Studies

Below are several studies and reports that examine the effects of surrogacy on women, children, families, and society.


 

Allen, Adeline A. (Vol 41, No. 3, 2018) “Surrogacy and Limitations to Freedom of Contract: Toward Being More Fully Human” Harvard Journal of Law & Public Policy, pp. 753-811.
<http://www.harvard-jlpp.com/wp-content/uploads/2018/05/Allen-FINAL.pdf>

Gestational surrogacy, a contractual arrangement between commissioning parents and the woman who carries the baby in pregnancy (the birth mother), is big business. Yet it remains un-regulated in the United States at the federal level. Popular and academic discourse often view surrogacy arrangements through the lens of freedom of contract. This Article will show that surrogacy does not properly belong in the realm of freedom of contract, but rather in the limitation to freedom of contract. Human flourishing and the common good require both the affirmation and limitation of that freedom, given that parties to a contract are rational beings, but imperfectly so. Although it is a deep-seated human desire to have a genetic child, the absence of whom can be deeply disappointing and painful, surrogacy contracts inherently dehumanize the birth mother and child. After weighing the competing interests and costs in surrogacy, this Article concludes that surrogacy should be prohibited in the United States as against public policy that is oriented toward human flourishing, or toward being more fully human.

 

Anderson, Lori (Oct.-Nov. 1987). “The Aftermath of Baby M: Proposed State Laws on Surrogate Motherhood.” The Hastings Center Report. <http://www.stopsurrogacynow.com/wp-content/uploads/2015/05/Hastings-Center.-Baby-M-aftermath.pdf>.

New Jersey’s Baby M case thrust the issue of surrogate motherhood on state legislatures throughout the country. This article examines the state-by-state response.

 

Bailey A, “Reconceiving surrogacy: Toward a reproductive justice account of Indian surrogacy” (2011) 26, 4 Hypatia 715. https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1527-2001.2011.01168.x

My project here is to argue for situating moral judgments about Indian surrogacy in the context of Reproductive Justice. I begin by crafting the best picture of Indian surrogacy available to me while marking some worries I have about discursive colonialism and epistemic honesty. Western feminists’ responses to contract pregnancy fall loosely into two interrelated moments: post‐Baby M discussions that focus on the morality of surrogacy work in Western contexts, and feminist biomedical ethnographies that focus on the lived dimensions of reproductive technologies and how they are embodied and negotiated in specific cultural contexts. Both approaches have their shortcomings. Uncritically extending Western moral frameworks (for example, liberal feminist political values) to Indian surrogacy work raises the specter of discursive colonialism; with it, worries arise about how Western normative traditions can distort, erase, or misread non‐Western subjects’ lived experiences. Feminist biomedical ethnographic approaches correct this, but raise the specter of a weak moral absenteeism; with it, concerns arise about under‐theorizing the structural harms and injustices shaping surrogacy worker’s lives. I suggest that we might reduce these shortcomings by framing normative and ethnographic engagement with global surrogacy as questions of reproductive justice.

 

Bromfield, N., Rotabi, K. Global Surrogacy (2014), “Exploitation, Human Rights, and International Private Law. Global Social Welfare.” <http://www.academia.edu/7014185/Global_surrogacy_exploitation_human_rights_and_international_private_law…>.

The number of global surrogacy arrangements increased exponentially over the last decade, and the rise in the practice has led to concerns over issues such as social justice, exploitation, and human rights abuses.

 

Comment on Reproductive Ethics, “Worldwide Surrogacy Laws,” 2015 <http://corethics.org/wp-content/uploads/Surrogacy-Laws.pdf>.

A country-by-country overview of laws regarding surrogacy.

