Surrogacy: Time for a self-sufficiency approach?

Commercial surrogacy—where a woman is paid to carry a child she will then relinquish—remains highly controversial. An industry plagued by fears of commodification and exploitation, it is prohibited in every EU Member State. Yet no matter how reasonable this may seem in theory, the reality is that surrogacy remains a thriving business in which European citizens participate. Prohibitive legislation has consistently failed to protect the vulnerable parties involved. The COVID-19 crisis sharply illustrated these failings, stranding babies in their birth countries and leaving surrogates and intended parents in uncertain limbo.

I would argue that in order to prevent these types of crises in the future, and to better protect individuals participating in surrogacy arrangements, states ought to take another look at the business and start regulating it through a self-sufficiency model. This would mean a major change to the landscape of European surrogacy, with states permitting and regulating the industry domestically. The overall goal would be to discourage transnational arrangements – the source of many of the challenges surrogacy has faced.

A global industry

It is increasingly recognised that the surrogacy industry is not going away. Those experiencing infertility are highly motivated to get a child. Given the accessibility of the technology, legal prohibition is an ineffective deterrent, and has simply led to a rise in ‘fertility tourism’, or ‘outsourcing’: commissioning parents travel abroad to hire their surrogate, and then bring the child back to the prohibitive state.

The private international law issues that this has generated are widely documented. Children born to surrogates abroad have been left legally parentless and without citizenship on their return to prohibitive states that have refused to recognise their civil status. In the European context, the ECHR has found this to be a violation of the child’s right to respect for private and family life, and states are thus de facto compelled into ad hoc recognition of these arrangements. Yet there are some situations that even this court cannot remedy—an international pandemic, for example.

The COVID-19 challenge

Whilst much of the world may have stopped during the lockdown, pregnancy and childbirth did not. As a result, many parents who had commissioned surrogate mothers were and remain unable to travel to their new-born children. For the intended parents, what ought to be a time of joy and excitement has become a source of even more anxiety and pain. Things are arguably even worse for the surrogates and children. Some surrogates were left to care for the child themselves, a strongly discouraged practice that makes later separation harder for both surrogate and baby. The alternative, however, was to leave babies in institutional care. Ukrainian footage showed that though they were being looked after, with around 50 infants sharing the same dormitory it is difficult to imagine they received adequate attention. It is known that these early stages are critical to a child’s development; absence of early interaction sets them up for a lifetime of problems with building and maintaining social relationships. Yet for as long as they are separated from a primary caregiver, they are deprived of this.

Time for a self-sufficiency approach?

Regardless of one’s feelings about surrogacy, this situation of stranded babies has elicited a significant degree of sympathy for all those involved. Beyond the short-term challenges for those in the industry, it also naturally leads to questions as to what—if anything—might be done to better manage surrogacy in the future. Allowing this industry to continue in the shadow of the law is tantamount to turning a blind eye to the human rights of surrogate babies, but also surrogate mothers and intended parents. More and more, therefore, discussion has turned to how the fears underpinning current European prohibitions on surrogacy might be mitigated instead through regulation.

Though understandably many have called for an international treaty, work by the Hague Conference in this regard has been slow. A second strand of academic literature, therefore, has proposed an alternative: a self-sufficiency model. Rather than allowing the export of surrogacy to more permissive countries, states should legalise domestic surrogacy. This would mean assuming responsibility for setting standards that allow the industry to operate fairly and ethically. Families could continue to grow with surrogacy, but without the risk of harm.

This solution offers a range of potential benefits. In addition to resolving private international law issues, it might also reduce the exploitation of surrogate mothers. There is no denying the fact that destination countries are often those where women suffer systemic disadvantages, and may offer surrogacy services out of desperation. These women are more likely to accept disproportionately burdensome obligations without contesting the terms of their agreements. In effect, these women are put at risk by the same European states that purport to protect their own female citizens—a strategy that is both hypocritical and counterproductive. Finally, domestic arrangements would make it easier for commissioning parents to reach the surrogate and child quickly in case of emergency, a lacuna clearly illustrated by the COVID-19 crisis.

While arguments promoting the regulation of surrogacy through an international framework often overshadow those in favour of a self-sufficiency approach, the pandemic has perfectly illustrated the merits of the latter. In many sectors, the COVID-19 crisis has forced reassessment of responsibilities at both the individual and state levels. Here, it should be used by states as a catalyst towards considering adopting a more independently proactive stance on surrogacy. Whilst such a dramatic closure of borders may have been unprecedented, the reality is that this is far from the first time commissioning parents have been hit with sudden, unexpected disaster because restrictive domestic laws forced them abroad. 2016 saw the Israeli government airlift 26 new-borns from Nepal after an earthquake there; in 2014 sudden changes to surrogacy laws following a Thai military coup left many commissioning parents in limbo. Though European member states clearly are not immune from unpredictability or instability, it is unavoidably easier to deal with such crises when they are solely internal rather than reliant on international cooperation, unpredictable governmental decisions, or even flight availability. Surrogacy has the potential to bring great joy to families—but the lack of domestic regulation leaves them dramatically vulnerable to unexpected contingencies that could cause equally great harm. In light of the difficulties the COVID-19 pandemic brought to light for surrogate contracts, it is now time for Europe to seriously consider self-sufficiency as a strategy to protect the women, children and families involved.

Sylvie Armstrong is a Ph.D. Researcher in Law at the European University Institute. Her research considers whether labour law can be used as a means of regulating commercial surrogacy, exploring themes such as reproductive justice and the rise of atypical employment. Find her on Twitter @s_armstrong97