The Ethics of Cross-Border Reproductive Travel: Gestational Surrogacy

In this paper, the role of the biological imperative when parents make decisions regarding gestational surrogacy is assessed. Cross-border reproductive involving gestational surrogacy circumstances are described, and the varying incentives for this travel are examined with the values of justice, autonomy, and fairness in mind. Australia, the United Kingdom and India’s gestational surrogacy laws are examined and assessed for accessibility and fairness.This ethical dilemma is even likened to that of kidney commodification to make a stronger argument about the ethics of compensating someone for services that they otherwise may not have consented to.


 

INTRODUCTION:

In our contemporary society, the family dynamic is undergoing rapid change. Although the idea of the traditional, nuclear family is changing more and more everyday, there are still prevalent pressures for adults to maintain a genetic connection to their children. In cases of infertility, this drive for a genetic component is what makes couples interested in gestational surrogacy. The geographic location of the potential parents is what drives differing incentives for considering cross-border gestational surrogacy. Although surrogacy is an accepted method of reproduction by some, when put in a global context, exploitation of autonomy can occur, and fairness is compromised. It is this cross-border context that exacerbates and makes this exploitative relationship most clear. This genetic prioritization is what motivates people to use cross-border surrogacy, and maybe even incentivize them to exploit others in order to attain a genetic relationship to their potential child. However, it is equally important to acknowledge that in some cases, the potential parent is not aware of these preset conditions involved in global surrogacy arrangements and the exploitation that can occur. The prevalence of these issues must be understood and assessed in order to ensure the protection of essential rights for all parties involved. In addition, one must analyze what duties health care providers may have in advising and treating patients who travel for these reproductive services. Through this exploitation, the fairness and autonomy of the surrogate becomes compromised. Although one may argue that domestic surrogacy is still ethical, and is a better option than adoption– not everyone has the access to these procedures. To minimize the overlooking of exploitation, we must be open to the utilization of adoption and work to make more gestational surrogacy agreements with surrogates from high income countries. The gift that surrogates give to adoptive parents is irreplaceable. And that is the gift of life, and family. In attempts to preserve this beautiful gift, this paper will explore the ethics of the using a gestational surrogate abroad, and argue that the commercialization of gestational surrogacy has lead to the exploitation of surrogates.

WHAT IS CROSS BORDER REPRODUCTION?

Cross Border Reproduction

Cross-border reproductive travel refers to the transnational market in assisted reproductive services (ARTs), including egg donation, in vitro fertilization (IVF), and surrogacy. However, the focus of this analysis is on gestational surrogacy in this context. Infertile couples travel to a host country to obtain this service because it is prohibited, inaccessible, or more expensive in their home country. Using a gestational surrogate abroad is unethical, and has lead to the exploitation of surrogates who are often members of vulnerable populations in lower income countries.

In order to maintain a genetic component to their child through the means of surrogacy, prospective parents utilize in vitro fertilization. Through IVF, medications stimulate the genetic mother’s ovaries to produce multiple follicles and eggs. In a natural menstrual cycle, only one follicle with one egg would develop. Then, the eggs are retrieved from the ovaries because natural release and tubal pickup of the egg can be inefficient. Next, fertilization is coerced in a lab setting, where the embryos are cultured for several days. Selection of the “best” embryo through “preimplantation genetic diagnosis” increases the likelihood for success of the process. The embryo is then transferred to the middle of the uterine cavity of the gestational surrogate, allowing the tubal transport of the embryo to the uterus to be bypassed. Although IVF is just one way that hopeful parent(s) can attain a genetic relationship to their child, there are also different ways to ensure these genetic links. In some cases, the hopeful biological mother does not have viable eggs. In this case, the father’s sperm may be combined with an anonymous egg donors egg (who is not the same person as the surrogate).

Increasing Rates Of Reproductive Travel/Varying Policies

During 2015 in the United States alone, CDC’s 2015 Fertility Clinic Success Rates reports that there were 231,936* ART cycles performed at 464 reporting clinics in the United States throughout the year, resulting in 60,778 live births (deliveries of one or more living infants) and 72,913 live born infants. Out of all of the ART cycles performed in 2015, 45,779 were banking cycles, meaning that the intent of the ART cycle was to freeze all resulting eggs or embryos for future ART cycles and for which we would not expect a resulting pregnancy or birth.  Although the use of ART is still relatively rare as compared to the potential demand, its use has doubled over the past decade. Today, approximately 1.6% of all infants born in the United States every year are conceived using ART. According to a 2014 annual report from the Society for Assisted Reproductive Technology, a record number of women are relying on In-Vitro Fertilization to get pregnant and have children. With 95% of IVF cycles in the United States being reported through SART registry, SART is one of the most prevalent IVF fertility clinics in the country. That being said, the statistics that lie in the transnational market are much greater, but no specifics are available on a global scale. It is unclear just how many people in the world  have used cross border surrogates. This information gap exists because in some places (like Australia), seeking a global surrogate and traveling to obtain those services is criminalized. In addition, many seek “under the table” services because they are offered at a lower cost. This ambiguity reveals just how ethically and legally complex the issues of cross border gestational surrogacy are.

