Why commercial surrogacy is little better than the sex trade

On April 3rd 2020, the Child-Parent Security Act (CPSA) passed in the New York Legislature, meaning that commercial or “compensated” surrogacy is now legal in the state of New York. Similar laws are in place in 46 other US states. “Compensated surrogacy will be legal in New York in February of 2021!” read the Circle Surrogacy’s jubilant advert. But to those who consider commercial surrogacy to be dangerous and exploitative, the CPSA has effectively sanctioned the pimping of pregnancy; as demand for surrogate mothers increases, so does the likelihood that women will be coerced into the arrangement by abusive husbands or boyfriends. Not to mention the associated health risks for the woman giving birth.

Gestational surrogacy is where the egg and a sperm (the embryo) are formed from material belonging to either “commissioning parents,” or from egg and sperm donors. The embryo is then transferred into a mother who carries the baby to term for the parents. The New York law allows for commercial gestational surrogacy in which the birth mother has not contributed any of her own genetic material and for commissioning parents to be named on the birth certificate. Under this law, if the birth mother changes her mind and wishes to keep the child, she will have no legal right to do so. It also requires that the baby produced from a surrogate pregnancy be born in New York, but not that the surrogate mother is a New York resident.

Traditional surrogacy (also known as partial surrogacy) involves the surrogate’s egg being fertilised with the sperm of the intended father. This remains illegal in NYC, a legacy of the 1986 Baby M case, where a surrogate mother refused to give up her baby and fled to Florida. She fought and lost a custody fight against the couple who had contracted to pay her $10,000 to bear the child. A task force was appointed in the wake of this case, resulting in traditional surrogacy and commercial surrogacy being banned in 1992. Traditional surrogacy remains against US law but the 2020 CPSA overturned the ban on commercial surrogacy in New York state.

The campaign to legalise surrogacy in New York is a decade old. Versions of the legislation were first introduced in 2012 and again in 2017. Intended parents, lawyers seeking to profit from dealing with surrogacy cases, and of course the clinics and agencies, all argued that because other states had legalised commercial surrogacy, New York should follow suit. Others argued it was discriminatory to “prevent gay couples from having the same right to fertility treatment as heterosexuals.” I heard from one lesbian couple in the US that they couldn’t agree on which one would carry the baby so they decided to “outsource the pregnancy.”

Commercial surrogacy is banned in the UK, but there are regular attempts by industry profiteers to introduce it. A number of UK couples and individuals travel to Ukraine where it is legal, but it is impossible to gage exact figures. In Ukraine, more than 2,000 children are born through surrogacy every year. The majority of “commissioning parents” are foreign, heterosexual couples. During Covid lockdown and the subsequent war, business continued and clinics merely “stored” the babies until intended parents were able to travel to collect them. Surrogate mothers continued to be sourced across the country and would give birth in collective housing facilities.

When did we start talking about the rights of people to have babies through surrogacy, rather than the rights of the birth mothers and all the babies produced through this method?

Feminists and other human rights organisations desperately tried to challenge this legislation. In November 2021, the Coalition against Trafficking in Women (CATW) wrote an open letter to the Special Rapporteur on the Sale and Sexual Exploitation of Children and the Office of the United Nations High Commissioner for Human Rights (OHCHR), advising that the new law could have a deeply detrimental effect on the health of both the surrogate mother and the baby. The 86 signatories of the letter included Gloria Steinem, and leaders of organisations dedicated to ending violence against women and human trafficking.

The letter warned of the risks of negative health consequences involved in commercial surrogacy, including premature births, cerebral palsy, epilepsy, hearing and vision loss, and myriad other chronic health challenges that are proving more common with surrogate than non-surrogate pregnancies, as well as the significant additional risks associated with women going through multiple surrogate pregnancies.

For the women that opt to become surrogate mothers, who are usually poor and often from marginalised backgrounds, it is primarily a way to earn money. Surrogates can receive between $42,000 and $75,000, with the price rising for carrying more than one embryo to increase the chances of the pregnancy holding, and, in some cases, to provide a discount on two (or more) babies being born at once rather than charging for separate pregnancies. There are also currently no laws in New York regulating the number of embryos that may be placed into a surrogate mother, leaving the surrogate at risk if too many are implanted. It isn’t just multiple births which increase the risk to the surrogates; the risk of a life-changing or life-ending complication rises with each pregnancy.

Taina Bien-Aimé, Executive Director of CATW and a founding member of Equality Now, worries about the risks to women. “How long will it be before a woman dies as a result of surrogacy in NY?” she tells me. “The law doesn’t require a registry of women who enter into surrogacy contracts or of surrogate mothers—they don’t exist as patients worthy of tracking. Many of the recorded deaths of surrogate mothers in the US only surface because their husbands organise online crowd-funding efforts to pay for their wives’ burial costs.”

