The Surrogate in Commercial Surrogacy: Legal and Ethical Considerations

Chapter 7
The Surrogate in Commercial Surrogacy: Legal and Ethical Considerations

Sonia Allan*

I. Introduction

Surrogacy is the term most often used to describe arrangements in which a woman who is, or is to become, pregnant agrees permanently to surrender the child(ren) born of that pregnancy to another person or couple (the commissioning persons(s)).¹ Surrogacy may be ‘altruistic’ (where the surrogate receives no payment or restricted reimbursement of ‘reasonable expenses’ associated with her pregnancy) or ‘commercial’ (where the surrogate is paid a fee beyond expenses and costs).² Over the past half century, as assisted reproductive technologies developed,³ and commercial surrogacy occurred in some jurisdictions, ethical and legal issues surrounding the practice were hotly debated.⁴ Early debate focused primarily upon whether commercial surrogacy commodifies women and children, and whether a surrogate should be required to relinquish the child should she change her mind. The majority of countries that chose to regulate on the matter, moved to prohibit commercial surrogacy, made surrogacy contracts void and unenforceable, and in some instances accepted altruistic arrangements subject to certain criteria being met.

In recent years, the debate has again been enlivened in the context of commissioning person(s) travelling overseas to enter commercial surrogacy arrangements in countries that either allow commercial surrogacy by law, or have no regulation.⁵ The focus of renewed discussion has been particularly on issues concerning how to determine legal parentage and citizenship of the resulting child in such circumstances. Some commentators have also called for more permissive laws than currently exist regarding commercial surrogacy.⁶ However, the issues raised by commercial surrogacy continue to be far more complex than resolving how to determine legal parentage and citizenship for children, and ‘fertility tourism’ by some people is not in itself reason to change laws. Ethical and legal issues continue to exist regarding whether commercial surrogacy commodifies women and children; and the social and financial pressures that may lead women to enter such agreements. In addition, the global surrogacy trade has made racial, cultural and social disparities more salient; exposed risks and realities regarding human trafficking; and made questions of autonomy and consent more pronounced. It is only by considering all such complexities that international and domestic regulation of commercial surrogacy can be decided. This chapter therefore adds to current discourse.

In doing so, I was asked to focus particularly upon the surrogate mother. However, it is not possible to speak meaningfully of the surrogate without reference to the child. The chapter therefore also raises some issues regarding the children born of such arrangements albeit not exploring them in depth.⁷ Other parties involved in surrogacy agreements are mentioned, as the discussion requires. Section II highlights the ethical and legal issues that continue in modern-day commercial surrogacy practice. Section III examines general approaches and trends in the current regulation of surrogacy agreements worldwide, and considers calls for an international convention on surrogacy. It is contended that, on balance, given the strong ethical quandaries that exist, and the reality that commercial surrogacy presents unacceptable risks for some women and children, prohibitions against commercial surrogacy are acceptable, in those countries that choose to have them. Beyond this, the difficulty in reaching global consensus is recognised. As such, recommendations are made in relation to minimum standards that might be included universally in domestic laws. The multilateral convention that has been proposed by some as a possible way to regulate current trans-national practices is also discussed. Suggestions are proffered with the view that laws that aim to prevent discrimination, exploitation and risk of serious harm, should be encouraged, and that such laws have advanced the position of women and children in other areas tremendously.⁸

II. Ethical and Legal Issues Pertaining to Surrogacy

A. Is the Surrogate Involved in the Sale or Commodification of Children?

There has been international recognition that the sale of children is ethically and morally repugnant as it counters principles of human dignity, respect for persons, and the common good. Legally, the sale of children is prohibited in many countries.⁹ The question for this section therefore, is whether the surrogate in commercial surrogacy arrangements is involved in the sale or commodification of children (whether or not she herself is also the subject of exploitation, coercion, or otherwise).

