To protect women and children, we have to let go of the illusion that surrogacy is anything other than a form of human trafficking.

Today, women everywhere are finding it harder than in previous years to get and keep work. Since the start of the pandemic, Forbes reports, more than five million women have lost their jobs, while gross numbers reveal that men have actually gained jobs. In 2021, the New York Times reported that women struggling to make ends meet are resorting to selling racy photos and erotic videos of themselves on subscription sites like OnlyFans. Sadly, it’s not surprising to hear that when women struggle to pay the bills, sketchy opportunities to make a buck sprout up, exploiting women’s limited options. The sex industry is a prime example of the exploitative, opportunistic tendencies of the market to take advantage of struggling, vulnerable women. Another example is the surrogacy industry.

In today’s market, it can be hard to imagine finally being told that you’re perfect for a job, precisely because you’re a biological female, but that is the reality when it comes to gestational surrogacy, a form of assisted reproductive technology (ART). To take on such a job, a woman (the surrogate) gestates the child of another individual or couple (the intended parents), until delivery—at which point the child is usually handed over to the intended parents.

Of course, many surrogacy arrangements claim to be “altruistic” rather than “commercial,” supposedly making surrogacy more like an unpaid hobby and less like a paying job. In altruistic surrogacy arrangements, the cost of a surrogate’s prenatal healthcare and delivery may be covered or reimbursed by the intended parents, but she is not specifically “paid” by them to be a surrogate above and beyond that amount. But as we will discuss, defining “commercial” surrogacy and differentiating it from “altruistic” surrogacy is no easy feat. Wherever contracts or money are involved to settle the transaction of human life, the potential for coercion, commodification, and control often follows.

Legalizing altruistic surrogacy is the policymaker’s answer to the global black market for surrogacy . . .

Nationally and globally, there is a push to more broadly recognize and legalize altruistic surrogacy in an effort to discourage commercial surrogacy, which is widely recognized as being rife with human rights violations. As noted by scholars Britta van Beers and Laura Bosch in their October 2020 article for the journal The New Bioethics, countries like the Netherlands and the United Kingdom are pursuing legislation for the legal recognition and management of domestic altruistic surrogacy, precisely because “commercial practices of surrogacy introduce the risk that children are being treated as tradable goods and that surrogate mothers are being pressured into offering their reproductive services.”

The unequal legality of surrogacy across international lines (and in the case of the United States, state lines) has led to something of a global black market for surrogates, where poor women in countries like Greece and Ukraine, where commercial surrogacy is legal, are used as surrogates by wealthy individuals and couples from countries where commercial surrogacy is illegal. In the United States, it’s estimated that anywhere from 15 to 50 percent of surrogates are military spouses—a group of women highly targeted by commercial surrogacy agencies for many reasons, but perhaps especially because of their difficulty in finding work, and their need to make additional income to support their families.

There are, of course, serious ethical questions about any form of surrogacy concerning, for example, the practice of paying for the use of women’s bodies and the sale of children. Such questions lead some to conclude that all forms of surrogacy are a form of human trafficking. But even if one wanted to outline a path for altruistic and ethical surrogacy, it’s not so easy to disentangle commercial and altruistic surrogacy, because all surrogacy arrangements and contracts are rife with the potential to exert undue pressure and control over the surrogate and her body. Whenever any amount of money is exchanged, the line between merely “covering care” of a surrogate and “payment to be a surrogate” easily blurs, as the intended parents seek to exercise control over the lifestyle and activities of the surrogate in their attempt to ensure the health of the baby.

Further muddying the waters between altruistic and commercial surrogacy is the phenomenon in which the legalization of altruistic surrogacy creates more demand for surrogacy—a demand that can only be filled by making commercial surrogacy legal.

. . . but can surrogacy ever be solely altruistic?

Since much of the surrogacy industry depends on women making themselves available, there is an incentive to make women associate warm feelings with surrogacy, whether it is altruistic or commercial. “You have never really lived until you have done something for someone who can never repay you,” one surrogacy provider quotes the Puritan preacher John Bunyan on their website.

