For many couples, giving birth to a child is the culmination of their relationship. Parenthood is an integral part of the human experience, and when would-be parents find themselves, for one reason or another, unable to conceive, the options are limited. Adoption is an excellent choice, but the hoops through which aspiring parents must jump are often extensive and the process can last for years. Furthermore, the idea of bringing a genetically-related child into the world is a high priority for some.[1] Even if genetics aren’t important, some prospective parents want to know that the child will be carried by a woman who has access to high-quality prenatal care and a family history that doesn’t include drug abuse or mental illness.
In these situations, many turn to an option that is growing in popularity, surrogacy. A surrogate is a woman who carries a child for a person or a couple who desires to have a child but for any variety of reasons, is unable or unwilling to do so. A traditional surrogate uses her own egg, whereas a gestational surrogate will achieve pregnancy through in-vitro fertilization with an already-fertilized egg.[2] In the United States, the costs of surrogacy can range anywhere from $40,000 to $140,000, making it an expensive option.[3] Surrogacy may sound like an ideal solution for parents unable to conceive, providing all the benefits of a typical pregnancy, but this option is not without its own unique and confounding issues.
One of the issues behind surrogacy contracts is the idea that the parties are contracting for a human life. Some view this as commercializing the birth of a child, making the whole process particularly unpalatable. Even overlooking the idea that the practice may commodify a woman’s body and a child’s life, there are problems concerning what happens if, after the parties make a contract, the surrogate does not want to relinquish the baby. The parties make the initial contract before the surrogate becomes pregnant and it is not unheard of for the surrogate to decide not to give the baby up after giving birth.[4] In the United States, there is no singular approach taken with regard to surrogacy regulation. Many states do not have any particular laws regulating surrogacy, while others completely ban the practice.[5] Still others allow enforcement of certain types of surrogacy contracts while refusing to enforce other types.[6] In California for example, the courts have held that they will enforce gestational surrogacy contracts (where the surrogate is not genetically related to the child).[7]
For some, looking to other countries for a less costly or less heavily-regulated surrogate is an appealing alternative. Termed “medical tourism,” the practice of traveling to a different country for a medical procedure is an increasingly popular practice.[8] In particular, many turn to countries like India, where the costs are low and the regulations are limited or nonexistent.[9] Many object strenuously to this solution because the potential for abuse of surrogates seems to increase at an alarming rate in countries where regulations are lax. The possibility of exploitation of women in these situations is extremely high and accusations of human rights violations continue to pour in.[10] As the practice of surrogacy increases, without significant efforts to provide both domestic and international regulations, this already muddled situation is only going to get worse.
Notes:
[1] See Shannon Philpott, Weighing the Options Between Adoption and Surrogacy, Mom.me (May 15, 2013), https://mom.me/kids/7325-weighing-options-between-adoption-and-surrogacy/ [https://perma.cc/SFG3-GPAS].
[2] See Nicole F. Bromfield and Karen Smith Rotabi, Global Surrogacy, Exploitation, Human Rights and International Private Law: A Pragmatic Stance and Policy Recommendations SpringerLink (July 1, 2014), http://link.springer.com/article/10.1007/s40609-014-0019-4 [https://perma.cc/2QQ2-W8LU].
[3] See id.
[4] See The Ethical Issues of Surrogacy, Modern Family Surrogacy Center (last visited Oct. 15, 2016), http://www.modernfamilysurrogacy.com/page/surrogacy_ethical_issues [https://perma.cc/7KTQ-QCXV].
[5] See U.S. Surrogacy Law By State, The Surrogacy Experience (last visited Oct. 15, 2016), http://www.thesurrogacyexperience.com/surrogate-mothers/the-law/u-s-surrogacy-law-by-state/ [https://perma.cc/R8Z4-4K7Q].
[6] See id.
[7] See id.
[8] See Medical Tourism FAQ’s, Medical Tourism Association, (last visited Oct. 17, 2016), http://www.medicaltourismassociation.com/en/medical-tourism-faq-s.html [https://perma.cc/8KMA-MADA]
[9] See Bromfield, supra note 2.
[10] See id.