Commercial surrogacy, Legal and ethical aspects of transnational surrogacy, Medical tourism, Transnational surrogacy



  1. Frankford, David M. JD
  2. Bennington, Linda K. PhD, RN
  3. Ryan, Jane Greene PhD, RN


ABSTRACT: Infertility affects more than 7 million American couples. As traditional treatments fail and the costs of hiring a surrogate increase in the United States, transnational commercial surrogacy becomes a feasible alternative for many couples. Infertile couples may opt for this choice after reading enticing Internet advertisements of global medical tourism offering "special deals" on commercial surrogacy. This is particularly true in India where couples from the United States can purchase transnational surrogacy for less than one-half or even one-third of the costs in the United States, including the cost of travel. The majority of surrogate mothers in India come from impoverished, poorly educated rural areas of India. Commercial surrogacy offers the lure of earning the equivalent of 5 years of family income. This multidisciplinary review of the literature suggests that the issue of commercial surrogacy is complex and influenced by a number of factors including expensive infertility costs, ease of global travel, and the financial vulnerability of Indian commercial surrogate mothers and their families. Questions are being raised about decision making by the surrogate mother particularly as influenced by gender inequities, power differentials, and inadequate legal protection for the surrogate mother. More research is needed to understand commercial surrogacy, especially research inclusive of the viewpoints of the Indian mothers and their families involved in these transactions.


Article Content

Globally more than 186 million women are unable to conceive (World Health Organization, 2015). In the United States more than 7.4 million American women of childbearing age (15-44) have used infertility sources and 6.7 million have been unable to get pregnant or carry a baby to term (Centers for Disease Control and Prevention, 2013). As reproductive technology has advanced since the first test-tube baby in 1978 (Gugucheva, 2010), more women who desire genetically related children have chosen to pursue gestational surrogacy. Gestational surrogacy is prohibitively expensive for most couples, ranging from $50,000 to $250,000 (Shetty, 2012). Based on this review of healthcare, bioethical, and legal literature, numerous factors contribute to the booming commercial surrogacy industry in developing countries with the resources available to meet this need. These resources include infertility technology, willing surrogates, and a well-educated medical community to serve the transnational infertility marketplace. This article provides an overview of the tangled and difficult issue of commercial surrogacy including potential unintended outcomes. Commercial surrogacy is a complex issue and worthy of more careful examination, particularly from the perspectives of the Indian surrogate mothers, their families, and their community.

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In 2010, the Council for Responsible Genetics published Surrogacy in America (Gugucheva, 2010) and offered terms that define the many different components possible with surrogacy (Table 1). While the term "gestational surrogate" is used most commonly in the literature we have chosen to use the language of "surrogate mother" (SM) as a way to infuse a humanistic perspective in a process that can otherwise become driven by technology and financial opportunity.

Table 1 - Click to enlarge in new windowTable 1. Surrogacy Terms and Definitions

Surrogacy has been practiced since the biblical era and is influenced and shaped by the cultural, traditional, and social norms of a specified people (Palattiyil, Blyth, Sidhva, & Balakrishnan, 2010). This complex interplay among sociocultural, legal, and bioethical factors has resulted in a lack of consistent international gestational surrogacy practice, with commercial surrogacy prohibited in many countries. India is the prominent exception (Jaiswal, 2012; Pande, 2010b).