The question is particularly relevant as for decades there have existed ethical, policy and legal statements across the globe that commercial surrogacy commodifies the resulting child, and that this, in itself, is reason enough to deny the practice. For example, in 1984, the United Kingdom Warnock Committee¹⁰ said that ‘a [commercial] surrogacy agreement is degrading to the child who is to be the outcome of it, since, for all practical purposes the child will have been bought for money’.¹¹ In 1988, the New York State Task Force on Life and the Law in its public policy inquiry into surrogacy stated that ‘the exchange of money for possession or control of children … threatens to erode the way that society thinks about and values children, and by extension all human life’.¹² In Germany surrogacy continues to be treated both judicially and by statute as a form of illegal adoption that ‘violates the child’s and mother’s human dignity and reduces both to objects of commercial contracts’.¹³ In Australia, legislation exists in all states and the Australian Capital Territory, prohibiting commercial surrogacy,¹⁴ based upon ‘a deep discomfort with the commodification of children, women and reproductive services’ (amongst other things).¹⁵

In recent years, prohibitions concerning commercial surrogacy¹⁶ have also been listed by the Australian Government as being ‘an explicit prohibition of the sale of children’ pursuant to Australia’s obligations under the Optional Protocol to the United Nations Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OPCC).¹⁷ Such a view flows from the Convention on the Rights of the Child, which requires that States Parties take ‘all appropriate national, bilateral and multilateral measures to prevent the … sale of or traffic in children for any purpose or in any form’.¹⁸ Article 2 of the OPCC further defines the sale of children as ‘any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration’.¹⁹ Commercial surrogacy thus has been seen to fall within the definition of sale of a child as it is an act or transaction whereby a child is transferred by any person or group of persons (the surrogate, the clinics, the brokers) to another (the commissioning person(s)) for remuneration or any other consideration.²⁰

However, this view is not accepted by all. A number of arguments have been put forward that either discount or move away from issues of the sale or commodification of children by framing the surrogate’s relationship to the child in particular ways. For example, it has been argued that there is no sale or commodification involved in ‘gestational’ arrangements because of the lack of genetic relationship between surrogate and child.²¹ Larkey states that as the surrogate carries the genetic child of the commissioning person(s) and ‘has no biological connection to the child’, the surrogate is not the child’s ‘mother’ and therefore is ‘not in a position to sell what is not hers’.²² Rather, payment is proposed to be for services rendered by the surrogate in providing the commissioning person(s) ‘their’ child.

However, there exists a logical flaw in trying to distinguish gestational surrogacy from instances of traditional surrogacy, in which a genetic connection does subsist between the child and the mother. Larkey’s view is premised on the assumption that the child may be viewed as something that is ‘owned’ based upon who contributed the genetic material, the status of the surrogate as ‘gestational’, and the existence of an agreement (or in some jurisdictions a ‘contract’). The logical conclusion of such arguments is that in cases of traditional surrogacy (the comparator), the child would be the surrogate’s and therefore she would be in a position to sell what is hers – namely, the child. Surely the act in both instances is the same, and this is an odd distinction to draw.²³

Second, in cases of ‘gestational surrogacy’ to deny that any connection exists between the surrogate and child, or to define relationships (and or acceptability of practice) simply by focusing upon who contributed the gametes or embryo, is an over-simplification. Regardless of genetic connection, the gestational mother provides many biological resources during the pregnancy. As the pregnant woman breathes and feeds and her heart beats the child may grow, and is significantly affected (positively or negatively) by the biological environment in which it exists. During pregnancy, there is also a physical connection provided by the placenta, an organ built of cells from both the woman carrying the pregnancy and the foetus, which serves as a conduit for the exchange of nutrients, gases and wastes. Cells may additionally migrate through the placenta, and may have a broad range of impacts on mother and child, from tissue repair and cancer prevention to sparking immune disorders.²⁴ There are also significant physical and psychological changes that take place within a pregnant woman’s body that cause her to bond with, and connect to the baby as it grows in utero (and vice versa). It is therefore invalid to claim that ‘gestational’ commercial surrogacy resolves commodification issues²⁵ simply by denying a connection between the child and the surrogate mother.

Similarly, arguments that try to justify payment by suggesting we move beyond discussion of genetics and consider how the surrogate views herself, are unsatisfactory. For example, Millbank states:

a baby created via surrogacy is not the baby of the birth mother, not because of the operation of contracts, or genetic link to intended parent(s) combined with lack of genetic link to the surrogate; rather the baby is not hers because she says so and believes this to be so, before, during and after the pregnancy in which she gestates that child into life.²⁶

The claim follows that it is only ‘fair’ for the surrogate to be compensated (beyond reasonable expenses) for the burden she endures by conceiving (or having an embryo implanted in her), carrying the pregnancy and bearing a child that she does not view as her own.²⁷ The view is similar to that espoused in the United States two decades ago by Ragone, who emphasised ‘intentionality’ and ‘choice’ of the surrogate, and separated out the biological function of conception, pregnancy and birth with the social function of parenting.²⁸

