Surrogacy, according to Lasker, is a type of assisted reproduction in which a female agrees to bear a child for another woman or a couple. In many cases, surrogacy is the alternative method for single parents or spouses with reproductive health challenges to raise children. Surrogate mothers have become a source of hope for majority of couples who have difficulties with natural conception. As noted by Lasker, there are distinctly two types of surrogacy namely, gestational and traditional. The agreement between the surrogate mother and the person to assume parental responsibilities after the child’s birth can either be based on compensation (commercial surrogacy) or non-compensation (altruistic surrogacy). On one hand, the latter is practiced in most parts of the world and people prefer it to the other option, since it is accessible and serves as an inclusive parenthood approach. On the other hand, commercial surrogates, according to Thompson (130), are highly vulnerable to financial inducement and exploitation based on their economic situation. This paper, therefore, seeks to determine the effect of the said practice on women’s lives in society, understand the conditions that make surrogate mothers more vulnerable to profiteering, and the strategies that can be applied to protect them from the different forms of manipulation in the community.
The advancements in technology including artificial insemination and in vitro fertilization have presented the human race with varied options of raising children. The commercialization of surrogacy, however, has in the recent years presented contentious discourse between its proponents and the opponents. As inferred from Thompson (124), the proponents of the practice argue that the approach presents promising treatments for infertilities as it offers solutions for the difficulties that infertile couples, man or woman, as well as a family may face. The opponents are on the contrary against commercialization of surrogacy noting the array of ethical issues as well as the challenges it brings to the actual or potential surrogate mother.
In light of the opponents’ assertions, the effects of commercial surrogacy are worth noting for the policymakers, non-governmental organizations, human rights groups, health professionals, and potential commercial surrogates to understand the suffering and challenges endured by women in the society in regards to the practice. According to Vora, “Some of the types of work performed by call center agents and surrogates are indexes of new forms of exploitation and accumulation within neoliberal globalization, but they also rearticulate a historical and colonial division of labor” (25). From such a point of view, it is understood that commercial surrogate mothers are viewed as subjects involved in the business of giving birth for others in exchange of money and that is the labor they provide. Harvey (19) echoes Vora’s claim by arguing that it is the fluidity of the black body that is to be used a vessel not only as a Whiteman’s vessel for exploration but also for renunciation as well as enjoyment. In this view, it is noted that while the surrogates in either form of surrogacy may decide to take part in the practice with moral aspects of helping the infertile to live a normal life, Harvey considers it an exploration of scientific innovations, which the opponents are highly opposed to (20).
Accordingly, despite the governing laws in countries that allow commercial surrogacy, the women involved in this business are suffering in silence. For instance, the surrogate mothers, as explained by Del Savio and Cavaliere (77), face financial exploitations in which they are often undercompensated. The nature of the service and the labor they provide is itself complex. Thus, many of them are duped into agreeing to terms and conditions that are either incomplete or render them lesser powers.
Nevertheless, the reason that only a few countries including the United States, Mexico, Ukraine, India, Mexico, and Thailand allow commercial surrogacy typically depicts ethical issues stemming from public policies governing the contracts. There is the need to protect the surrogate and the child. Unfortunately, the laws protecting the practice in the above-mentioned countries are unclear. According to Del Savio and Cavaliere (82), the surrogates and the baby suffer in the event that expected couples divorce before the child is delivered. Since the contracts lack certain information, the mother is subjected to unplanned parenthood and has to meet the parental obligations. Similarly, in the words of Owens, medical bondage is a healing approach linking the historiographies of slavery with medicine, as he highlights the unethical modalities which the nineteenth-century physicians applied to intervene in health conditions that the black patients were subjected to having been perceived as objects and subjects (8). Medically, the women are accorded no dignity as they are perceived to be objects and subjects of the gestation labor.
