Buying & Selling Babies: The Problems With Surrogacy

Across the globe, surrogacy is on the rise. As women wait longer to have children, as infertility affects more and more people, and as gay couples look to start a family, there becomes a greater need for gestational surrogates – women who carry the embryo of someone else’s baby. In the UK, where commercial surrogacy is illegal, women do this out of kindness or calling, but overseas, it’s a highly commercial enterprise. In countries like Mexico, Nepal and Cambodia, and until recently, India and Thailand, women – usually from circumstances of low income or poverty – are given a cash incentive to offer up their womb for nine months.

Expectedly, this leads to a bunch of legal issues and ethical dilemmas, many of which are outlined in a new book, Babies For Sale. Edited by the British feminist activist and writer Miranda Davies, it’s a brilliant collection of essays that assess the various complications surrounding international surrogacy law (which, clue: doesn’t really exist), the mistreatment of surrogate women and what surrogacy means for the children who are born of it, both physically and psychologically. Below, we asked Miranda to tell us more about the minefield that is transnational surrogacy.

Yes, it started by chance – someone told me a story of a friend who lived in Australia, who was one half of a gay couple. He and his partner were going to have a baby. They’d been online and signed up to an agency, looked at an egg catalogue and chosen a donor; they’d decided they’d like the features of a “Swedish-style” baby that would be strong, sporty, healthy and blonde. The eggs would be fertilised by both men, so they would both have an equal chance of being the genetic father – and then those fertilised eggs would be put into a little box and sent to Thailand where they would be implanted into the womb of a surrogate. If the embryo took, the baby would grow inside her womb for nine months and then when it was nearly time to give birth the men would be alerted and fly out, pick up the baby and take it back to Australia. I thought this was so extraordinary that I wanted to do a book about it.

Well, there’s traditional surrogacy and gestational surrogacy. Traditional surrogacy is when the woman carrying the baby uses her own eggs, sometimes meaning she’s then more likely to want to keep the baby at the end of the pregnancy. Gestational surrogacy is what my book is about, and that’s when the woman’s womb is almost “rented”. The fertilised eggs are transplanted into her but she has no genetic connection to the child. In these kind of arrangements there is less danger of legal issues because the women would be very unlikely to want to keep a baby to whom they had no genetic link, although most will have signed a contract to say that they can’t do that anyway.

In the 1970s, the first baby was created by mixing sperm and eggs outside of the womb and then putting them back into a woman. The baby, Louise Brown, was born in 1978 in England – she was genetically related to both her parents but because of the way she was conceived she became known as the first “test-tube baby”. The unprecedented success of that procedure opened the way for the development and commercialisation of assisted reproduction technologies, known as ARTs. They led to two famous cases of traditional surrogacy, Baby Cotton and Baby M. These were the first transnational surrogacy arrangements.

The first one, Baby Cotton, involved a British citizen, Ms Cotton, who gave birth in England to a baby for a Swedish couple who were based in the US, but she used her own eggs and the sperm of the intended father, then when the baby was born she decided that she didn’t want to give it up and, because there was no regulation at the time, she had the right to keep the baby but of course, people had paid to have the baby – it was a commercial transaction – so it became a huge scandal. The surrogate was vilified and eventually the baby became a ward of court. The baby was given over eventually to her legal parents and the mother still doesn’t know the whereabouts of her daughter.

So it was these sorts of scandals that provoked people to sit up and actually think about whether there should be some kind of legal regulations around surrogacy. Now commercial surrogacy is illegal in the UK but there’s what’s called an altruistic surrogacy arrangement. An organisation called Surrogacy UK organises surrogacies but you’re only allowed to pay expenses, which is a bit of a grey area. There is a great need for regulation but it’s very difficult to have international regulation because if you have an international convention it still has to be ratified, and that can take years and years and years.

Well, there’s a lot of paperwork and sometimes visa arrangements. If you’re English, say, and you’re a UK citizen and you arrange to have a baby abroad and then you bring it back to England, you still have to get a parental order for that baby, which can take months – so you’re in a legal limbo. Also, there have been cases of gay couples getting stuck in places because the laws of the countries don’t believe in homosexuality or gay marriage. In Mexico, where lots of couples source surrogates, you need to have a birth certificate to get the child a passport to take it out of the country, so couples get stuck there for months. You’re very much at the whim of the local bureaucracy and they can make your life very difficult.

When India banned surrogacy for gay couples, Indian surrogates started going over the border into Nepal where it wasn’t illegal. But when the Nepal earthquake happened, a lot of gay Israeli parents and Indian surrogates found themselves stuck in the aftermath. The babies and pregnant Indian surrogates were then given papers by the Israeli government and hastily flown to Israel to give birth – with little choice in the matter. And so the women really are on the worst end of it – they’re being used as vessels but the argument is that they’re paid more than they would probably earn in 10 years, in nine months. It’s extraordinary.

The clinics generally aren’t concerned about the women; there’s often no insurance involved for surrogates and what many aren’t told about when they sign up are the side-effects of the hormonal drugs that they have to take in order for the embryos to take. Women are usually pressured to have a C-section because it’s more convenient, since the clinic can then alert the parents to come on a certain date. It’s less risky in terms of the birth, I suppose, although there are potential after-effects of C-section. And on the whole, they’re not given any follow-up medical care or anything.

We’ve also seen that in India and Nepal the women have been stuffed in dormitories, completely regulated, not allowed out and not allowed contact with their own children. Surrogates overseas have to have had children to prove that they can have a healthy pregnancy, but then in order to be a surrogate they have to leave those children behind with their fathers or grandmothers, and they’re only allowed to see them once a month. And of course some of them are stigmatised or embarrassed, so they don’t tell their children or they pretend they’re ill.

Yes. Some surrogates are pretty savvy and will start negotiating if they find out they’re going to have twins, but they usually don’t have much of a leg to stand on. And then of course there was that scandal about the twins – the Baby Gammy case. A Thai surrogate had twins and one of them had Down syndrome, and the parents decided to abandon the baby with Down syndrome and they took home the other twin. There are a lot of unknowns because we’re dealing with human behaviour, which can be very unpredictable.

I find it tricky... I am against commercial surrogacy but I’m not 100% against surrogacy per se because I think gay men can make just as good parents as anybody else, and I don’t like to block their route to parenthood. But I would rather they adopted – and adoption is going down as surrogacy goes up. I’m still a bit in conflict with myself over what I really think about it. At the end of the day, the surrogate is only paid when she hands over the baby – the baby becomes the product. So in that sense, the baby is for sale even if it is genetically related to its buyers....

I don’t think so, no. There’s an Indian writer, Amrita Pande, who’s got a chapter in the book that presents the nearest thing. She’s suggested a form of fair-trade surrogacy. She says we should look at surrogacy as a form of reproductive labour. She did a very long study of Indian surrogates and she basically argues that commercial surrogacy constitutes a form of work. So rather than an all-out ban, she suggests surrogacy labour laws and protections including guarantees of informed consent and safeguards such as counselling and follow-up healthcare after the birth.

But again, that’s very much focussing on the surrogates and it’s not taking account of the rights of the offspring, who at the end of the day, are grown in a stranger’s womb. We mustn’t lose sight of the actual babies who grow into adults, because there are more and more cases now of people who find they’ve been born from donor sperm or donor eggs and they want to know where they came from. I think there needs to be much more transparency around donor culture on the whole.