However, views that the surrogate does not consider herself as a ‘mother’, is simply ‘renting out’ her womb,²⁹ providing her ‘services’,³⁰ or being paid a moderate sum for the burden she bears,³¹ do not satisfactorily resolve concerns about the sale or commodification of the child. Emphasis upon ‘choice’, ‘intent’, or a surrogate’s perception of self, have been seen by some as problematic,³² and as simply a way to circumvent laws that prohibit the sale of children.³³ The difficulty is that, no matter what language is used to describe the transaction (including whether we call the commercial aspect of it ‘payment’, ‘compensation’ or a ‘gift’), no matter what the viewed relationship of the woman called a ‘surrogate’ to the child, the literal interpretation of the law is the rendering of pregnancy and birth, and the delivery of a child to others for remuneration or other consideration, by definition, equates to sale or commodification.³⁴

It is also flawed to emphasise the surrogate’s view of self without considering the views of resulting offspring. For example, Smerdon quotes one nearly 18-year-old boy born as a result of commercial surrogacy who wrote:

How do you think we feel about being created specifically to be given away? … I don’t care why my parents or my mother did this. It looks to me like I was bought and sold … When you exchange something for [m]oney it is called a commodity. Babies are not commodities. Babies are human beings. How do you think this makes us feel to know that there was money exchanged for us? Because somewhere between the narcissistic, selfish or desperate need for a child and the desire to make a buck, everyone else’s needs and wants are put before the kids[’] needs. We the children become lost … .³⁵

Clearly, this statement reflects the offspring’s view that his birth mother was involved in his sale. Alternatively, the view of a 14-year-old girl is noted ‘ … it doesn’t really matter how I was born and that my mother didn’t actually carry me. But it does matter that I am here. I am born.’³⁶ Noting that research available on the long-term experience, views and outcomes for children is even more limited than that on surrogates (in fact, it is non-existent), the differing voices of the offspring are nevertheless poignant. While such voices may differ, that any child born of such arrangements might feel that they have been ‘bought’ and ‘sold’ is nothing short of alarming – and must be acknowledged when determining how to view commercial surrogacy and whether it is acceptable.

Finally, it is also relevant to consider commercial surrogacy in light of situations that have been said to most clearly illustrate the sale and or commodification of children. That is, while in many cases the commissioning person(s) may wish to procure a child that they will love and care for (and do appear to do so very well), the ability to procure a child by payment in commercial surrogacy arrangements, has given rise to clear examples of exploitation and abuse.³⁷ There have also been recent cases in which children have been abandoned, when they have not meet the expectations of the commissioning persons. In one such case, the Australian commissioning persons left a child with Down’s Syndrome behind, while taking his healthy sister, reportedly asking for their money to be refunded. In another case, an Australian couple, decided to keep only one twin based upon its gender, and to leave the other one behind.³⁸ Such instances form part of the ‘evidence base’ that commercial surrogacy involves the sale and/or commodification of children. Perhaps it is needless to say, that this is so whether or not the surrogate is a wholly autonomous and willing party to the transaction, or whether she is herself exploited in terms of the arrangement. In the latter instance, she could not be held morally culpable, but the nature of the transaction remains the same.

Of course, focusing upon whether the surrogate is involved in the sale or commodification of the child she bears is but one issue raised by commercial surrogacy transactions. What of the surrogate who, in the modern-day world of commercial surrogacy, is often subject to social or cultural imbalances, financial pressures and inequities, and in worse case scenarios human trafficking? She too is at risk. It is to these things that the discussion now turns.

B. Human Trafficking

There is no doubt that in the global commercial surrogacy market poor and vulnerable women have been trafficked for use as surrogates for the profit of agents or brokers. For example, in 2012, Rotabi and Bromfield, provided a stark comparison between inter-country adoption and commercial surrogacy in Guatemala,³⁹ highlighting that ‘in the global environment of assistive technology and the demand for babies … Guatemalan women are at risk of human sales of their offspring in global surrogacy schemes … ’. Drawing analogies to past practices in inter-country adoption rings, Rotabi and Bromfield noted schemes in which women (often teenage girls) were commonly called ‘breeders’, and were paid small amounts of money in exchange for their child by merchants.⁴⁰ The European Parliament’s Joint Motion for a Resolution on Guatemala, in July 2005, recognised such concerns. It stated that according to the Office of the Counsel for Human Rights, ‘the abuses occurring in Guatemala include forced or surrogate pregnancies, removal of children from their real mothers, substitution of documents, alteration of public records, and the existence of clandestine ‘nurseries’ … ’.⁴¹ The emerging practices of commercial surrogacy in such places clearly raise significant concerns about ‘human rights abuses, including human trafficking and violence against women’.⁴²

