Jonas Gratzer / LightRocket via Getty Images

Offshore babies: The murky world of transnational surrogacy

Laws are unable to keep up with the profitable business of using poor women to carry children for wealthier parents

The case of an Australian couple accused of abandoning their child with his Thai surrogate mother after discovering he had Down syndrome — and taking home his healthy twin — has turned global attention to the murky underworld of international surrogacy.

Such cases have raised ethical and legal dilemmas, which experts say are the inevitable consequences of an unregulated multibillion-dollar industry dependent on impoverished women in developing countries providing a “product” — a child — so desperately wanted by would-be parents in wealthier nations.

In Baby Gammy’s case, which made international headlines this month, the boy’s Australian parents are claiming that the Thai surrogate mother, Pattaramon Chanbua, refused to release the child into their custody and that they lacked the legal right to force her to do so. 

Pattaramon said she was not initially informed that the child had Down syndrome even though the doctors, the agency brokering the surrogacy arrangement and the child’s parents knew when she was four months pregnant.

She said the agency waited until the seventh month to ask her — at the couple's request — to abort the fetus, which she refused to do because she believed it would be a sin. Instead, she asked the agent for 40 percent more money. In the end, she said she was paid only half the agreed price.

Since then, Pattaramon has raised more than $200,000 through an online fundraising campaign initiated by an Australian charity, after heavy media coverage. Among the details that have emerged about the situation was that man reported to be the father of Gammy is a convicted child sex offender

Even before Gammy’s case entered the international spotlight, the legal challenges of transnational surrogacy prompted the Hague Conference on Private International Law, an intergovernmental organization, to begin investigating commercial surrogacy in 2011. Earlier this year, the organization issued a report with its findings and a set of recommendations for policymakers.

The report's findings are the subject of a three-day forum to be held this week at The Hague, where about 100 policymakers, scholars and activists from 27 countries will meet to discuss ways to improve international standards on commercial surrogacy.

Days after the Baby Gammy controversy erupted, another case emerged in Thailand, involving the discovery of nine surrogate babies who allegedly share one biological father, a 24-year old Japanese citizen. It remains unclear why the man chose to have so many children.

Another recent case involves an Australian couple convicted in a U.S. court in 2013 of making child pornography with a boy they adopted after paying a Russian woman $8,000 to be their surrogate in 2005.

But even in straightforward surrogacy arrangements, in which the would-be parents have unblemished records and the child goes to a loving home, the complexities of international surrogacy raise legal questions. Should a sperm donor be considered the legal parent? How does the law regard a mother who gives birth to a child who is genetically unrelated to her? Can a contract require a surrogate mother to submit to an abortion if the intending couple wishes? Is the child a citizen of the country where he or she was born or where the intending parents — the industry name for parents who seek a surrogate — reside?

All these considerations represent new frontiers in international law because existing laws simply don’t cross over into this area well. As one expert put it, paying a woman to carry someone else’s child “is not like renting out an apartment.”

No guarantees

A doctor from a clinic in New Delhi in 2012 holds a baby he helped develop.
Jonas Gratzer / LightRocket via Getty Images

The first surrogate baby arrived in the 1970s, and laws governing commercial surrogacy have since developed differently in every nation, meaning a child resulting from a surrogacy arrangement is not necessarily be recognized as a citizen of the parents’ country.

Some nations tightly restrict surrogacy or ban it outright, while others have no surrogacy laws and provide no oversight.

In the United States, some states forbid surrogacy contracts. Others, including California and Illinois, have regulations to help enforce agreements.

Some countries, including India and Thailand, have fairly lax regulations and are popular destinations for parents from developed countries such as Australia and Japan who are looking for affordable surrogate mothers. In India alone, about 3,000 clinics offer surrogacy services, according to Sama, a New Delhi organization working on women’s health issues.

Despite the proliferation of clinics, there is no international consensus on how to establish legal parentage in the context of surrogacy arrangements. This can leave children exposed to potential risks, including abuse and denial of citizenship. 

Establishing legal parentage is important because it is the gateway through which many of the obligations owed by adults to children flow, the Hague report said. Issues involved include the child’s immigration status and who has parental responsibility for the child.

A common scenario highlighted in the report involves a case in which a child is unable to leave state A, where he or she was born, for state B, the intending parents’ home country, because state B does not recognize commercial surrogacy — as is the case in Australia. As a result, state B considers the surrogate mother and her husband the child’s legal parents. 

The child is thus effectively stateless, leaving him and possibly the intending parents stranded in state A. In some cases, diplomatic solutions have been negotiated between the countries, including state A issuing a one-time transit visa to enable the child to travel to state B.