Conditions/Treatment And Factors Contributing To Surrogate Compensation

Many a time when potential parent(s) look to cross-border surrogacy as a means of reproduction, they want to ensure as much control and regulation on the process as possible. Especially because the potential parent herself is not carrying the child, there is even more of a need to regulate the situation. This desire for a controlled setting is what can drive them to physically travel across borders to the fertility clinic that they have made the arrangements with. The fertility clinics that allow this regulation and control are usually the more popular and utilized clinics in this cross-border setting. Worldwide Surrogacy, located in Connecticut suggests that there are multiple facets that determine the type of compensation a surrogate may receive. One factor for the variation in surrogacy pay is if a woman has been a surrogate before and is applying to become one again. Her base compensation has the potential to be substantially higher, given that she is familiar with the surrogacy process and procedures. In addition, compensation varies whether a surrogate has a singleton pregnancy or  multiple pregnancy (ie. twins). If a surrogate is pregnant with twins, she may be paid additional compensation because of the higher risks posed by the multiple pregnancy. In addition, these higher risks result in a basis and need for more frequent medical attention. Also, any invasive procedures that a surrogate could undergo may also provide additional compensation. For example, if she has to undergo a cesarean section during the pregnancy, she will be paid additional compensation for the pain, suffering and recovery time involved in having a C-section.

Geographic location is not the only factor that impacts the incentives of the intended parent(s). Another component that plays a role in a surrogate’s base compensation is the geographical location of the surrogate, i.e. the state in which she resides. At Worldwide Surrogacy specifically, many intended parent(s) prefer surrogates who are local to either the agency, or their home. This may influence intended parent(s) to pay a higher base compensation to the surrogate based on her proximity to them or their clinic. Intended parent(s) feel this may sometimes lead to a stronger connection with their surrogate, because they can meet in person before or during the pregnancy. In addition, surrogates who have health insurance that provides maternity coverage and does not have a clear surrogacy exclusion will generally receive higher compensation. With that being said, these are only some of the many elements that can contribute to the wide range in surrogacy compensation.

WHY PEOPLE WANT SURROGACY IN GENERAL

A Prioritization Of Genetic Relationships

Genetic relationships have been prioritized for a variety of reasons since the beginning of time. Whether it be wanting to leave your legacy behind, or have phenotypic and genotypic similarities to your child– this desire stems from an innate and evolutionary need to pass on traits in order to have genetically related offspring.

The Biological Imperative 

The biological imperative can be described as the obligation one feels to attain a genetic relationship to their potential child. But where do these pressures stem from? The biological imperative can also be looked at as an intangible connection one may feel to their child that otherwise, they may not feel if they were not genetically related. What is that driving force that makes couples travel across the world in order to obtain these services? In cases where couples are not dependent on money or banned in their country, why go through all that trouble? Many couples in the UK seek global gestational surrogacy because it is banned in their home country, and they feel that the surrogate should be compensated, acknowledged and therefore benefitted for their services. Of course, the same thing happens when couples seek gestational surrogacy in their home country. However, the concept of the biological imperative can be exacerbated through this travel. The goal of our species as evolutionary beings is to pass along our genes. That “innate feeling” that we want to be genetic parents can be traced back to the most fundamental reason that we exist as a species. Although this is an inherent feeling that we cannot control, it is important to discuss the consequences of this innate quality, and discuss at what point these consequences outweigh the evolutionary importance in passing on your genetics.

Genetic Relationships

It is argued that genetic relationships are beneficial to the child because a parent’s knowledge that a child is ‘his’ child can give a very special sense of love for and commitment to that child; that love and commitment will be of great benefit to the child; the child will also reap the benefit of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up and knowing how to manage health care in the event of a family history of diseases. In addition, a wider family’s knowledge that it is ‘their’ child can give birth to similar feelings of love and commitment, perhaps especially in grandparents. Although there are many purported reasons that genetic relationships prove to be beneficial to children, many cases of cross-border reproductive travel demonstrate perhaps the prioritization of genetic relationships to serve to the benefit of parents; creating the issue of exploitation of other people. We must assess to whose benefit is this really serving to, so that we can ensure equality for all parties involved.

