The global trade in babies born through commercial surrogacy is slowly being shut down. India, Nepal, Thailand and Mexico have introduced measures that would limit or ban foreigners from hiring locals as surrogate mothers. Cambodia and Malaysia look likely to follow suit.
In an industry in which the conventional wisdom has long dismissed efforts to “buck the market”, this is a surprising — and welcome — development. Uncritical proponents of biotechnology tend to celebrate the fact that technological breakthroughs have outpaced government regulations, arguing that this has allowed science to progress unfettered. But the determination of countries that have historically been centres of commercial surrogacy to stop the practice underscores the naivete of that position.
It is no coincidence that the countries cracking down on cross-border surrogacy are those in which the practice takes place. The argument that all parties — surrogate mothers, babies and commissioning parents — benefit from the transaction has not withstood scrutiny.
Consider India, where the surrogacy industry is valued at US$400 million (about 14.2 billion baht) per year; until recently, some 3,000 fertility clinics were operating. As worries have mounted that commercial surrogacy leads to human trafficking and the exploitation of women, India’s authorities have concluded that the ethical concerns outweigh the economic benefits.
India has yet to finalise its anti-surrogacy legislation. But the way the debate has evolved since the first bill was proposed in 2008 illustrates the rapid change in how the practice is viewed. The earliest drafts of the legislation actually encouraged commercial surrogacy, mandating that mothers employed as surrogates surrender their babies. Given that under common law, the woman who bears a child is legally its mother, this provision would have been radically pro-surrogacy.
Since then, however, the focus of the discussion has shifted, as unsavory — and sometimes bizarre — aspects of the trade have come to light. For example, in one case, Germany — where surrogacy is illegal — refused to accept twin children of a German father born to an Indian surrogate, while India demurred at giving the father an exit visa so he could remove the children.
In October, India’s Ministry of Health and Family Welfare, under pressure from the country’s Supreme Court, declared that international commercial surrogacy was unconstitutional. The next month, the Department of Health Research banned the importation of embryos to be implanted into surrogate mothers, making the procedure nearly impossible.
To be sure, India is not the only country involved in cross-border surrogacy. Indeed, Indian regulations limiting surrogacy services to heterosexual couples who have been married for at least two years had already caused some of the trade to relocate, most notably to Thailand.
But here, too, attitudes have been shifting, especially after an Australian couple refused to take responsibility for a baby born through surrogacy who was diagnosed with Down’s syndrome. The couple did take the boy’s twin sister, however, making it clear that what they had paid for was not the “service” provided by the mother, but the children themselves — or rather, only the one who met their requirements. As a result, cross-border surrogacy is seen as akin to selling babies.
Last August, Thailand restricted surrogacy to couples in which at least one partner holds Thai nationality. Offences under the law are punishable by up to 10 years in prison — for the surrogate and commissioning parents alike. As in India, surrogacy touched a deep nerve in Thailand, where some see it as neo-colonialist exploitation, with babies as the raw commodities being extracted for the benefit of Westerners. “This law aims to stop Thai women’s wombs from becoming the world’s womb,” was how Wanlop Tankananurak, a member of the National Legislative Assembly, put it.
By November, about a dozen Indian and Thai clinics shifted operations to Phnom Penh. That might seem to support the argument that the trade can never be stamped out — only relocated. But so far, the number of clinics in Cambodia is small. And some reports indicate that Cambodia’s interior ministry intends to treat commercial surrogacy as human trafficking, with a potential prison sentence. There is the risk that the international clampdown will drive commercial surrogacy underground. But that risk underscores the need for clear and strict legislation. @ 2016 Project Syndicate
Donna Dickenson is Emeritus Professor of Medical Ethics and Humanities at the University of London.