This process, however, can be time-consuming and inconvenient for families. In one case cited by the report, children and their father were stranded in India for more than two years.

The report said such cases demonstrate the importance of multilateral rules determining the child’s legal status before conception.

Meaningful choice

Surrogate mothers wait for check-ups in Gujarat, India, in 2007.
Ajit Solanki / AP Photo

Supporters of commercial surrogacy usually distinguish between arrangements in developed versus developing countries. 

A full-term surrogate pregnancy in Thailand and India typically costs $63,000 to $72,300. In the U.S. it can run up to $226,000, according to the Hague report.

Experts say the profile of a typical surrogate mother in India and Thailand is an uneducated lower-income woman with a husband and children of her own. 

In India surrogacy contracts require the consent of the husband, typically a daily-wage worker whose income is insufficient to cover the family’s expenses, according to Sama. Women in developing countries can earn approximately 10 times their husband’s annual income for one surrogacy. 

When considering becoming a surrogate, women often talk about their financial struggles. In one case described in Sama's report, a woman said providing for her own children was her motivation: “The most important thing that came to my mind is that we have to educate our children.”

‘Women do this so they can afford a house with a toilet.’

France Winddance Twine

professor of sociology, University of California

France Winddance Twine, a professor of sociology at the University of California at Santa Barbara and the author of “Outsourcing the Womb,” said the issues should be viewed in the context of women’s not having financial support but being overvalued for their reproductive role. 

“It’s important to think of this as a rational choice within a very unequal labor market,” she said. “Women do this so they can afford a house with a toilet.”

Abby Lippman, a professor of epidemiology at McGill University, described surrogacy as a kind of biological colonialism. “Surrogacy is not a solution to poverty,” she said. “The international community has to address the structural inequalities that drive women to make these decisions in the first place.”

Melissa Brisman, a reproductive lawyer in New Jersey who is an intending parent, said that the circumstances surrounding the agreement in countries such as Thailand deprive a surrogate mother of meaningful choice. She and her husband opted for surrogacy in the United States.

“Some can’t read the contract because they are illiterate. In India they sign them with their fingerprint, often without independent representation,” she said. “Here the process is vetted by lawyers and psychologists so there is a complete understanding rather than it being based on desperation.”

‘Surrogacy is not a solution to poverty.’

Abby Lippman

professor of epidemiology, McGill University

Sama said surrogacy contracts in India are often written in English by lawyers hired by the commissioning parents or doctor, and go unread by the surrogate and her husband, who are simply told what is in the agreement.

The contract, according to the report, provides some “security for the commissioning parents, while the surrogates have none, with no control or say in the matter.”

Invisible mothers

An Indian surrogate in Mumbai in 2012.
Jonas Gratzer / LightRocket via Getty Images

Sharmila Rudrappa, a sociologist who specializes in gender and immigration issues, said that being a surrogate can be a dehumanizing process. In contrast to the closely monitored pregnancy, the health of the surrogate mother post-pregnancy is not a priority. “If they needed medical attention at that point, they would be charged,” Rudrappa said. 

Commodifying women’s reproductive systems comes at a human cost, Lippman said. “She’s paid for services she has rendered in growing that baby. In that sense, she has a major impact on the baby that is born, yet she is treated as having a minimal — if any — role during the process,” Lippman said. “There’s no dignity in the exchange.”

Brisman contrasts that with her experience as an intending parent in the United States. “I was in the delivery room when she gave birth. I went with her to ultrasounds. I communicated with her often,” she said. “It was a much more personal process. I wasn’t just invested in the results.”

Jennifer Lahl, president of the Center for Bioethics and Culture, a California nonprofit organization that focuses on third-party reproduction issues, said she recently attended a surrogacy conference in which lawyers and brokers referred to surrogate mothers as “carriers.”

Lahl believes that surrogacy should be outlawed entirely and said it is naive to think that the industry can be regulated.

But Brisman said the process does not have to be exploitative, adding, “More regulation is needed to protect everyone, including the intending parents.”

This is one reason organizations working to confront abuses stemming from commercial surrogacy are shifting their attention to the intending parents.

Ayesha Chatterjee, program manager for nonprofit organization Our Bodies, Ourselves, has been collaborating with Sama to collect information that will be used to educate intending parents on the risks faced by surrogate mothers in developing countries.

“Our goal will be to fill in those gaps created by a profit-driven industry … If you look at these websites promoting commercial surrogacy, there is very little information about the surrogate mother,” she said. “All we see is an image of pregnant bellies.”

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