Jan 31st 2021
MYRANDA CHANCEY loves being pregnant. So much so, that after having three children of her own, the 26-year-old decided in 2019 to be pregnant for someone else: “I think everyone deserves to experience the joys of being a parent.” She signed up to a surrogacy agency in her home state of California, and on October 5th last year gave birth to “the surrobabe”.
Ms Chancey lives in one of the most permissive jurisdictions in the world for surrogacy. Many rich countries are moving in the direction of liberalising surrogacy laws, just as many poorer ones are putting up obstacles. California has no upper limit on how much a woman can be paid to carry a child for another family; Ms Chancey was paid upwards of $40,000. American Surrogacy, an agency, calls it “an extremely surrogacy-friendly state” in terms of the rights it gives to both intended parents—the people who want a child but are unable to carry one themselves—and to the surrogates. Commissioning a surrogate is possible for anyone, regardless of sexuality, nationality or marital status, and surrogates are paid handsomely.
On February 15th a new law, the Child-Parent Security Act, comes into force in New York, which will overhaul that state’s surrogacy laws, including allowing women to be paid for bearing a child for someone else. The law leaves Michigan and Louisiana as the only states in America that explicitly prohibit compensated surrogacy. Michigan does not recognise any form of surrogacy at all (a couple in the state are having to apply to adopt their twin babies, who were born to a surrogate on January 11th). Britain and the Netherlands are considering introducing “pre-conception agreements”—proposals to make a baby’s intended parents its legal parents at birth. Ireland is due to pass its first legislation on the matter, which would allow for altruistic (ie, non-compensated) surrogacy, within the next four years.
New York’s surrogacy reform was the result of a decade of lobbying, in particular from LGBT organisations. As gay marriage has become more widespread, they have turned their sights towards what some activists call “fertility equality”—the right to have a child regardless of biological ability. Tens of thousands of people protested in Israel in 2018 when gay couples were excluded from surrogacy legislation. The country’s Supreme Court ruled last year that the ban was illegal, and gave the Knesset, or parliament, until March 1st to amend the law to allow gay couples to commission surrogacies domestically. In Britain, gay couples have been able to apply for parental orders (the legal process to transfer parenthood from the surrogate mother to the intended parents) since 2010. Surrogacy UK, one of the three main agencies in Britain that help match intended parents with surrogates, says that their share of same-sex clients has risen from 8% in 2011 to 48% in 2018. Brilliant Beginnings, another agency, has a roughly 50-50 split between gay and straight clients.
Surrogacy has been around since antiquity. The Bible recounts that Abraham’s infertile wife, Sarah, gave him her slave, Hagar, to bear his child. The mechanics of that arrangement (although not the slavery, or typically the intercourse) still happens today in “traditional surrogacy”. Artificial insemination is used to impregnate a woman, the surrogate, using her own egg. She carries the child and is its biological mother. “Gestational surrogacy” relies on in vitro fertilisation (IVF) technology. An embryo made with a donated egg and sperm sample is implanted into a surrogate who carries the baby to term, but she has no genetic link to the child. In contrast with adopted children, those born through surrogacy can thus be genetically related to their intended parents, and be raised by them from birth, which isn’t always the case with adoption. Although traditional surrogacy is generally unregulated, legal frameworks for gestational surrogacy vary. In Britain, for example, the intended parent must have a genetic link. In practice this means that single women are “significantly discriminated against”, says Sarah Jones of Surrogacy UK, because single women with fertility problems are more likely to require both a donated egg and donor sperm. And whereas many states in America allow for pre-conception agreements, other places, such as Britain, require a parental order after the birth.
There are no comprehensive data on surrogacy in most countries. But some proxy measures suggest it is growing in popularity. Between 2011 and 2019, the number of children involved in parental orders in England and Wales increased from 121 to 445. In Israel, the number of cross-border surrogacies (which account for the majority of arrangements, and are the only option for same-sex couples) went from 49 in 2010 to 232 in 2014. In America more than 10,000 babies were born following gestational surrogacy between 2010 and 2014. The industry, worth $6bn globally in 2018, is expected to reach $27.8bn by 2025, according to Global Markets Insights, a market-research firm.
But the increase in demand has come at a time when many poorer countries are shutting up shop. In recent years Cambodia, India, Mexico, Nepal and Thailand have banned surrogacy for non-residents. As with adoption (international adoption fell by 72% between 2005 and 2015), many poorer countries started to feel that fertility tourism risked exploitation. Thailand banned foreigners in 2015 after a scandal in which an Australian couple abandoned a baby with Down’s syndrome who was born to a surrogate, while taking his healthy twin sister. India also banned surrogacy for foreigners that year; there had long been reports of women living in cramped “surrogacy hostels” to carry babies for foreign parents. And the co-19 pandemic alerted many intended parents to the risks of cross-border surrogacy, notes Melissa Brisman, a lawyer focused on reproductive issues in New Jersey. Hundreds of babies born to surrogates in Russia and Ukraine were stranded after their intended parents were unable to collect them because of travel restrictions.
Building families in a way that everyone agrees is fair and ethical can be tricky. According to a survey in 2018 by Surrogacy UK, 84% of surrogates supported the introduction of pre-conception agreements. These proe assurance for the surrogate that she will not be left legally responsible for a child that she doesn’t consider hers. But the problem with such agreements, says Britta van Beers of Vrije Universiteit in Amsterdam, is that “legal certainty is bought at the cost of surrogate mothers”. Some fear that imposing any kind of legally enforceable contract on surrogates limits their rights of bodily autonomy, eg, if she wanted to keep the baby. In America, where surrogacy contracts are common, they detail the circumstances in which a woman can have an abortion. But whatever a woman agrees to in a contract, she may feel differently when she is actually pregnant and faces a conflict between her right to make decisions about her body and her contractual obligations. Ms Brisman says the new law in New York goes too far in protecting the surrogates’ rights. “The carrier has full control over everything in her body,” to the extent that a surrogate could refuse a medically-necessary Caesarean delivery, even if that risked the life of the baby, and it wouldn’t be considered a breach of contract. That is a turn-off for intended parents, says Ms Brisman.
Surrogacy is one of an array of reproductive methods that are now available to people with enough money. Even in countries where only altruistic surrogacy is permitted, intended parents must cover the surrogate’s expenses, fertility treatments and other fees. In Britain it can cost up to £60,000 ($82,147). But it is also one of the least regulated and most complex—no other form of reproduction asks so much of another person. Since 2005 children in Britain born from sperm, egg or embryo donation have had the right to find out who their biological parents are. But the fact of surrogacy is not recorded in any official documents, although if a parental order were issued there would be a paper trail leading back to the identity of the birth mother. In places where pre-conception agreements are used, such as many states in America, this paper trail may not exist at all.
Most people in the surrogacy business agree that trust is as important as legal clarity. After Ms Chancey’s surrogacy, she felt she was “lied to and manipulated” by the intended parents. She had been promised updates about the baby’s life, but “they cut all contact including deleting me from social media right after the baby was born…it was very heartbreaking.” The parents sent her a court order while she was in labour prohibiting her from taking any pictures. The experience hasn’t deterred her from doing it again, though—she is already preparing for her next surrogacy. Still, she says, “I’ve learned the hard way to make sure everything I’m told needs to be put in writing.”
