Some believe the business of surrogacy commodifies women. Does everyone have the right to a biological baby or does surrogacy violate the rights of the child?
3D image of a human fetus inside a womb. (Credit: digitalgenetics/Getty images)
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Baden Colt caught her newborn daughter, Scottie, in a Toronto delivery room as her surrogate, Ashley, pushed the baby girl out of her womb.
Colt, who has epilepsy, always knew she’d need help to create her own family. Her anti-epilepsy medication can cause openings in a baby’s spine if taken during pregnancy.
For years, Colt and her husband set aside money so they could pay for expensive in vitro fertilization (IVF) of his sperm and her egg, which costs about $20,000 a round, and to reimburse the surrogate who would carry their lab-conceived baby for them.
Colt, who writes the blog Not My Tummy, has just gone through a second round of IVF hoping for a sibling for Scottie, now 19 months old. A fertility clinic is testing her embryos for chromosomal abnormalities that can cause miscarriage and for a gene mutation that causes the breast cancer that runs in her family. These tests cost another $11,000.
Colt hoped that Ashley, whose family has grown close to hers, could carry her second pregnancy too. But now isn’t the right time for Ashley to embark on another surrogacy. Colt must find someone else to grow her baby for her. She sees surrogacy not as a medical answer to a medical problem but “a human-based solution to … a deep challenge” that couples face.
The business of birthing
Surrogacy is on the rise around the world. By using technology to implant an embryo into a fertile woman who is not the baby’s genetic mother, a growing number of infertile opposite- and same-sex couples can finally build a semi-genetic family of their own. Surrogacy allows desperate people to become joyful parents.
An international group of lawyers, psychologists and doctors concerned about the rights of women wrote the Casablanca Declaration of 2023, which denounces surrogacy as a violation of human dignity and the commodification of women and children. This group calls for the complete abolition of surrogacy around the globe.
Kallie Fell, a labour and delivery nurse who runs The Center for Bioethics and Culture Network in California, agrees with the declaration. She says surrogacy favours the natural desire for parenthood over the protection of women who are harmed by carrying genetically-unrelated babies, and the well-being of the babies they must give up at birth.
Infertility is the failure to achieve a clinical pregnancy after 12 months of regular, unprotected sexual intercourse. According to the World Health Organization, around 17.5% of the world’s adult population cannot become parents naturally and those cases cross the socioeconomic spectrum.
As Dr. Tedros Adhanom Ghebreyesus, director-general of the World Health Organization put it in an April 2023 report: “Infertility does not discriminate.”
Where the practice is banned
Italy, where surrogacy has been illegal since 2004, made news last fall when it called surrogacy a “universal crime” and banned its citizens from travelling abroad to find and pay foreign women to carry their babies.
Germany and France also prohibit domestic surrogacy. In Mexico and some U.S. states, including California, commercial surrogacy, in which intended parents pay women to carry babies unrelated to them, is legal.
Canada allows only altruistic surrogacy. This means that Baden Colt could not pay Ashley for carrying her baby. Canadian surrogates can only be reimbursed for their reasonable pregnancy expenses, such as maternity clothes and extra groceries.
Fell calls the global surrogacy business “Big Fertility.” It’s worth US$14 billion and will grow to US$129 billion by the year 2032, according to Global Market Insights. The vast industry includes drug companies, fertility doctors, fertility lawyers and unregulated surrogacy agencies that act as middlemen between intended parents and their surrogates.
“Bravo to Italy,” says Fell, who hosts the infertility podcast “Venus Rising” and sympathizes with grieving couples who can’t conceive on their own. But she says the Italian law is the only way to protect children from what she calls “reproductive tourism and trafficking.”
Whose business is it?
Colt doesn’t think surrogacy exploits women. She says no one should police women’s decisions. She calls altruistic surrogacy a woman’s choice and a woman might prefer compensation.
“I don’t think that makes it commodification,” she said.
Quebec-based Ghislaine Gendron is the Canadian co-ordinator of the feminist organization Women’s Declaration International. She also wants an outright ban on surrogacy.
Regulating it doesn’t solve any problems, she says. She disagrees that surrogacy honours women’s reproductive rights. Gendron argues that when women say, “I do whatever I want with my body,” the opposite is true.
She insists that women give up their rights when they sign surrogacy contracts that dictate what they eat, where they travel and even with whom they can have sex.
Desperate people become joyful parents.
Sally Rhoads-Heinrich was a passionate surrogate 25 years ago. “What’s nine months to help someone have a baby?” she asks.
She runs the agency Surrogacy in Canada Online. She agrees surrogates in developing countries are exploited but calls the Canadian altruistic system unfair, too. Rhoads-Heinrich says it’s too financially risky to be a surrogate. With only one surrogate for every 100 prospective couples, she says the shortage of Canadian surrogate mothers could be solved by paying them for their trouble.
Gendron also sees surrogacy as an enterprise. She calls commissioning parents “clients” who contract with surrogates to produce a baby. These clients must pay legal fees, doctors’ fees for IVF, embryo testing and transfers, and even the cost of medical care in countries without government-funded healthcare.
These costs can add up to hundreds of thousands of dollars, making parenthood unaffordable for many parents who long for a baby. Colt admits that cost could prevent couples from creating families through surrogacy.
Rhoads-Heinrich gets frustrated when she hears people can’t afford a surrogate. “It’s just a matter of putting some money away each month,” she said. “After, you know, four or five years, you have enough to do surrogacy. Maybe you have to work an extra job. Maybe if you get rid of the extra vehicle and just tighten up, you should be able to afford it.”
Both Fell and Gendron worry about the documented health risks to surrogates. Fell conducted her own study, which showed surrogate pregnancies are high risk, with increased rates of pregnancy-induced high blood pressure with complications including liver failure and stroke, along with premature delivery and underweight infants.
Colt says that everybody must go into surrogacy with a full understanding of the risk factors. “Getting pregnant is a risk factor to women, right?” she said. She says clear communication between surrogates and intended parents can minimize such risks.
A question of right and wrong?
For Fell, surrogacy is morally wrong. She’s very clear when she says: “Nobody has a right to a child.” She calls the conversation so adult-centric that society routinely ignores the United Nations Convention on the Rights of the Child, which declares that children have the right to know and be known to their biological parents.
Rhoads-Heinrich disagrees. In the past 24 years, her agency hasn’t come across one person it couldn’t accept as a prospective parent, she said.
Gendron understands the primal desire for children but says there’s no international law that affirms the right to a child.
“Children have a right to have parents; it’s not the parents that have a right to have children,” she says. She worries that as soon as the door to surrogacy is opened, governments are obliged to guarantee parental rights, which means, she says, that governments must provide surrogates for those who want one.
Gendron also laments that the focus on adult voices has meant forgetting to consider the best interests of children — children who are deliberately created with the intention of taking them away from their gestating mothers right after birth.
Kallie Fell continues to battle against the surrogacy industry. No matter how painful infertility is, she’s adamant that the right to a child can’t be superseded by the physical and psychological harms done to women used for their reproductive parts and the damage done to the children they bear.
North of the border, Baden Colt waits for her embryos to be cleared. She has posted a fresh video on her Instagram account, hoping to find the woman who will make her dreams of a second baby come true.
Three questions to consider:
1. Why would a woman need to have her fertilized eggs implanted in another woman’s womb?
2. Why do some people think surrogacy is wrong?
3. What role, if any, do you think the government has in regulating surrogacy?
Ferrukh Faruqui is an Ottawa physician and freelance journalist who writes about medical ethics.