The legality of surrogacy varies widely between countries and in some cases within countries from state to state (i.e., the United States, Australia, and Mexico) (Armour, 2012). France, Iceland, Germany, Italy, China, and Japan have legislative provisions that prohibit both altruistic (as a favor with no fee) and commercial (payment of a fee involved) surrogacy. By contrast, the Netherlands, Belgium, Denmark, United Kingdom, Greece, Norway, Spain, Sweden, Switzerland, and Canada prohibit commercial surrogacy but permit altruistic surrogacy. In 1992, Georgia, formerly of the Union of Soviet Socialist Republics, deemed surrogacy legal with the caveat that the SM doesn't have parental rights to the child she carried. The Ukraine passed similar laws in 2002. Israel is the only country that not only allows, but funds surrogacy through the 1996 Embryo Carrying Agreements Law. This law regulates surrogacy according to religious law at the state level with approval and oversight of every surrogate contract. Within the United States, California has the most liberal laws regarding surrogacy: single men; single women; heterosexual couples; and gay, lesbian, bisexual, and transsexual couples can contract a surrogate and obtain parental laws. Gugucheva (2010) provides a review of surrogacy laws in the United States.


India: An Open Global Surrogate Marketplace

Due to low costs, access to infertility technology, and an abundance of impoverished women willing to become commercial surrogates, India has moved into the infertility medical tourism marketplace (Jaiswal, 2012; Pande, 2010a; Rotabi & Bromfield, 2012; Sarojini, Marwah, & Shenoi, 2011). The first surrogate baby in India was born on June 23, 1994. In 2004, surrogacy began receiving extensive international attention when an Indian woman gave birth to a surrogate child for her daughter in the United Kingdom (Surrogacy India Guide, 2012). In 2007, a couple from the United States was interviewed on the Oprah Winfrey television show, which generated more attention about surrogacy in India (Surrogacy India Guide).


Often, surrogacy and related infertility treatments in developed countries such as the United States are not covered by health insurance, making the prospects of a baby prohibitively expensive to many couples. The costs of surrogacy in India are one-third to one-half of those in developed countries and the required high technology is available; therefore, it has become a viable option (Jaiswal, 2012; Pande, 2010b; Shetty, 2012). India has become a preferred destination for couples in the United States and other developed countries who are seeking fertility services (Rennie & Mupenda, 2008; Saravanan, 2013).


It is estimated that surrogacy generated more than $400 million a year from the 3,000 fertility clinics across India in 2012 (Bhalla & Thapliyal, 2013). Commercial surrogacy in India has become a viable industry for the same reasons outsourcing in other industries has been successful: a wide labor pool working for relatively low rates (Bhalla & Thapliyal). This global commercialization of gestation raises a number of questions about the extent to which Indian women are being exploited by wealthy foreigners who are willing to pay the comparably low costs of commercial surrogacy available in India (Gupta, 2012; Jaiswal, 2012; Pande, 2010b; Saravanan, 2013). Perhaps this is a manifestation of exploitation of basic human rights to suit individualistic motives of either the wealthy from developed nations or transnational businesses prospering from the commercialization of infertility services (Pande, 2011; Rennie & Mupenda, 2008; Saravanan; Singh, 2014). Current literature suggests that the story is complex and does not have easy answers, although exploitation of impoverished women is a significant concern. The growth of commercial surrogacy in India has been influenced by the needs of the infertile couples and the ready availability of Indian SMs who are willing to become surrogates to collect what to them is a large sum of money, as well prohibitively expensive treatments, and limited infertility options in the home country of prospective parents (Bassan & Michaelsen, 2013; Inhorn & Shrivastav, 2010; Jaiswal; Palattiyil et al., 2010; Pande 2010a, 2010b, 2011; Rennie & Mupenda; Saravanan; Sarojini et al., 2011; Shetty, 2012). Both parties (infertile couple and SM) gain from the transaction; however, the imbalance of power and the lack of adequate knowledge of all the potential risks of commercial surrogacy on the part of the SM enhance the risk of exploitation.


