not an effective way to protect them from exploitation. First, this is because women who become surrogates are not vulnerable to exploitation because of surrogacy specifically, but rather because of their socioeconomic status. For the same reasons that they might willingly agree to become surrogates in an industry that does not protect their rights, other economic opportunities available to them, such as work in garment factories, is likely to be similarly exploitative. This exploitation may not be just, but taking away a specific opportunity does not protect women from exploitation so much as force them to choose an even less desirable form of exploitation.
Moreover, exploitation can be addressed through regulations aimed at protecting the rights of surrogates without depriving them of the economic opportunity of surrogacy. For instance, regulations can require that surrogates receive a copy of their contracts in their native language, receive adequate medical care, retain the power to make their own medical decisions, and receive protection in the case of complications that could pose medical or financial risks. While protections are unlikely to be perfect given the power dynamics at play, regulations could still improve the situation greatly while still allowing surrogates to reap the enormous economic benefits of surrogacy, which many women have chosen in the past even with full knowledge of the risks it posed to them.
Alison Bailey, Reconceiving Surrogacy: Toward a Reproductive Account of Indian Surrogacy, at 4, available at https://ir.library.illinoisstate.edu/cgi/viewcontent.cgi?article=1008&context=fpphil
See, e.g., William Houghton, The Average Cost of Surrogacy, available at https://www.sensiblesurrogacy.com/surrogacy-costs/; Surrogacy – Costs and Countries, Jan. 21, 2021, available at https://www.fertilityclinicsabroad.com/ivf-costs/surrogacy-costs-and-countries/; Top 4 Cheapest Countries for Surrogacy that Parents Should Know (In 2022), available at https://www.ivfconceptions.com/cheapest-countries-for-surrogacy/.
Amrita Pande, Revisiting Surrogacy in India: Domino Effects of the Ban, at 10 (2020) (please note that I only had access to a preprint version of this article available at https://www.researchgate.net/publication/346301462_Revisiting_surrogacy_in_India_domino_effects_of_the_ban. The pin cites in these footnotes therefore refer to the pages in that version.).
Id. at 14.
Amrita Pande, Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker, 35 Signs: J. Women in Culture & Soc. 969, 988 (2010). Pande, supra note 1, at 14 (available from author at request).
Matt Blomberg, Surrogate Mothers From Cambodia Given Suspended Jail terms in Landmark Case, Reuters (Mar. 31, 2020), available at https://www.reuters.com/article/us-cambodia-surrogacy-women/surrogate-mothers-from-cambodia-given-suspended-jail-terms-in-landmark-case-idUSKBN21I1NS. https://www.reuters.com/article/us-cambodia-surrogacy-women/surrogate-mothers-from-cambodia-given-suspended-jail-terms-in-landmark-case-idUSKBN21I1NS
Global Human Rights Clinic, Human Rights Implications of Global Surrogacy, Chicago Unbound (2019), available at https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1009&context=ihrc
Pande, supra note 5, at 8.
See, e.g., Sharmila Rudrappa, Why is India’s Ban on Commercial Surrogacy Bad for Women?, 43 N. C. J. INT’L L. 70, 82 (2018).
See, e.g., Neha Thirani Bagri/Anand, A Controversial Ban on commercial Surrogacy Could Leave Women in India WIth Even Fewer Choices, Time (Jun. 30, 2021), available at https://time.com/6075971/commercial-surrogacy-ban-india/; Nida Najar, India Wants to Ban Birth Surrogacy for Foreigners, The New York Times (Oct. 28, 2015), available at https://www.nytimes.com/2015/10/29/world/asia/india-wants-to-ban-birth-surrogacy-for-foreigners.html#:~:text=NEW%20DELHI%20%E2%80%94%20The%20Indian%20government,has%20been%20booming%20in%20India.
See, e.g., Victoria Burnett, As Mexican State Limits Surrogacy, Global System is Further Strained, The New York TImes (Mar. 23, 2017), available at https://www.nytimes.com/2017/03/23/world/americas/as-mexican-state-limits-surrogacy-global-system-is-further-strained.html; Najar, supra note 8.
See, e.g., Pande, supra note 5, at 7; Susan B. Apel, Why Compensating Surrogate Mothers is the Right Thing to Do, The Hastings Center (2011).
Blomberg, supra note 6.
Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, Human Rights Council, A/HRC/37/60, para. 72 (2018).
See, e.g., Pande, supra note 3; Global Human Rights Clinic, supra note 7; Neha Thirani Bagri/Anand, A Controversial Ban on Commercial Surrogacy Could Leave Women in India With Even Fewer Choices, Time June 30, 2021, available at https://time.com/6075971/commercial-surrogacy-ban-india/; Eeshan Sonak, India’s new Surrogacy Regulation Bill falls short of protecting bodily autonomy and guaranteeing reproductive liberty, The National Apr. 21, 2021, available at https://www.thenationalnews.com/world/2022/03/29/indias-new-surrogacy-laws-could-limit-chances-for-some-would-be-parents/.
Paradiso and Campanelli v. Italy, (Appl. No. 25358/12) Judgment of 27 January 2015.
See Global Human Rights Clinic, supra note 7, at 13, note 100.
Id. at 13, notes 101-02.
Id. at 13, note 103.
Id. at 13, note 104.
See id. at 56, note 552.