International Approaches to Surrogacy Regulation

In his address to diplomats last month, Pope Francis condemned “so-called surrogate motherhood,” deeming the practice “a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother’s material needs.”

Surrogacy is an assisted reproductive process in which one person carries another’s biological child. The surrogate mother typically becomes pregnant through in vitro fertilization with the intended parents’ sperm and egg and is not genetically related to the child. Some surrogates enter agreements for purely altruistic purposes, but many are compensated financially by the intended parents.

Although the Pope’s statements may sound severe to some people in the United States, where surrogacy is practiced widely, citizens of other countries, such as Spain and Italy, where both commercialized and altruistic surrogacy are banned, might be more likely to share the Pope’s dismay. In 2018, a U.N. expert reported that surrogacy practices in some countries “amount to the sale of children.” In 2021, India passed a law prohibiting commercial and international surrogacy arrangements and barring most Indians from accessing the procedure.

Yet proponents of surrogacy argue that the practice is an important fertility treatment that makes parenthood possible for more people while allowing others to improve their economic conditions and gain access to education. Surrogacy’s defenders accuse its critics of overemphasizing outlier cases of abuse and denying women the right to make their own medical decisions.

With such discordant ethical stances on surrogacy, it is unsurprising that legislation around the world varies widely. No international legal framework directly regulates the practice.

The United States, home to a patchwork of state-level regulations, exemplifies the lack of consensus. Currently, Michigan lawmakers are advancing a bill that would legalize commercial surrogacy contracts in that state. Although Michigan is not the only U.S. state to prohibit surrogacy, it is the only jurisdiction that still criminalizes the practice. Despite efforts by the Uniform Law Commission to homogenize U.S. surrogacy regulations with bills modeled on the 2017 Uniform Parentage Act, only seven states have adopted substantially similar legislation.

Critics of surrogacy claim the practice is inherently exploitative because it commodifies the female body. These critics also contend that surrogacy violates children’s rights by potentially denying them knowledge about their own origins and turning them into objects for sale.

Meanwhile, proponents of surrogacy claim that these critics ignore the latest research on the practice, which reveals no adverse psychological consequences for surrogate mothers or the children they deliver, and underestimate the positive psychological rewards that surrogate mothers experience. This research, however, is largely limited to surrogacy participants in Western countries, leading some academics to call for a renewed focus on the economic injustices involved in surrogacy in the Global South.

Cross-border surrogacy, which occurs when residents of one country engage the surrogacy process in another, poses additional questions about statelessness and exploitation that have yet to be addressed by a cohesive international regulatory framework.

In this week’s Saturday Seminar, scholars examine the concerns and values motivating different perspectives on surrogacy and explore divergent international approaches to regulating the practice.

• ADF International legal practitioners Lois McLatchie and Jennifer Grace Lea argue in a recent white paper that the commercial surrogacy industry commodifies women and children for profit. McLatchie and Lea identify a pattern in which surrogacy agencies exploit women in one country until the abuse leads to legal prohibitions. The agencies then move to nearby countries and continue their practices, McLatchie and Lea explain. They argue that surrogacy leads to human rights violations, such as risk to the surrogate mother’s health and life, affronts to her dignity, and violations of the child’s right to a name and nationality. To combat these issues, McLatchie and Lea recommend that all nations follow countries such as Lithuania in condemning all forms of surrogacy.
• In an article in the Chicago Journal of International Law, Claudia Flores of Yale Law School argues that through surrogacy bans and restrictions, national governments have undermined international treaty obligations surrounding reproduction, autonomy, and non-discrimination rights. Flores observes that many countries that have banned surrogacy domestically often charge women who carry fetuses as part of surrogacy arrangements with human trafficking while ignoring, or even facilitating, their citizens’ use of surrogacy services in other countries where the practice is unregulated. The legitimate governmental interests motivating surrogacy restrictions can be addressed through improved domestic regulation and interstate cooperation, instead of outright bans, Flores contends. She argues that many restrictions are unjustified when weighed against the important reproductive rights at issue.
• Family law is ill-suited to meet the needs of individuals involved in commercial surrogacy, contends Sylvie Armstrong, formerly of the European University Institute, in an article in the UC Law SF Journal on Gender and Justice. Armstrong notes that although commercial surrogacy issues are often assumed to be matters of family law, other areas of law, such as labor, tort, or medical law, might better inform commercial surrogacy regulation. Armstrong acknowledges that it is unlikely that family law will lose its regulatory influence on the commercial surrogacy industry entirely, but she urges regulators to assess whether alternative approaches may yield improved regulatory outcomes for commercial surrogacy.
• In an article in the Yale Journal of Biology and Medicine, Yue Liu, Xuechang Xian, and Li Du of the University of Macau analyze Chinese social media users’ sentiments about surrogacy. Although the Chinese government prohibits medical institutions and personnel in China from providing surrogacy procedures, existing regulations do not punish other participants. Liu, Xian, and Du find that moral opposition to surrogacy often stems from concerns about commodifying and exploiting women. In addition, some social media users consider it unethical to circumvent Chinese legal restrictions by seeking cross-border surrogacy, Liu, Xian, and Du reveal. By contrast, they find that supporters of surrogacy recognize that it may be the only parenthood option for LGBTQ+ couples, older couples, and those with fertility problems.
• In a recent article in Critical Policy Studies, Jenny Gunnarsson Payne of Sweden’s Södertörn University and independent researcher Mika Handelsman-Nielsen characterize the absence of explicit surrogacy legislation in Sweden as a compromise between polarized constituent groups. The authors explain that although surrogacy-related treatments are not legal in Swedish healthcare, Swedish residents travel abroad for surrogacy with increasing frequency and visibility. Regulators, in turn, are addressing surrogacy agreements on an ad hoc basis using existing adoption statutes. To explain the state of affairs, Gunnarsson Payne and Handelsman-Nielsen point to ongoing public debate about how the rights of parents, women, children, and families should be defined and balanced in surrogacy regulations.
• In a recent briefing note, non-profits UNICEF and Child Identity Protection urge countries to implement laws and regulations to protect the rights of children born through surrogacy. UNICEF and Child Identity Protection stress that children born through surrogacy are at heightened risk of violations to their human rights, which include the rights to personal, ethnic, and national identity, and the right not to be sold. To mitigate these concerns, the organizations make specific policy recommendations to lawmakers. The organizations’ recommendations include increasing data collection on children born through surrogacy, adding legal protections to prevent statelessness of such children, prohibiting cross-border surrogacy agreements involving intended parents in states that ban surrogacy, and strengthening prohibitions on the sale and trafficking of children.