Potential for Exploitation of Indian Surrogate Mothers

Commercial surrogacy is not merely a matter of a wealthy couple coming to India to hire an SM. There is emerging scholarship that strongly suggests some disturbing inequalities regarding SMs' treatment and consent (Jaiswal, 2012; Palattiyil et al., 2010; Pande, 2010a; Saravanan, 2013; Tanderup, Reddy, Patel, & Nielsen, 2015). Many of the Indian SMs are impoverished, illiterate, and from rural backgrounds; therefore, they are easily deceived about what they will experience (Pande, 2010a; Saravanan). They may be pressured into surrogacy by husbands and families and receive healthcare during the surrogate pregnancy that is more difficult to access when carrying their own child (Jaiswal; Palattiyil et al.; Pande, 2010b). See case example. The SMs are often uninformed about the risks of the procedures, have little or no input into number of embryos transferred or potential fetal reduction, and are required to follow the unilateral decisions made by the infertility clinical doctors (Tanderup et al.). Research suggests that nearly all aspects of the SM's life are controlled during her pregnancy with diets, medications, and activities monitored by the clinic staff that has employed her (Pande, 2010a, 2010b, 2011). Culturally some Indian communities attach tremendous stigma to commercial surrogacy comparing it to prostitution (Pande, 2010b).


Pande is a sociologist who has done extensive ethnographic work with SMs (2010a, 2010b, 2011). She conducted fieldwork between 2006 and 2008 with 42 surrogates including their husbands and in-laws, eight parents awaiting a surrogate-born child, two surrogate brokers, and two physicians. At the time of her study the median family income was about $60 United States dollars (USD) per month; the official poverty line in India during these years was $10 USD per person per month in the rural areas and $13USD per person per month in the urban areas. Of her 42 participants, 34 reported living below the poverty line. Pande further reported the majority of the SM's husbands were either unemployed or worked sporadically and that the money brought to the family through the SMs work (surrogate pregnancy) was equivalent to 5 years of family income (Pande, 2011).


While Pande (2011) has explored the experiences of SMs and their community, others (Jaiswal, 2012; Munjal-Shankar, 2014) raise the issue of the "statehood" of babies born to SMs in India, which is decided by the mother named on the baby's birth certificate. There are three potential mothers: the Indian SM, the commissioning mother, and the genetic mother. If the gestational egg came from an anonymous donor there are now four potential mothers. The commissioning or intended mother's name is commonly needed for the baby to receive a passport and in India the SM legally cannot be genetically related to the baby she is carrying (Jaiswal). Currently in India, the commissioning or intended mother is the one named on the baby's birth certificate. This leaves the gestational mother unnamed, increasing her invisibility and marginalization, both of which increase her potential for exploitation (Jaiswal; Munjal-Shankar).


Harrison (2010) described gestational surrogacy as "an increasingly normalized and culturally accepted component of family formation in the twenty-first-century United States" (p. 261). Ross-Sheriff (2012) in commenting on an Indian movie, Mala Aai Vhhaychy ("I Want to Be a Mother" in the Marathi language) stated:


"As a woman of Gujarati Indian background, I felt culturally offended by the surrogacy scenario portrayed in the film, especially with the gestational surrogacy being part of a financial transaction organized by brokers and the medical tourist industry. We Gujaratis place great significance on motherhood, and motherhood is socially venerated. The human body is sacred, and a child is a gift from God that cannot be bought, sold, or given away. The sale of a child is a moral outrage, and there are social sanctions against the act." (pp. 126-127).


The perception of many in India is that wealthy foreigners are exploiting impoverished, poorly educated, often rural women reminiscent of colonialism (Singh, 2014). Pande (2010b) fittingly describes their viewpoint "as the ultimate form of medicalization, commodification and technological colonialization of the female body, and as a form of prostitution and slavery resulting from the economic and patriarchal exploitation of women" (p. 293).


Lack of Legal Protection for the Surrogate Mothers

Commercial surrogacy is enabled by Indian law, which legalizes commercial surrogacy while currently offering SMs very little protection. This laissez faire approach is what continues to make India such an attractive destination for transnational surrogacy (Jaiswal, 2012; Munjal-Shankar, 2014). However, some change may be coming. In response to a domestic surrogacy case, the Indian Council of Medical Research drafted the Assisted Reproductive Technology bill, but it has been tabled in Parliament since 2011 (Jaiswal). There are numerous press reports that the 2010 draft bill has been revised but at this writing no revisions have been made public (Outlook, 2015).