The example of Guatemala is not unique. Cases of human trafficking of women to work as surrogates have been reported for decades in other places. For example, in 1995, young Polish women were recruited to travel to Holland, Belgium and Germany to work (illegally in some cases) as surrogates.⁴³ In 2009, women from Myanmar were sold to Chinese men to work as surrogates. The women ‘had been lured to China in the hope of finding jobs’ but were instead paid $250 to act as surrogates.⁴⁴ In 2011, several Taiwanese, Chinese and Burmese people were arrested for allegedly running an illegal surrogacy ring in Thailand. In this instance, some of the 14 Vietnamese women being housed as surrogates, 7 of whom were pregnant, had been tricked or forced into the arrangements and, according to the Public Health Minister, some had been raped.⁴⁵ In the same year, three individuals in the United States were convicted of criminal charges relating to paying ‘surrogate’ mothers to be sent to the Ukraine for implantation with embryos, without any surrogacy arrangements in place. If the pregnancy continued into the second trimester, the unborn children were ‘sold’ to prospective parents under false representations that they were the result of legitimate surrogacy arrangements in which the original commissioning person(s) had ‘backed out’.⁴⁶ In 2013, the Bangladesh Country Report on combating human trafficking also mentioned surrogacy as a form of human trafficking in Bangladesh.⁴⁷ Such risks and practices are real, and continue into the modern day.

The above cases are extreme in that they include criminality and abuse, and provide a stark illustration of the risks commercial surrogacy may pose, in both the developing and developed world – including the danger that ‘agents’ or third parties may use and traffic women for profit. However, the risks associated with commercial surrogacy do not end there. Even in more ‘routine’ cases, there exists concern about the extent to which women engaged as surrogates are influenced by social and economic pressures, are able to give free and informed consent, and are exploited through racial and cultural inequities.

C. Social and Financial Pressures

As commercial surrogacy occurs in a variety of socially and economically different locations, social and financial pressures that may be faced by women who act as surrogates can take many and different forms; blanket statements are not possible. (Although it could confidently be said that very affluent women do not act as commercial surrogates).

In the developed world, few nations permit commercial transactions, and thus perhaps the most looked upon nation is the United States, in which some states have permitted such practices for some time. There, early studies suggested that women acting as commercial surrogates are ‘predominantly white, working class, of Protestant or Catholic background’ with 30% of them being ‘full-time homemakers, married, and with an average of three children’.⁴⁸ In 2005, Beckman and Ciccarelli reviewed twenty seven empirical studies conducted between January 1983 to December 2003 in the United States, and concluded that ‘surrogate mother’s’ family incomes are most often modest (as opposed to low) and they are from working class backgrounds’.⁴⁹ In 2007, Driabak et al. noted that the rhetoric in the United States that portrays the surrogate as a reasonably well-educated, financially stable woman motivated by altruism stands in contrast to reality.⁵⁰ Driabak found that sociological studies of surrogates conducted between 1997 and 2007 suggest that ‘financial motivation may be a primary factor in the decision to participate in surrogacy … [and], because of their financial status, commercial surrogates are susceptible to financial inducement and vulnerable to exploitation’.⁵¹

More recently reports from the United States indicate, that depending on the state, between 19% and 50% of women who act as commercial surrogates are military wives, with higher rates in larger states that have sizeable military establishments such as Texas and California. Lower earnings for military families (estimated to be at around $30,000 per year), having to look after children, and the absence of the husband who is serving overseas, may all influence engagement with commercial surrogacy, which may provide an extra $25,000-$30,000 to the family.⁵²

In the United States (as with practices elsewhere), given the high costs of surrogacy and the fact that they do not usually have children yet, it is unsurprising to find that the commissioning persons are older, generally more educated and had higher incomes than surrogate mothers and their partners.