Social Parenthood

There is a lot of historical context to provide support for the importance of genetic parenthood. However, the concept of social parenthood contradicts that. Social parenthood encompasses those who are neither the child’s mother or father. It grows through continuous day-to-day interaction, companionship, interplay and mutuality, which fulfils the child’s psychological needs for a parent, as well as the child’s physical needs (Warzynski). Its significance lies in its very characteristics, namely providing for the child’s needs, initially through feeding, nurturing, comforting and loving, and later by guiding, socialising, educating and protecting. This notion demonstrates that you don’t have to be genetically related to the child to make a substantial impact on their quality of life. Social parenthood denotes that a genetic component does not have to be present in order for the child’s quality of life to be preserved. The idea of social parenthood also sheds light on the impact of environmental factors on a child’s development. Why is the role of the environment being excluded as a factor contributing to  children’s development? In a search for a biological imperative, are parents underestimating the impact of the environment on a child? Does this prioritization possibly reflect the values that contemporary society has ingrained within us? Are people underestimating their own abilities as parents if they were not genetically related to their child?

WHY PEOPLE WANT CROSS-BORDER SPECIFICALLY

The incentives for potential parents vary greatly. These incentives are dependent on finance, geographic location, sexual orientation and even surrogacy conditions.

Incentives For Travel

Financial

Many couples have financial incentives for reproductive travel. For example, in India the procedure would cost the infertile couple $30,000 to $50,000,  which is ⅕ the cost of the procedure in the United States. In the United States, the standard cost for surrogacy with IVF is $140,000. However, this can be negotiated for typical prices around $73,850. However, in India, surrogacy with IVF costs around $38,000 USD. In Canada, surrogacy with IVF costs around $75,000 USD. In the United Kingdom, it will cost around $85,000 USD. This cost comparison of the most prevalent countries for receiving these procedures demonstrates that India is the cheapest option. This may be a contributing factor as to why India has become the surrogacy capital of the world. In addition to the varying costs, there are varying conditions, treatment, and regulation of the procedures.

The table below from from Sensible Surrogacy(“How Much Does Surrogacy Cost?” Sensible Surrogacy, www.sensiblesurrogacy.com/surrogacy-costs/. Accessed 8 May 2017.) demonstrates a cost comparison of the varying total cost for surrogacy based on geographic location. This data estimates the out-of-pocket costs for surrogacy and associated services. These averages are based on legal fees, surrogate compensation fees, and clinical fees. However, the intended parents must budget for travel expenses and fertility medications.

Banned In Home Country (Accessibility)

Surrogacy is legal dependent on geographic location. For example, in Australia both gestational and traditional surrogacy are legal in a domestic setting. However, both of these procedures must be altruistic by ensuring the coverage of only basic medical expenses. Commercial surrogacy is illegal in Australia, and to cross-borders to attain these services is even criminalized. Many Australians are burdened with the issues of accessibility. Despite the legal ramifications, many risk going to jail in order to attain these commercialized services outside of Australia. The incentives for this implementation stems from the case of Baby Gammy. Baby Gammy was a twin born in Thailand with Down Syndrome who was left behind by the Australians who contracted his birth. His sister, who did not have Down Syndrome was taken home by the couple. Although this case brings up other ethical dilemmas involving identity, fairness and disability– it demonstrates possibly why the Thai government criminalized surrogacy by foreigners in 2014 and why Australians are looked down upon for utilizing this travel (The Atlantic).

A more severe example of inaccessibility arises with Italy. Countries such as France, Germany, Spain, Portugal, and Bulgaria prohibit all forms of surrogacy. In Italy, all forms of surrogacy are illegal. In accordance with the law No. 40 about assisted reproductive technologies, Italians have the right to apply methods of artificial fertilization if they provide infertility certificate. Herein third party reproduction, including surrogacy and donation, are forbidden. It is also mentioned that in case of unlawful application of these methods, donor of gametes, for example, doesn’t acquire parental rights.

Banned Dependent On Sexual Orientation

Many same sex families have been burdened with a ban of using surrogacy because of their sexual orientation. In Australia before March of 2017, it was illegal for same sex couples to use any form of assisted reproductive technology. However, in March of 2017, the South Australian Parliament  passed a law allowing equal access to assisted reproductive technology and altruistic surrogacy for same-sex couples. Do these laws inhibiting same sex couples from using domestic surrogacy almost force them to consider cross-border methods if they want to become genetic parents? One may argue that if same sex couples desire a child, they can just utilize adoption as an alternative method if surrogacy is banned dependent on sexual orientation. However, it is the desire of the biological imperative that keeps people from considering ulterior methods. The desire to be biologically related to the child is so strong that same sex couples still seek these services despite the inequality of accessibility under the law. Therfore, the restriction of surrogacy based on sexual orientation can result in the compromising of one’s integrity, and eventually fairness to the surrogate.