 

Deonandan R, Samantha Green, and Amanda Van Beinum, “Ethical concerns for maternal surrogacy and reproductive tourism” (2012) 38 Journal of Medical Ethics 742-745. https://pdfs.semanticscholar.org/4c3e/6cde02af2cf77c9aba0eb1e35906fa248a95.pdf

Reproductive medical tourism is by some accounts a multibillion dollar industry globally. The seeking by clients in high income nations of surrogate mothers in low income nations, particularly India, presents a set of largely unexamined ethical challenges. In this paper, eight such challenges are elucidated to spur discussion and eventual policy development towards protecting the rights and health of vulnerable women of the Global South.

 

Ekman Kajsa Ekis, Being and Being Bought: Prostitution, Surrogacy and the Split Self (Spinifex 2013).

Interview with Kajsa Ekman about her book.

Drawing on Marxist and feminist analyses, Ekis Ekman argues that the Self must be split from the body to make it possible to sell your body without selling yourself. The body becomes sex. Sex becomes a service. The story of the sex worker says: the Split Self is not only possible, it is the ideal.

 

European Parliament, “A comparative study on the regime of surrogacy in EU Member States 2013“ <http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/474403/IPOL-JURI_ET(2013)474403_EN.pdf>.

This study provides a preliminary overview of the wide range of policy concerns relating to surrogacy as a practice at national, European, and global level. It undertakes an extensive examination of national legal approaches to surrogacy. It also analyses existing European Union law and the law of the European Convention of Human Rights to determine what obligations and possibilities surround national and transnational surrogacy. The study concludes that it is impossible to indicate a particular legal trend across the EU, however all Member States appear to agree on the need for a child to have clearly defined legal parents and civil status. (Article PDF).

 

Golumbok, S., Blake, L., Casey, P., Roman, G., and Jadva, V. (2013). The Journal of Psychology and Psychiatry, “Children born through reproductive donation: A longitudinal study of psychological studies, 54:6. <http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3586757/>.

This study found that “surrogacy children showed higher levels of adjustment difficulties” and that “the absence of a gestational connection to the mother may be more problematic.”

 

Lahl, Jennifer (2016, May 4). “Telling the Truth about Surrogacy in the United States.” The Center for Bioethics and Culture <http://bit.ly/2fEHTRR>.

In my coalition work with the countries and leaders of the StopSurrogacyNow campaign, and my travels and interactions with many groups working to prohibit surrogacy outside of the U.S., I often hear that they must fight against the narrative that the U.S. is a shining example of how to ethically permit surrogacy. The industry in the U.S. also wants to offer itself as the exemplar for other countries. The truth is, the U.S. is anything but a country to follow on contract surrogacy pregnancy.

 

Lewin, T. (2014, July, 27). “A Surrogacy Agency that Delivered Heartache.” The New York Times <http://www.nytimes.com/2014/07/28/us/surrogacy-agency-planet-hospital-delivered-heartache.html>.

A New York Times expose on the corrupt practices of many international surrogate arrangements.

 

Klein, R Surrogacy: A Human Rights Violation (Spinifex 2017)

Review

Pared down to cold hard facts, surrogacy is the commissioning/buying/renting of a woman into whose womb an embryo is inserted and who thus becomes a ‘breeder’ for a third party.

Surrogacy is heavily promoted by the stagnating IVF industry which seeks new markets for women over 40, and gay men who believe they have a ‘right’ to their own children and ‘family foundation’. Pro-surrogacy groups in rich countries such as Australia and Western Europe lobby for the shift to commercial surrogacy. Their capitalist neo-liberal argument is that a well-regulated fertility industry would avoid the exploitative practices of poor countries.

Central to the project of cross-border surrogacy is the ideology that legalised commercial surrogacy is a legitimate means to provide infertile couples and gay men with children who share all or part of their genes. Women, without whose bodies this project is not possible are reduced to incubators, to ovens, to suitcases. And the ‘product child’ is a tradable commodity who has never consented to being a ‘take away baby’: removed from their birth mother and given to strangers aka ‘intended parents’. Still, those in favour of this practice of reproductive slavery speak of ‘Fair Trade Surrogacy’ and ‘responsible surrogacy’.