In regions and countries where poverty is more pronounced, the disparities are even greater. For example, in a study conducted in 2012, by the Center for Social Research (CSR) in India, in which over 100 surrogates, as well as their families, commissioning person(s), clinics, agents, and other stakeholders, were interviewed, the overwhelming majority of surrogates indicated that they had decided to become a surrogate due to ‘poverty’.⁵³ The study found a system rife with problems and inequalities.⁵⁴ Concerns were raised about pressure from others (for example, brokers and/or husbands) for women to become surrogates as they may earn many times their husband’s yearly income for one surrogacy (noting, that this does not mean that women are paid well). In addition, the CSR study also highlighted a lack of transparency regarding the fees paid to surrogates and disparity between what the commissioning person(s) believe the surrogate is paid and what she is actually paid.⁵⁵ The CSR report concluded that ‘in reality the contract between the parties to surrogacy would not exist if the parties were equal’.⁵⁶

It has thus long since been an issue that commissioning persons from relatively affluent economic backgrounds may intentionally, or unintentionally, take advantage of indigent women by offering a sum of money that such women desperately need and will not be able to refuse.⁵⁷

Such social and class issues are not limited, however, to financial disparities; they impact upon the way in which surrogacy agreements (‘contracts’) are negotiated, and are reflected in the racial and cultural disparities rife in such transactions. Such concerns have been raised in relation to all regions in which commercial surrogacy is occurring, including, but not limited to, Ukraine, Russia, India, Guatemala, and some American states.⁵⁸

D. Commercial Surrogacy Agreements: Reduced Bargaining Power and Lack of Informed Consent

Concerns have also been raised about women being able to properly protect their interests, or give free and voluntary informed consent to act as a surrogate mother, when dealing with those that organise commercial surrogacy.⁵⁹ As a large and organised market, there is drive (and techniques) to ensure that the majority of profits are directed to agencies, clinics, lawyers, and intermediaries, while ensuring there are enough women to meet demand. In such circumstances, potential surrogates who are in need of finance (and commissioning persons experiencing the anguish of infertility or childlessness) may have diminished bargaining power when dealing with people who work in, and profit greatly from, the commercial surrogacy industry.

For example, within the commercial surrogacy industry, there is much emphasis upon surrogates acting to ‘help’ others and being ‘giving’ women, motivated ultimately by altruism⁶⁰ rather than financial need or gain. This in turn, may be used to reduce the fee paid to the surrogate to ensure that the total cost to the commissioning persons is not prohibitive, while women who act as surrogates are encouraged to report that money is not their primary motivation.⁶¹

Potential surrogates may, in some cases, also lack independent representation and therefore be more vulnerable to manipulation (by a broker/agent, the assisted reproductive clinic, or the commissioning person(s)) regarding not only price, but also the terms of the contract, including that the surrogate bears most of the risks.⁶² For example, in the above-mentioned CSR study conducted in India, it was found that surrogates were often illiterate and relied on clinics to inform them of the terms of the contract, without independent advice. When asked, surrogates could not explain or recall many of the terms of the contract they had entered into. Contracts were often not signed until mid-way through the fourth month of a pregnancy meaning the surrogates would bear all risks and losses if the pregnancy miscarried or was aborted due to foetal abnormalities. Clinics often were not party to the contract, allegedly to avoid accountability.

When commercial surrogacy does not require women to have experienced previous pregnancy and birth other issues regarding free and informed consent may arise. A potential surrogate may enter an agreement due to the offer of, what is to her is a large sum of money, without understanding the physical or psychological effects of acting as a surrogate.⁶³ Walker suggests that women who have not previously borne children could never really give informed consent to participate in a surrogacy agreement as they will not be able to predict the bond they may feel with the child.⁶⁴

However nor does a requirement for previous births resolve the issues. All women are exposed to risks that include a higher maternal morbidity and mortality rate for women who use other women’s eggs.⁶⁵ Each pregnancy is different, and having had a previous child does not mean one can predict risks of future pregnancies. There is also often the potential of placing the surrogate mother in a situation where the baby’s life may be given priority over hers should complications arise.

A recent European Parliament study into surrogacy practices also noted that the autonomy of the surrogate mother can be compromised throughout the process by her being required by the commissioning person(s) and/or physicians to undergo sampling tests, amniocentesis or vaginal ultra-sound, to change her diet or lifestyle, and or to terminate the pregnancy in case of a defective foetus or multiples.⁶⁶ Women who have entered surrogacy agreements due to a need to support their already existing children, or because of significant financial need, may be particularly vulnerable to such pressures. For example, they may be concerned about their ability to meet their current family’s needs if told they will not be paid, or that they will be left with another child. In such circumstances it may be extremely difficult to exercise autonomy and choice. In the above mentioned case in which an Australian couple abandoned a child with Down’s Syndrome, the ‘surrogate’ mother was told to abort. When she refused due to religious beliefs, she was left with the child, who she loved and cared for, in dire circumstances. Many women may not have been able to do even this.

