So you're having another woman's baby: economics and exploitation in gestational surrogacy.

• Author: McEwen, Angie Godwin

1. INTRODUCTION

   While placing a monetary value on a product or service seems natural in many areas of society, it presents new challenges when introduced into the reproductive arena.(1) Society has confronted a similar debate before. Life insurance was once viewed as a form of trafficking in human lives.(2) The acceptance of valuation in this and other areas represents a shift in cultural values that must now confront birthing arrangements.(3)

   The emergence of new reproductive technologies has ushered in new possibilities not only for women unable to bear children, but also for women willing to bear children for another, and for individuals interested in facilitating the introduction of these two groups for a profit. One product of this new technology, gestational surrogacy, has forced society to reconsider established notions about the beginning of life and the identity of the biological mother. In so doing, it has brought into question the ethics of paying women to bear children and the potential for exploiting surrogates through those payments. Faced with international gestational surrogacy arrangements and no corresponding policy to address them, the need for a comprehensive policy is exigent.

   Part II of this Note describes the role of gestational surrogacy within the framework of new reproductive technologies. In Part III, a discussion of the international response to gestational surrogacy highlights the domestic approaches various countries have taken to control surrogacy arrangements within their borders (and notes those countries having no policies at all). A review of the transnational challenges presented by gestational surrogacy follows in Part IV, which cites examples of multinational surrogacy arrangements and addresses arguments both for and against enforcing these arrangements. Part V suggests an international approach to regulating gestational surrogacy based on rights and principles set forth in existing conventions and declarations.

2. GESTATIONAL SURROGACY

   Surrogacy has long been an alternative for women unable to bear children.(4) Until recently, however, surrogacy never challenged the principle that a woman and the child to whom she gives birth share the same genetic material. Recent advances in reproductive technology shatter this traditional notion by making it possible for a woman to bear a child to whom she has no genetic link.(5) The modern contracts between surrogate mothers and commissioning parents have become a market-driven event that is much more complicated than simply bringing a new life into the world.(6)

   1. Possibilities Raised by New Reproductive Technologies

      Some believe that the motivation to become a parent and have biological children is one of the most fundamental desires of human beings.(7) For those unable to conceive, adoption traditionally has been the only alternative.(8) The lengthy process of adoption, combined with the shortage of children available to adopt, however, has made it less than the ideal solution.(9) Although the lack of children available for adoption may be one of the driving forces behind the increased interest in surrogacy, parents' desires for a genetic link with their children makes surrogacy attractive in its own right.(10) The erosion of traditional notions about the structure of the family and the strides in reproductive techniques also contribute to the popularity of surrogacy.(11)

      Recent advances in reproductive technology have afforded new opportunities to couples who have difficulty conceiving.(12) Means of assisted reproduction are used most frequently with couples who are infertile(13) or have difficulty conceiving or gestating a child, including women who have no uterus, have miscarried, or have conditions such as hypertension and diabetes that could be worsened by pregnancy.(14) Surrogacy also affords parenting opportunities to women who suffer from illnesses, such as phenylketonuria (PKU), or HIV or AIDS, that could damage the fetus either during gestation or the birthing process.(15) Less than twenty years ago, women facing such problems could either adopt a child or remain childless.(16) However, women now have the benefit of assistive techniques such as artificial insemination, in vitro fertilization, cryopreservation, and surrogacy.(17)

   2. What is Gestational Surrogacy?

      Surrogacy traces its origin back to Biblical times.(18) Sarah, who was barren, asked her husband, Abraham, to lie with her Egyptian handmaid, Hagar, so they could establish a family through her.(19) Likewise, when Rachel and Leah were unable to bear children, they gave their maids to their husbands to bear children for them.(20) These slave women gave birth to children for their mistresses involuntarily, receiving no payment for their efforts.(21) Some suggest that the role of the surrogate now, as in Biblical times, is still primarily occupied by women of color.(22)