In Surrogacy: A Human Rights Violation Renate Klein details her objections to surrogacy by examining the short- and long-term harms done to the so-called surrogate mothers, egg providers and the female partner in a heterosexual commissioning couple. Klein also looks at the rights of children and compares surrogacy to (forced) adoption practices. She concludes that surrogacy, whether so-called altruistic or commercial can never be ethical and outlines forms of resistance to Stop Surrogacy Now.

It is the global advertising campaigns that groom infertile couples and gay men that have led to the establishment of multibillion cross-border industries: money made literally from women’s flesh.

 

Kuby S, “Surrogacy convention – let’s not forget human rights are for all” Euractiv (19th February 2018). https://www.euractiv.com/section/freedom-of-thought/opinion/surrogacy-convention-lets-not-forget-human-rights-are-for-all/

An international conference is currently trying to regulate surrogacy, a global business estimated to be worth roughly $5 billion a year, and the EU should weigh in on the ongoing negotiations and make all efforts to condemn and limit the practice whose principal victims are children, writes Sophia Kuby.

 

Merritt, T. A., et al. (2014, Feb. 21). “Impact of ART on pregnancies in California: An analysis of maternity outcomes and insights into the added burden of neonatal intensive care.” Journal of Perinatology. <http://www.stopsurrogacynow.com/wp-content/uploads/2015/05/Merritt-et-al-on-ART-2014.pdf>.

The authors reviewed the occurrence of prematurity, low birth weight, multiple gestations, frequency of stillbirths and maternity care–associated variables including hospital stay and hospital charges of women conceiving using assisted reproductive technology (ART) or artificial insemination (AI) compared with women with a history of infertility who conceived naturally, and all other naturally conceived pregnancies in California at non–federal hospitals between 2009 and 2011. Multiple births, preterm births and a higher overall rate of fetal anomalies were found in California after ART/AI for 2009–2011. Cesarean section rates, longer length of maternal stay and hospital charges among women receiving ART/AI could be lowered if emphasis on elective single embryo transfers was a higher priority among providers.

 

Mohapatra, Seema (2012). “Stateless Babies & Adoption Scams: A Bioethical Analysis of International Commercial Surrogacy.” <http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1420…>.

This article examines surrogacy scenarios in India, the United States, and the Ukraine and the plight of children conceived through international surrogacy arrangements.

 

Morgan, M., Horn, A, Bergman, N. (2011). “Should Neonates Sleep Alone?” Journal of Biological Psychiatry. <http://www.stopsurrogacynow.com/wp-content/uploads/2015/05/Should-Neonates-Sleep-AloneBio-Pyschiatry.pdf>.

This article discusses the effects of maternal-neonate separation.

 

New York State Task Force on Life and the Law. “Surrogate Parenting: Analysis and Recommendations for Public Policy,” 1988 <https://www.health.ny.gov/regulations/task_force/reports_publications/#surrogate_parent>.

This report concludes that commercial surrogacy “could not be distinguished from the sale of children and that it placed children at significant risk of harm.”

 

Pande A “Commercial surrogacy in India: Manufacturing a perfect mother-worker” (2010) 35 Signs 969, 976. https://onlinelibrary.wiley.com/doi/pdf/10.1111/japp.12138

Many critics have suggested that international paid surrogacy is exploitative. Taking such concerns as its starting point, this article asks: (1) how defensible is the claim that international paid surrogacy is exploitative and what could be done to make it less exploitative? (2) In the light of the answer to (1), how strong is the case for prohibiting it? Exploitation could in principle be dealt with by improving surrogates’ pay and conditions. However, doing so may exacerbate problems with consent. Foremost amongst these is the argument that surrogates from economically disadvantaged countries cannot validly consent because their background circum- stances are coercive. Several versions of this argument are examined and I conclude that at least one has some merit.The article’s overall conclusion is that while ethically there is something to be concerned about, paid surrogacy is in no worse a position than many other exploitative commercial transactions which take place against a backdrop of global inequality and con- strained options, such as poorly-paid and dangerous construction work. Hence, there is little reason to single surrogacy out for special condemnation. On a policy level, the case for prohibiting international commercial surrogacy is weak, despite legitimate concerns about consent and background poverty.

