Gestational surrogacy, under serious threat, should not be banned

Earlier this year, I was invited to discuss gestational surrogacy with dozens of the heads of women’s rights organizations looking to shape global policy. I was startled to discover I was the only participant on the Zoom call who had anything positive to say about surrogacy.

Every single speaker condemned the practice as exploitative, coercive, and inconsistent with the view that the birth mother is the “real” mother of every baby. I later found out more than 250 women’s organizations from 18 countries have called for a total ban on surrogacy — even altruistic surrogacy, when a sister, family member, or close friend assists for free. 

As the number of people struggling with infertility continues to rise, surrogacy — the only option for as many as 17% percent of infertile women — is under serious threat. The danger arises from an unlikely but powerful alliance between religious groups, some members of the Make America Healthy Again movement, and feminists.

This month, the United Nations special rapporteur on violence against women and girls has called for an international ban on surrogacy, condemning the practice as a crime against women. The Vatican has also called for a ban. The Southern Baptist Convention, the largest Protestant denomination in the U.S., said this year that “commercial surrogacy often treats children as products and women as a means to an end.”

Surrogates can be either altruistic or commercial, where intended parents find women willing to bear their child for payment. Altruistic surrogacy is ethically noble and surely ought not be prohibited anywhere in the world. 

Commercial surrogacy primarily benefits wealthy people who can afford to pay a surrogate, and private clinics ready to profit handsomely. Still, those implementing or calling for bans don’t acknowledge a key ethical value — the right to have a genetically related child. 

There are plenty of reasons for this fierce and unequivocal opposition, both in the U.S. and abroad. In many countries, women are used as surrogates but are given no health care, food assistance, legal help, or much in the way of take-home pay. Couples and singles from wealthy countries travel to nations like Mexico, Georgia, Colombia, Kenya, Ukraine (even during the war), Albania, and Guatemala to find a surrogate and a broker willing to work with them. This unregulated free market has led to huge problems.

Consider recent events in India, a country that nominally bans surrogacy. Recently, police busted a racket operated by a network of seven women and a man in collusion with several fertility centers. The investigation revealed that the woman running the surrogacy program targeted financially vulnerable local women, persuaded them to become surrogates, and kept them at her residence in order to collect additional room and board charges from them while making huge profits. 

Many other countries have had similar problems. Some nations, including Brazil, the U.K., Bulgaria, Canada, Australia, Nepal, and Cambodia, have gotten so fed up with rampant unethical practices that they have banned commercial surrogacy.

It may be that international surrogacy is rife with thieves. Prohibiting the rich from traveling to sketchy clinics that use very poor, hugely vulnerable women to carry their babies may make sense.

Is the U.S. any better? Not really.

Surrogacy here is an ethical and legal morass, due to a patchwork of inconsistent state laws, court opinions, state self-regulation, and a few outright bans. Over and over, the use of women as surrogate mothers has produced heartbreaking lawsuits. Some states, like California, enforce contracts between the intended parents and the surrogate that lay out the responsibilities and rights of each party. Other states allow surrogacy but refuse to enforce contracts. Some states facilitate the use of adoption so the intended parents can be recognized as the child’s legal parents. No states limit who can participate in surrogacy by age, criminal record, health status, medically diagnosed infertility status, the number of concurrent surrogates who can be utilized at the same time, or financial solvency.

In this moral tower of Babel, scams and scandals erupt everywhere. Consider just two of many recent examples. 

Last year, Florida billionaire Greg Lindberg was found to have hired egg donors and gestational carriers from his prison cell, where he was serving a sentence for money laundering and fraud, to produce children with his sperm at multiple clinics simultaneously across the United States. Lindberg called this “the baby project.” He had already sired 12 children, including nine within five years. Some were born while he was in prison. The children were living together under the care of highly paid domestic caregivers.

In California, 26-year-old Alexa Fasold, due to give birth to a baby boy this fall, thought she was a surrogate for a couple with fertility issues. Then she learned that the agency she was working with was under investigation. The agency’s owners, Silvia Zhang and Guojun Xuan, have been accused of running a scam in which multiple women across the U.S. were unknowingly carrying embryos for the couple at the same time. Investigators found 15 children, ages 3 and younger, in their Arcadia, Calif., mansion. Meanwhile, Fasold told the local media she’s devastated and unsure of what will happen to the baby she’s carrying.

Keeping reasonable, non-exploitative, legal paths open to parenthood doesn’t require a total ban on surrogacy. In altruistic surrogacy, it’s crucial to make sure that women aren’t coerced and that all parties are satisfied with the surrogate’s role after birth. Regulations similar to those that govern kidney donations from relatives and friends can help manage the issues. The surrogate must be competent, and needs her own legal advocate, a clear agreement about her role post-birth, coverage for all her health and travel costs, and release from any obligations should there be health complications for any children she bears.

In commercial surrogacy, agencies should be required to disclose their ownership, legal liabilities, financial solvency, business location, marketing practices, eligibility requirements for services, screening practices for surrogate candidates — including criminal record, age, and health — policies on concurrent surrogacy, and transparency of all parties involved to any children created.

Women who want to become surrogates should be licensed. They must be competent and give consent, with demonstrated understanding and demonstration of good health. In addition, the compensation system must be open and fair, and include all pregnancy costs and failed attempts, full health insurance, a requirement that the intended parents are legally bound to accept all children born, disclosure of the source of embryos, clarification of how adoption will be accomplished, restriction on frequency with which surrogacy can be safely undertaken, the availability of psychological support pre- and post-birth, and the knowledge that the surrogate’s role in child-bearing will be disclosed upon request of any child she helps create. 

If minimal mandatory regulation is not established throughout the U.S. and internationally, access to all forms of surrogacy likely will soon become severely restricted or outlawed. That would be a tragedy for many people seeking to become loving parents.

Arthur Caplan is head of the Division of Medical Ethics at the NYU Grossman School of Medicine.