      Although there are various types of surrogate mothers, all are women who bear a child for someone else.(23) As opposed to traditional or genetic surrogacy, in which a woman gives birth to a child formed from her own egg, gestational surrogacy involves a woman giving birth to a child formed from the fertilized egg of another woman.(24) In gestational surrogacy, a woman's own eggs are retrieved and fertilized with sperm in a laboratory, and the resulting embryos are implanted in the uterus of another woman who then bears the child.(25) In traditional surrogacy, then, the surrogate bears a child with a genetic link to only one of the donors, the husband,(26) while in gestational surrogacy, the surrogate bears a child genetically related to both donors.(27) Surrogacy can be motivated by either commercial or altruistic impulses.(28) While a commercial surrogate receives payment for donating her egg or gestating the fetus, an altruistic surrogate donates her egg or gestates the fetus as a gift.(29)

      Gestational surrogacy involves a written contract whereby the surrogate agrees to carry the fetus to term and give birth to the child, thereafter relinquishing her parental rights to the "commissioning" mother or couple.(30) The fee typically paid to a surrogate in the U.S. is ten thousand dollars,(31) in addition to payment for other expenses such as life and disability insurance, medical bills, maternity clothes, and transportation.(32) For those who use the services of a surrogacy brokerage agency in making their arrangements, the cost of participation is usually twenty thousand to thirty-five thousand dollars,(33) with some fees running more than fifty thousand dollars per child.(34) Despite the fact that these contracts describe the "service" the surrogate will perform, the commissioning individuals are typically required to pay only ten percent of the total fee if the surrogate does not provide them with a live infant from the pregnancy.(35)

      In return for this compensation, the surrogate is expected to meet certain obligations, usually relating to specific conduct both during and after pregnancy.(36) During pregnancy, the gestational surrogate usually agrees to include the intended parents in her obstetrical visits, to consider an abortion if fetal abnormalities are detected, and to allow the intended parents to be present during the delivery.(37) In addition, the agreement may require the gestational surrogate to refrain from smoking, consuming alcohol, or using unnecessary drugs during the pregnancy.(38) After pregnancy, gestational surrogacy contracts require the surrogate, as well as her husband if she is married, to surrender all parental rights to the child and to allow the intended parents to take custody of the child at birth.(39) To facilitate this transfer of custody, the agreement may require the surrogate to assist the intended parents, through the adoption process, in obtaining a birth certificate naming the intended parents as the legal parents if they are not so named on the birth certificate.(40)

      The typical traditional or genetic surrogate is a white woman between twenty-six and twenty-eight years old who is married and has had a prior pregnancy.(41) Fewer than thirty-five percent of those interested in serving as surrogates have attended college, and sixty-six percent earn an annual income of less than thirty thousand dollars.(42) The typical profile of those seeking to hire a surrogate is a white married person in his or her late thirties or early forties.(43) Most are more financially stable and better educated than the surrogates they hire, with approximately sixty-four percent of commissioning parents having a household income of over fifty thousand dollars--fifty-four percent having attended graduate school and another thirty-seven percent having attended college.(44)

      With the new developments in reproductive technologies that make gestational surrogacy possible, however, come an array of social, ethical, and legal dilemmas. Two concerns raised by gestational surrogacy are commercialization and exploitation. Commercialization is an opposition to a surrogacy arrangement in which the surrogate receives any type of compensation for her services.(45) Exploitation, in contrast, is the idea that women are forced into serving as surrogates because of their low economic status, or are paid too little for their services.(46)

3. INTERNATIONAL RESPONSE TO GESTATIONAL SURROGACY

   Regulation of surrogacy arrangements varies considerably from nation to nation, both in content and in quickness of response. While the United States has not adopted any national surrogacy legislation,(47) other nations have appointed task forces which have already completed extensive studies of the issue. Of these nationwide regulations, some reflect policies aimed at restricting surrogate arrangements(48) while others represent controlled endorsements of the practice and attempt to define its acceptable boundaries.(49)

   1. The United States

      In 1987, a United States court considered for the first time, in...