 

Pande A, Wombs in Labor: Transnational Commercial Surrogacy in India (Columbia University Press, 2014).

Surrogacy is India’s new form of outsourcing, as couples from all over the world hire Indian women to bear their children for a fraction of the cost of surrogacy elsewhere with little to no government oversight or regulation. In the first detailed ethnography of India’s surrogacy industry, Amrita Pande visits clinics and hostels and speaks with surrogates and their families, clients, doctors, brokers, and hostel matrons in order to shed light on this burgeoning business and the experiences of the laborers within it. From recruitment to training to delivery, Pande’s research focuses on how reproduction meets production in surrogacy and how this reflects characteristics of India’s larger labor system.

Pande’s interviews prove surrogates are more than victims of disciplinary power, and she examines the strategies they deploy to retain control over their bodies and reproductive futures. While some women are coerced into the business by their families, others negotiate with clients and their clinics to gain access to technologies and networks otherwise closed to them. As surrogates, the women Pande meets get to know and make the most of advanced medical discoveries. They traverse borders and straddle relationships that test the boundaries of race, class, religion, and nationality. Those who focus on the inherent inequalities of India’s surrogacy industry believe the practice should be either banned or strictly regulated. Pande instead advocates for a better understanding of this complex labor market, envisioning an international model of fair-trade surrogacy founded on openness and transparency in all business, medical, and emotional exchanges.

 

Rainhorn, Jean-Daniel and Samira El Boudamoussi (eds.), New Cannibal Markets: Globalization and Commodification of the Human Body, Editions de la Maison des sciences de l’homme, 2015. <http://www.academia.edu/16595347/New_Cannibal_Markets_Globalization_and_Commodification_of_the_Human_Body>.

Thanks to recent progress in biotechnology, surrogacy, transplantation of organs and tissues, blood products or stem-cell and gamete banks are now widely used throughout the world. These techniques improve the health and well-being of some human beings using products or functions that come from the body of others. Growth in demand and absence of an appropriate international legal framework have led to the development of a lucrative global trade in which victims are often people living in insecure conditions who have no other ways to survive than to rent or sell part of their body. This growing market, in which parts of the human body are bought and sold with little respect for the human person, displays a kind of dehumanization that looks like a new form of slavery.

This book is the result of a collective and multidisciplinary reflection organized by a group of international researchers working in the field of medicine and social sciences. It helps better understand how the emer-gence of new health industries may contribute to the development of a global medical tourism. It opens new avenues for reflection on tech-nologies that are based on appropriation of parts of the body of others for health purposes, a type of practice that can be metaphorically com-pared to cannibalism. Are these the first steps towards a proletariat of men- and women-objects considered as a reservoir of products of human origin needed to improve the health or well-being of the bet-ter-off? The book raises the issue of the uncontrolled use of medical advances that can sometimes reach the anticipations of dystopian lite-rature and science fiction

 

Rudrappa S, “India outlawed commercial surrogacy – clinics are finding loopholes” The Conversation (2017). https://theconversation.com/india-outlawed-commercial-surrogacy-clinics-are-finding-loopholes-81784

What impact are bans on commercial surrogacy having for women who work in the reproductive industry?

 

Seema Mohapatra, “Stateless Babies & Adoption Scams: A Bioethical Analysis of International Commercial Surrogacy,” 30 Berkeley J. Int’l Law. 412 (2012). <http://scholarship.law.berkeley.edu/bjil/vol30/iss2/4>.

This bioethical analysis based on Beauchamp and Childress’ principles reveals certain problems created by the lack of international regulations related to surrogacy. Although the stories demonstrate that surrogates, intended parents, and children born from surrogacy arrangements do receive some benefit, these benefits seem to be diminished by the harms these parties face and ways in which the system undercuts the autonomy of parties and broader distributive justice.