HOW CROSS BORDER WORKS AND DOESN’T WORK IN SOME COUNTRIES

Australia

In Australia, it is legal to seek altruistic, domestic, gestational surrogacy. Altruistic surrogacy describes an arrangement where the surrogate is not being compensated for her services beyond basic medical expenses. However, it is illegal in Australia to compensate a surrogate for her services. This extends so far as to Australia criminalizing the traveling across borders to seek commercial services. In 2012, Australian reports for reproductive travel indicated that the number of Australian couples traveling overseas– to India, the United States, Thailand, and Canada has tripled in three years. According to Surrogacy Australia, a Melbourne-based advocacy group for parents using surrogacy, a survey of 14 surrogacy agencies overseas this year found the number of babies born on behalf of Australians jumped from 97 in 2009 to 269 last year. Already, 254 Australian surrogate babies have been born this year, the group says. Official figures show only 19 children were born in Australia last year under regulated altruistic surrogacy arrangements, in which the surrogate mother offers her services free but the intended parents pay medical costs. These statistics demonstrate that commercial surrogacy is actually preferred and prioritized over altruistic means. But why is this? Although a potential parent may argue that commercial surrogacy is bad because it costs more money out of their pocket, others may argue that it is more fair as opposed to altruistic because the surrogate is being recognized for her services. Although seeking services outside of their home country has clearly become so prevalent, Surrogacy Australia President, Sam Everingham, has noticed that this growing incentive is due to couples feeling desperate and had no choice but to go overseas to start a family and avoid this “legal nightmare” that surrogacy encompasses within Australia.

India

India is considered to be the surrogacy capital of the world. In India, commercial surrogacy has been legal since 2002. Commercial surrogacy describes an arrangement where the surrogate herself is compensated for her services, as opposed to altruistic where only basic medical expenses are paid for. In addition, commercial surrogacy addresses both traditional and gestational surrogacy. Traditional surrogacy can be defined as a form of surrogacy where the surrogate uses their own egg and is artificially inseminated by the intended father’s or donor’s sperm. The surrogate mother then carries, delivers, and gives the child to the intended parent(s) to raise. The surrogate in this case is the baby’s biological mother. Gestational surrogacy is considered an agreement where a woman sustains and delivers a child to whom she is not genetically related. In order for a women to serve as a gestational carrier, an embryo is implanted in her uterus by in vitro fertilization. It is argued that compensating a surrogate is not exploitative because they are being acknowledged, recognized, and financially benefitted for their services. However, one can also argue that it is more exploitative because it incentives someone to use their body for something that they would not otherwise consent to. In addition, egg donation in young women is another example of people coerced by financial incentives. These arguments parallel with situations of kidney commodification. Kidney commodification describes the legalization of a kidney market. In the United States alone, approximately 97,000 people are awaiting a life-saving kidney transplant. Although one can sustain a healthy life with one kidney, how can we ensure that their decision making abilities are the best that they can be with this financial incentive?

Isha Devi

In September of 2016, 30 year old Isha Devi was six months pregnant with twins. However, she was carrying these children for someone else. With a husband and two children of her own, they lived a simple life in the countryside of India. Her husband worked everyday as a rickshaw driver. The simple life she once knew changed forever when her husband’s rickshaw slid under a bus. This terrible accident immediately burdened her family with emotional, and now medical debt.  Feeling helpless, Isha decided to move her family to New Delhi to be closer to a fertility clinic. Isha explains, “I was helpless” and became a surrogate to expunge a family debt. She also explains that she would never have taken on this role if her husband didn’t get into an accident. Feeling forced into this position, Isha earned $160 a month during the pregnancy in addition to a lump sum of $4,200 (NPR). The role of commercial surrogacy provided benefits to Isha and her family because they were in dire need of expunging medical debt. However, how could Isha have made a fully informed decision and truly consent to becoming a surrogate with these financial burdens pressuring her? How do these financial incentives affect her ability to advocate for herself?