E. Autonomy and Free Choice

However, some argue that perpetuating the idea that women who wish to act as surrogate mothers are unable to ‘contract’ (or make agreements) freely is paternalistic.⁶⁷ Andrews and Elster state that it is ‘paternalistic to assume that individuals choosing to be donors or surrogates are incapable of making rational, informed choices’.⁶⁸ They cite Richard Arneson who contends that ‘the thought that commercial surrogacy should be banned because the poor working women who mostly choose surrogacy are too incompetent to be entrusted to make their own decisions in this sphere has an ugly, elitist sound’.⁶⁹ Andrews and Elster argue that ‘such paternalism and elitism may do more to devalue, degrade, and exploit women than would payment for their reproductive products and services’.⁷⁰ Arneson argues that provided no harm is done to others, prospective parents and potential surrogates should be free to act (and contract) as they wish.⁷¹ The emphasis should be upon the autonomy and free choice of those parties,⁷² and upon arguments that surrogates and commissioning persons are satisfied and enriched by the process.⁷³

Similarly, it has also been questioned whether the fact that a surrogate’s decision being influenced by financial need is enough to discount the practice of commercial surrogacy as unacceptable. Pande, for example, quotes the realities of one 25-year-old housewife’s ‘compulsion’ to become a surrogate:

Who would choose to do this? I have had a lifetime’s worth of injections pumped into me. Some big ones in my hips hurt so much. In the beginning, I had almost 20–25 pills almost every day. I feel bloated all the time. But I know I have to do this for my children’s future … This is not work, this is majboori [a compulsion]. Where we are now, it can’t possibly get any worse … In our village we don’t have a hut to live in or crops in our farm. The work is not ethical, it’s just something we have to do to survive. When we heard of this surrogacy business, we didn’t have clothes to wear after the rain … and our house had fallen down. What were we to do?⁷⁴

Such compulsion is not viewed as leading the woman to be unable to make independent decisions. Some argue therefore that she is simply doing what she must, and what she accepts. Pande has thus referred to the labour as equivalent to a woman choosing to do sex-work, in need of the same protections and regulation.

However, arguments such as those made by Andrews, Elster and Arneson (and others) concerning a woman’s ‘freedom’ appear to ignore that in many circumstances such freedom is constrained by poverty, unequal bargaining power, and social and cultural circumstances and pressures – all of which may manifest themselves in unacceptable ways in both developed and developing countries. The ‘ugly elitism’ to which Andrews and Elster refer arguably does not exist in calling for laws that support women and children, but rather exists in the financial and racial disparities, and or cultural exploitation, found in many such arrangements.

Rimm observes that the global surrogacy market ‘adds another dimension to the already grim picture that surrounds modern global commercial surrogacy, by introducing the prospect of unacceptable racial distinctions between the commissioning and the commissioned parties’.⁷⁵ She argues that international surrogacy is ‘especially problematic when performed at ‘bargain prices’ for wealthy foreigners because it promotes the racist and imperialist view that it is acceptable to exploit and dehumanize women of different origins’.⁷⁶ Perhaps speaking loudly to this are recent changes to Thailand’s laws, which now prohibit commercial surrogacy, and restrict altruistic arrangements to being made by Thai nationals.⁷⁷ A member of Thailand’s National Legislative Assembly has been quoted as saying, ‘This law aims to stop Thai women’s wombs from becoming the world’s womb’.⁷⁸ This speaks not only to the cultural, racial, social and economic disparities that were so clearly pronounced, but also to broader perspectives concerning how, within society, women should (and should not) be viewed.

It is apt here to conclude this section by also returning to issues that may arise for children in such circumstances. In many of the above described circumstances, there continues to be concerns about commodification; access for trafficking or abuse; as well as a child’s right to access to information, and connect with siblings, donors and birth mothers. There may also be potential impacts upon the children a ‘surrogate’ mother already has, as they witness their mother carry a pregnancy and then hand the child to others to parent, in exchange for money.⁷⁹ These added complexities all exist in the global market, regardless of freedom, autonomy or choice.

III. Approaches to the Regulation of Surrogacy