 

Smerdon, U. (2009) “Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India Cumberland School of Law.” <http://www.childtrafficking.com/Docs/smerdon_08_cross_borders_1009.pdf>.

This article discuss the lack of protection for Indian women who become surrogates and calls for an end to surrogacy arrangements between the United States and India.

 

Sveriges Kvinn Lobby. “Surrogacy Motherhood-A Global Trade with Women’s Bodies” <http://sverigeskvinnolobby.se/wp-content/uploads/2013/08/POLICY-PAPER-SURROGACY-MOTHERHOOD.pdf>,

Discussions about surrogacy and its consequences for the surrogacy mother are relatively new. Most European countries do not have regulations or legislations on the issue. There is a need for an exchange of information and experiences to strengthen our knowledge and our arguments.

 

Wilkinson S, Bodies for Sale: Ethics and Exploitation in the Human Body Trade (Routledge, 2003).

Bodies for Sale: Ethics and Exploitation in the Human Body Trade explores the philosophical and practical issues raised by activities such as surrogacy and organ trafficking. Stephen Wilkinson asks what is it that makes some commercial uses of the body controversial, whether the arguments against commercial exploitation stand up, and whether legislation outlawing such practices is really justified.

In Part One Wilkinson explains and analyses some of the notoriously slippery concepts used in the body commodification debate, including exploitation, harm and consent. In Part Two he focuses on three controversial issues (the buying and selling of human kidneys, commercial surrogacy, and DNA patenting) outlining contemporary regulation and investigating both the moral issues and the arguments for legal prohibition.

 

Woo, Irene, M.D., Rita Hindoyan, M.D., Melanie Landay, M.D., Jacqueline Ho, M.D., Sue Ann Ingles, Ph.D., Lynda K. McGinnis, Ph.D., Richard J. Paulson, M.D., Karine Chung, M.D., M.S.C.E. “Perinatal outcomes after natural conception versus in vitro fertilization (IVF) in gestational surrogates: a model to evaluate IVF treatment versus maternal effects” Fertility and Sterility, Vol. 108, Is. 6, Pgs. 993–998. <https://www.fertstert.org/article/S0015-0282(17)31941-6/fulltext>

Neonates born from commissioned embryos and carried by gestational surrogates have increased adverse perinatal outcomes, including preterm birth, low birth weight, hypertension, maternal gestational diabetes, and placenta previa, compared with singletons conceived spontaneously and carried by the same woman. Our data suggest that assisted reproductive procedures may potentially affect embryo quality and that its negative impact can not be overcome even with a proven healthy uterine environment.

 

Ziff, Elizabeth. “‘The Mommy Deployment’: Military Spouses and Surrogacy in the United States, Sociological Forum Volume32, Issue2, June 2017, Pages 406-425. <https://onlinelibrary.wiley.com/doi/abs/10.1111/socf.12336>.

This article examines narratives of women who are surrogates and are married to members of the military in the United States. I show how this group of women invoke and transpose their structured military experiences and institutional understandings of sacrifice, duty, and responsibility when constructing their surrogate experience. Using semistructured interviews with 33 military spouses who have been surrogates,​ I trace the parallels they narrate between their role as military spouse and their role as surrogate—with metaphors of deployment, relocation, and the “hurry up and wait” game, in addition to strict daily regimentation. Through this work, I highlight the often‐surprising transposition between militarized and surrogacy narratives invoked by surrogates and show how the practice of surrogacy allows them to tap into the narratives they have crafted through their experiences as a spouse to make a difference in the lives of others, contribute financially to their own families, and to gain a sense of importance outside of their everyday roles. The narratives provide for a better understanding of the commercially arranged surrogate experience in the United States and the state‐structured military spouse experience by exposing the skills, language, and habits utilized by this group of women.