United Kingdom

In the United Kingdom, commercial surrogacy is prohibited and only altruistic compensations are allowed. Many hopeful parents believe that compensation is integral to the process. For example, many from the UK actually travel to India for the because the surrogate is allowed to be compensated. In this case, it is apparent that the hopeful parent(s) wants to recognize the surrogate for her services through monetary rewards. Under UK law, when a baby is born, the woman who gives birth is the legal mother – whether or not she is biologically related to the child – and if she’s married, her partner is considered to be a legal parent as well. After a surrogate mother has given birth, the intended parents must make an application to the family court to become the baby’s legal parents. In the eyes of the law, any written agreements between the intended parents and the surrogate are not enforceable. Although this introduces the concept of ownership, it is important to recognize that perhaps the genetic component between a parent and child is more legitimate in the eyes of the law.

MODEL FROM ANOTHER ESTABLISHED PARADIGM

Kidney Commodification

To ensure a thorough analysis of the ethics of cross-border reproductive travel, these moral and ethical dilemmas can be likened to those that arise through the concept of kidney commodification. Recognizing that this deals with the commodification of a body part rather than reproductive services and the use of one’s body as a vessel, both situations shed light on threatening financial incentives. Kidney commodification describes the legalization of a kidney market. In the United States alone, approximately 97,000 people are awaiting a life-saving kidney transplant (National Kidney Foundation). One is able to sustain a healthy life with the use of just one kidney. Similar to commercial surrogacy, dependent on the geographic location, your kidney would vary in price and value. For example, in India, a kidney fetches around $20,000. In China, buyers will pay $40,000 or more. A good, healthy kidney from Israel goes for $160,000. In favor of compensated organ donation, it is argued that: “(1) the charge that compensation fosters “commodification” has neither been specific enough to account for different types of monetary transactions nor sufficiently grounded in reality to be rationally convincing; (2) although altruism is commendable, organ donors should not be compelled to act purely on the basis of altruistic motivations, especially if there are good reasons to believe that significantly more lives can be saved and enhanced if incentives are put in place, and (3) offering compensation for organs does not necessarily lead to exploitation—on the contrary, it may be regarded as a necessity in efforts to minimise the level of exploitation that already exists in current organ procurement systems,” (LD De Castro). Contrastingly, some argue that compensated organ donation may incentivize someone to use their body for something that they would not otherwise consent to. How can authorities assess the incentives that pressure those to consent? Do certain incentives take precedence over others? How can one really even “consent” with these financial burdens clouding their judgement and decision making abilities?

CONCLUSION

Cross border surrogacy is exploitative and therefore unethical because it incentives someone to use their body for something they would not otherwise consent to. In addition, this exploitation overrides people’s autonomy to become genetic parents and the best interest of a child to be genetically related to their parents. The process in such a global context takes advantage of the underprivileged/disadvantaged position that these surrogates from lower income countries are in. Therefore, I recommend adoption, and the strict regulation of utilizing surrogates only from high income countries. Although we live in a world that has a drastically changing family dynamic, genetics remains at the forefront of the “ideal”. Yes, you are connected to your child, and an actual piece of you is within them. However, adoptive parents who look to gestational surrogacy frequently underestimate the value that environment plays in the development of one’s child and are unaware of the positive impact of social parenthood. In America alone, in 2015 there was over 100,000 foster children eligible for and waiting for adoption (Adoption and Foster Care in America).  If adoption further becomes accepted as a viable method, we can limit exploitation that occurs from surrogacy in this global setting. Although in cases of gestational surrogacy, genetics is at the forefront of the adoptive parents decision-making processes, we need to adjust the mindset further to differ the norm. If these solutions are heeded, it’s possible that the gift of family and life that surrogates give would become less of a moral and ethical dilemma.

Genetics can only go so far in an individual if their environment is not competent. Regardless of if a genetic relationship to the child is present, environmental factors contribute more than we know to the psyche of the individual. Just because a child is not genetically related to their parents does not make them less valuable, or less of a child to the adoptive parents.  I do not think that a global ban on commercial surrogacy would be effective. However, developing nations that permit this must be able to better protect the negative reproductive rights of their female citizens, therefore making them less vulnerable to exploitation. Although feminist activist, Janice Raymond, considers gestational, commercial surrogacy to be a form of trafficking due to the commodity that is tied to the process, surrogates should be compensated for dedicating 9 months of their body to the process and gestation. Surrogates should be recognized for their amazing services, giving the gift of life without experiencing exploitation. There must be a certain standard or basis of regulation that levels the playing field for all parties involved. In addition, these implementations and posed solutions can only be so effective unless there is a willingness and open mindedness to recognize that the “norm” of the family dynamic is changing. Although these values seem to be deeply ingrained within society, is there a way to change these pre-existing norms?

Zammataro-Works-Cited

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