Author: Hera, Content Writer
Headline Diplomat eMagazine, LUDCI.eu
Surrogacy, like many beginning-of-life issues, is a contentious topic. While it provides a way for individuals and couples who cannot carry children themselves to have genetically related offspring, it also relies on the willingness of a woman to carry the child for another person. In some cases, this may involve compensation or “commercial” surrogacy.
The rise of in vitro fertilization has led to increased commercial surrogacy, but it remains controversial due to legal and philosophical issues. These include concerns around parentage and nationality of the child, exploitation of women, and the potential for scams. In addition, scholars and human rights advocates have raised questions about the necessity and legality of surrogacy, and some argue that it should be considered illegal.
Child Trafficking in the Context of Commercial Surrogacy: International Law and Policy
It is undeniable that human trafficking laws play a crucial role in preventing and combating instances where surrogacy is used as a means of trafficking in persons within the broader network of international laws governing assisted reproductive technologies. While anti-trafficking laws have historically targeted modern slavery and sexual exploitation, they have expanded in recent years to encompass other forms of trafficking, such as the trafficking of people for organs, tissue, and human egg cells. Although international anti-trafficking laws do not specifically target commercial surrogacy, they can be used to regulate reproductive tourism in several ways.
Women can be trafficked to serve as surrogates or for harvesting their egg cells. While compensated surrogates may not necessarily be considered victims of human trafficking, the legal elements of the crime of human trafficking can still be met in surrogacy. This creates a potential problem, as it can be difficult to distinguish between legitimate practices and criminal behavior in commercial surrogacy.
The Movement To Ban Surrogacy
As mentioned earlier, surrogacy poses potential problems for the surrogate mother, the baby, and the intended parents. As a result, some advocates for human rights, feminists, policymakers, and scholars in the medical and legal fields have argued in favor of banning surrogacy altogether or at least banning the commercial form.
In addition, the European Parliament declared in 2021 that using sexual exploitation for surrogacy and reproductive purposes infringes on human rights and dignity. Surrogacy also violates the child’s rights, as they are turned into a commodity and subjected to human trafficking.
While they are proposing regulations on the jurisdiction, applicable laws, recognition of decisions, and the creation of a European Certificate of Parenthood, the Federation is concerned that it creates an unfair asymmetry compared to the rigorous and intensive process of international legal adoption.
Adoption prioritizes the child’s welfare at the expense of long wait times. It requires couples to undergo a difficult approval process to prove their ability to execute the responsibilities of parenthood. In contrast, surrogacy demands no such requirements of the intended parents, who prioritize their desire for a child above the child’s best interests. If surrogacy is held to the same standards as international adoption, certain surrogacy arrangements would be deemed illegal adoption.
As noted in earlier reports, surrogates have been exploited to a concerning degree in their work. This outcome, however, is not unexpected, as labor exploitation and oppression are prevalent characteristics of all uncontrolled sectors.
Consequences Of Banning Commercial Surrogacy
The issue remains whether or not such a ban can prevent the physical and legal harm associated with commercial surrogacy. The answer is no; banning commercial surrogacy may only drive the practice underground. For instance, a global ban could result in black market surrogacy arrangements that expose parties to greater risks of exploitation.
Examples from China and India demonstrate the dangers of commercial surrogacy bans. In China, surrogacy is neither legal nor illegal but is generally disapproved of. Despite this, a market for commercial surrogacy has emerged due to a relaxation of the one-child-per-family policy and cultural pressures.
However, the government must still intervene to regulate the practice, leaving surrogate mothers with little protection. The commercial surrogacy market in China is primarily reserved for the wealthy. But because these agreements are subject to proper legal oversight, information on protections for surrogate mothers is limited.
Consequently, some Chinese citizens who cannot afford commercial surrogacy in their own country seek it elsewhere, leading to an illegal cross-border surrogacy market with Cambodia. Because surrogacy is illegal in Cambodia, women caught participating in commercial surrogacy contracts could face arrest and human trafficking charges, potentially leading to imprisonment and fines. In some cases, these women are arrested but then sent home with babies not biologically theirs to raise.
Based on several global studies, it has been shown that certain women derive satisfaction from surrogacy. They consider the experience of carrying and giving a child to someone else far more significant than other trivial or degrading forms of labor. Consequently, why should these women be prohibited from pursuing such work if they desire to do so?
Conclusion
More than simply creating or amending national or international laws is needed to mitigate the risks associated with commercial surrogacy. While improvements to these laws are necessary, a collective international response is required to address the underlying issues. There must be more than national initiatives to address the problem, as surrogacy agencies can exploit loopholes and move to countries where commercial surrogacy is still legal.
Banning commercial surrogacy outright could worsen things, and governing it is the best option. It is crucial to ensure women’s dignity, integrity, and self-determination throughout the surrogacy process and the rights and well-being of children after it. There is a pressing need to develop a comprehensive regulatory framework at the international level to strike a fair balance for all parties involved. Although a global agreement is challenging, it is essential to work towards common ground to uphold the rights of the most vulnerable and further reproductive rights for all.
Featured photo: Saliha Sevim, Pexels