“It is a myth that surrogates are motivated by altruism,” Jennifer Lahl, president of the Center for Bioethics and Culture, told me in an interview. “The reason that I say that is because when you look at states, in the United States in particular, that are pushing for surrogacy to be permissible, they’re pursuing commercial surrogacy.” She notes the evolution of surrogacy law in New York, which historically had been one of the only states to outright outlaw surrogacy. The state then went quickly from permitting altruistic surrogacy arrangements to legalizing commercial surrogacy in a new statute that will take effect on February 15, 2021.

The reason for this slide, Lahl believes, is because “the argument was made that women aren’t available in abundance [for surrogacy] if they’re not being paid.” She notes that New York state senator Brad Hoylman made this exact point when arguing for the legalization of commercial surrogacy. “I’m the proud parent of two daughters born through gestational surrogacy,” said Hoylman. “Unfortunately, under the current law, my husband and I had to travel 3,000 miles to California to build our family because New York makes [commercial] surrogate agreements illegal.”

“If you take away the money,” says Lahl, “all these women who say they love to help build families, they love being pregnant, they want to help other people—overwhelmingly they go away when they’re not being paid.” That tells you that, for many women, altruistic reasons aren’t enough reason to lend the use of their body for nine months.

Outsourcing the risks of pregnancy to poorer women

There’s also the question of risk, and whether or not there’s an appropriate level of remuneration that could adequately compensate a woman for the risks she takes on in agreeing to be a surrogate. After all, no pregnancy is without risk, and ART pregnancies carry more risk than natural pregnancies. Lahl notes that there have been at least three surrogate deaths in the United States, and that “the payment does not mitigate the fact that these women died.”

“You’re putting a young mom—as surrogates are overwhelmingly young moms with their own children—in a very risky situation,” Lahl says. “Asking her to do something that’s harmful to her, and harmful to the baby—or babies—that she’s carrying.”

Complaints already abound about the high cost of surrogacy, which some feel unfairly puts those who can afford it in a privileged position over those who cannot. TV anchor Anderson Cooper describes surrogacy as his only option for building a biological family, and celebrities like Kim Kardashian glamorize surrogacy as an option for women who would have pregnancy complications of their own. Kardashian used a surrogate after “previously suffering from pregnancy complications, including placenta accreta,” and while her surrogate might not have had that exact condition, by choosing surrogacy she passes on the many other risks of pregnancy to another woman. For intended parents unsure about using surrogacy for these reasons of passing off risk to others, one surrogacy provider offers another inspirational quote, this time from Elon Musk: “If something is important enough, even if the odds are against you, you should still do it.”

Doubts about informed consent

But, you may be thinking, we allow people to assume risk all the time. Why shouldn’t Kardashian’s surrogates—or any others—be allowed to agree to these risks for themselves? Consider someone who donated his or her kidney, for instance. An organ donation is not without risk, yet we allow people to donate kidneys without too much hand-wringing over the issue—at least, without as much concern as some have over surrogacy.

When people present organ donation as a parallel to surrogacy, Lahl responds, “First, an organ donor is truly a donor—they’re not being paid.” Further, one does not get their kidney back once it’s been donated—it is an irreversible gift. Surrogacy of course differs from kidney donation scenario in that whether the surrogacy is altruistic or commercial, a woman who acts as a surrogate cannot truly be considered a donor in the same sense as someone who donates a kidney. Rather than donating, she is effectively “renting” out the space of her body for a time to another individual or couple. The intended parents often have a remarkable amount of control over the surrogate’s lifestyle and body that begins pre-conception and lasts throughout pregnancy and delivery. “I’ve read so many surrogacy contracts,” Lahl told me, “all drafted in the United States—predominantly drafted in California, which is a very surrogacy-friendly state—and there is so much control . . . so much threat placed in the contract if she does not abide by the rules.”

Additionally, Lahl notes, when people agree to take on the risk of being an organ donor, they have greater informed consent than surrogates do, given the decades of research on organ donation and the data we have on the long-term effects of organ donation. Surrogacy does not benefit from the same expanse of data, and is far more experimental than organ donation. As a result, Lahl believes that surrogates are not in a position to give properly informed consent to the risks they agree to take on in a surrogacy arrangement.