Dee Gulati is Practice Director at Surrogacy4All, a “full surrogacy service,” that arranges everything from sourcing the egg donor and surrogate mother to organising the contract between the commissioning parents and the surrogate, legal parentage status and birth certificates. The clinic recruits potential surrogates and egg donors. The intended parents chose their egg donor based on looks, height, medical history and IQ level.

I meet with Gulati, along with his Surrogacy Program Coordinator Brenda Garcia, at Surrogacy4All on Fifth Avenue. The offices are inside an opulent building full of marble, antiques and huge bouquets of fresh flowers. Gulati, who also lobbied for legal commercial surrogacy, has many Indian egg donors to meet the demand of his New York-based Indian commissioning parents. “They want Indian eggs and white surrogates,” says Gulati. “They are afraid it [the child] might turn black if it is carried by a black surrogate.”

Gay male couples are increasingly accessing Gulati’s surrogacy services, as are HIV positive men using their own genetic material. “We send off the sperm to be washed!” says Gulati. But this process is not guaranteed to be safe, posing an extra danger both to the birth mother and the foetus, which is why surrogates are offered higher rates of pay in such circumstances. The women are playing a game of Russian roulette.

Gulati is delighted to tell me that anyone who can afford it can opt for Surrogacy4All’s services, including single, heterosexual men. “One of them, he’s a plumber. The guy was married, had two beautiful children, his wife decided one day that she was leaving and so she left with the kids and now he is all alone. He then elected to have one or two kids of his own, using a surrogate mother and an egg donor, so that when he gets his next wife or girlfriend, and she decides to leave, at least the kids stay with him.” This single man would have been able to select the sex of his children, Gulati tells me, for “a few thousand dollars more.”

Although commercial surrogacy can cost up to $200,000, there are ways to reduce costs, Gulati tells me. “What a smart person from Britain would do is ask us to arrange health insurance for them in the state of New York, which at $500 a month is not expensive. We set them up with the centre in New York, they create their embryos. So instead of spending $200,000 to create your embryos, you can do it for two months of insurance. This option is not available to everybody; there is currently a discrimination case being heard in New York, brought by a gay couple who claim discrimination, as their insurer exempts them from surrogacy cover due to a loophole.

Once the financial complications are dealt with, the embryos are created. Next, Gulati says, “you can either ship them to an overseas carrier, or better still, have Brenda find you a surrogate mother over here—Caucasian, Mexican, black, all kinds of choices.” I ask Gulati what he would say to those who believe that surrogacy is the exploitation of women. He tells me: “In India, the choice of the surrogate was either: she can be a surrogate and she can have a new roof on her hut. I’d rather carry the baby and have a new roof on my hut, so I’ll carry the baby and at least I’ll have somewhere to live.”

I meet Ralph, from NYC, who chose to have three children through surrogacy before the change in the law. In 2009, a surrogate from Maine carried twins on behalf of Ralph and his husband, and in 2012, a second surrogate gave birth to their third child in Minnesota. “Our first surrogate would have done it again,” he confided, “but she’d already had two kids of her own, carried twins and triplets as a surrogate, and her doctor said, ‘Don’t you dare give birth again.’” She was 40 at the time. The egg donor to the three children lives in Pennsylvania, and they have never met, instead communicating via the agency. “It’s a little awkward,” he adds. “We have done this intimate thing together but have never met.” It is important to Ralph, he explains, that he has answers when his children start to ask where they came from.

Ralph was obviously concerned about his children. I’m concerned about all children born to surrogates. None of the protections that reputable adoption agencies put in place before parents are approved such as criminal background checks, mandatory participation in adoptive parent preparation classes, assurance that the adoptive families are medically, financially and mentally stable and comprehensive home visits, are required. Although some surrogacy clinics may do these checks, there is no legal requirement for them.

Surrogacy is exploitation whether it is carried out for profit or altruism. The harm to surrogate mothers is well documented, especially now that former surrogates are speaking out about their experiences. The law should reflect this, and outlaw all formal surrogacy arrangements. The surrogates themselves—lured in by the promise of money, and by suggestions that surrogacy is altruistic, and they are “helping a family”—should never be criminalised, but the brokers and other profiteers should.

The buying and selling of women’s bodies for reproduction is supported by many on the left—a notable exception to their usual critique of capitalism. In fact, surrogacy in the US is celebrated and seen as little different to purchasing an airline ticket. The women in the system have no name, no voice, no identity. The state allows the trafficking of their reproductive system, with a high risk of maternal mortality, protecting only her right to be paid. The surrogacy trade is similar to the sex trafficking and mail-order bride industries—in that the female body, in one way or another, is the merchandise for sale.