Even were the 2010 bill enacted, its protection of SMs remains thin and inadequate; many of its provisions are written to protect only the intended parents. The bill provides that the intended parents must bear the expenses of pregnancy, including health insurance, but it fails to regulate altogether the amount paid to the SM (art. 34-2.3). It requires that the SM be between the ages of 21 to 35 years, should not have given birth more than five times including her own children, and the bill prohibits embryo transfer more than three times for the same couple (art. 34.5). Nonetheless, the practical effect of these provisions is that an SM may receive as many as 15 (5 x 3) embryo implants during her surrogacy "career" (Jaiswal, 2012). The bill is silent on forced fetal reduction or cesarean births. To protect the intended parents, the bill provides that the SM relinquishes all parental rights (art. 34.4), with no right to reconsider after birth, and that she must be screened for sexually transmitted illnesses, communicable diseases, and should not have received a blood transfusion in the last 6 months (art. 34.6), as these may have an adverse bearing on the pregnancy outcome (Saxena, Mishra, & Malik, 2012). The bill explicitly provides that surrogacy agreements are binding (art. 34.1) but provides for no legal or psychological counseling for the SM. The bill is designed to facilitate India's booming business in transnational commercial surrogacy.


Stateless Babies

There have been instances where babies born via surrogacy have been in legal limbo without a designated country when there are conflicts about who is the legal mother and/or father (Bhowmick, 2013). For example, a French man who had twins through a surrogate in India was allowed to travel back to France, where surrogacy is illegal. The twins have been placed in foster care until the court case is resolved. Another high profile case involved a Norwegian woman who also had twins through a surrogate and was stranded in India for 2 years. The Norwegian embassy in India refused to issue travel papers after mandatory DNA testing proved the twins were not biologically related to her (Bhowmick).


Nursing Implications

Social workers, physicians, ethicists, and others have written statements about surrogacy, but to date, no nursing professional organizations have published any reports or opinions on use of commercial surrogacy from poorer countries. Nurses can influence the considerations of using a transnational surrogate through education, clinical practice, research, and especially an open discussion of the ethical and legal issues involved (Table 2).

Table 2 - Click to enlarge in new windowTable 2. Nursing Strategies for Indian Commercial Surrogacy

More research is needed, particularly on multiple viewpoints such as the SM, her family, and the couple commissioning the pregnancy and birth. Findings of Pande (2010a, 2010b, 2011) should be expanded to gain more understanding about these experiences. Rich areas of research potentially exist such as exploring how Indian SMs make decisions, who influences those decisions, and the role of culture, religion, gender, and power in decision making. Also worthy of more study is whether or not Indian women make the decision to become surrogates because they feel that they have no other recourse to make money or please their family members who are instructing them to do so. Multidisciplinary research from nurses, midwives, physicians, bioethicists, legal professionals, and other healthcare providers can help all of us gain more understanding of this complex topic. This issue will continue to evolve as more developing countries begin to emerge with favorable conditions for couples seeking to have a child via commercial surrogacy (Rotabi & Bromfield, 2012). Nurses must advocate for human rights protection of poor uneducated women who participate as SMs without being fully aware of the clinical risks and the psychosocial ramifications.


Case Example

In May 2012, Premila Vaghela, an impoverished 30-year-old gestational surrogate, died while waiting for a routine exam. She purportedly fell to the floor having a seizure and was rushed to the hospital for an emergency cesarean. Following the birth of an 8-month fetus, who was transferred to neonatal intensive care unit, the mother was transferred to another hospital where she died. There were no complaints filed because her family was paid the traditional fee for services as the end product, a baby commissioned by an American family, survived (Desai, 2012).



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