In other situations, the surrogate is coerced to meet her contractual agreement regardless of her heath condition. Nozawa and Banno (94) inform that many women have lost their lives once they commit to commercial surrogacy terms and have accepted a half or more of the agreed reimbursement amounts. When complications arise, it is the life of the child that matters as opposed to that of the mother. Therefore, it is deduced that in situations where a surrogate’s life can be saved through safe termination of the pregnancy, the contracting couple prefers to push through with the process in spite of the uncertainties of the outcomes regarding safety and the right to life.
With regards to conditions for vulnerability and exploitation with reference to commercial surrogacy, driving factors are both economic and non-economic. Davis (45) contends that reduced cost of commercial surrogacy is the major reason for the vice in less developed countries. In examining the author’s claim, it was noted that contractual agreements permitting commercial surrogacy in the US cost approximately $110,000-150,000, while only about $25,000 goes to the surrogate (Davis, 52). The remaining amount covers medical costs, agency fees, travel expenses, and legal charges. When compared with those in South Asia and Eastern Europe, a tremendous reduction was noticed. For instance, average cost of commercial surrogacy in Ukraine is about $45,000, and one’s reimbursement fee on average is $10,000-15,000 (Voskoboynik 344). There is further decrease in these services as in India. According to Voskoboynik (344), it costs the parents to assume responsibilities once the child is born about $25,000, and the surrogate is paid approximately $2,000-10,000. As such, economic status of a country the surrogate originates from along with her financial situation imperatively contributes to her vulnerability and exploitation. Huge cost difference is apparent and remains an issue to be resolved if commercial surrogacy is to be an international practice.
Non-economic aspects for vulnerability and exploitation, on the other hand, concern public policies in the respective countries and availability of assisted reproductive technologies. Looking into Metzl’s “Introduction: Why against Health,” it is noted that there are certain fundamental questions that the author poses (6). He inquires whether the present-day ideas regarding health are mere echoes of the original practices or whether there are other forces influencing today’s bio-political age. The author further notes that in case the latter is true, then it is high time the audience acquainted themselves with new actors, agents, victims as well as beneficiaries. In addition, Metzl seeks to understand whether the medical authority is still relevant considering that health-related bodies such as pharmaceuticals directly advertise their products to target customers, the insurance companies setting health standards, and the populace being able to access medical information from the Internet, talk shows as well as package inserts (6).
The answers to some of the above questions raised by Metzl are a reflection of the practice without looking into dangers and putting into consideration emotional and psychological challenges as well as experiences of the surrogates. Potential mothers originating from countries that prohibit commercialization of surrogacy like Italy have been transported to other countries such as India and the US to offer the service. In most cases, the intended parents choose less industrialized nations in order to pay less. Voskoboynik (349) explains that being unaware of assisted legal fees, travel costs, medical care expenses, and laws for the procedure in the chosen country, the surrogate is undercompensated. Thus, prohibition of commercial surrogacy as well as execution of stringent regulations creates a flamboyant market where health facilities offering reproductive technology care, agencies, and the intending parents from abroad exploit.
Revelations inferred from effects of commercial surrogacy and conditions for vulnerability and exploitation point to strict regulations and prohibition as the precursor to lack of or unclear regulatory policies. Surrogacy policies depending on practicing countries are noted to be exclusionary; thus, intending parents opt to obtain the services from states where it is unregulated or allowed. Consequently, there is maximization of different risks the surrogates become exposed to. Hence, it is high time that the issues surrounding commercialization of surrogacy were resolved. The following are some of the strategies towards addressing challenges associated with the practice.
First, countries that allow commercialization of surrogacy should have clear laws that explain in detail the aspects of surrogacy contracts. The rights of both the surrogate, the child (if delivered), and the intending parents should be well-stipulated. Domestic regulatory bodies are necessary if the practice is to be tolerated. In India and Thailand, there are commercial agencies with no bodies to oversee their actions. It is for this reason that about 15 Vietnamese women were discovered in 2011 in Bangkok. Two noted to have recently given birth, while seven were about 12-34 weeks pregnant. According to Voskoboynik (347), they were enticed to travel to Thailand for well-paying employment opportunities. Their passports were seized by the contracting agency once they reached the country, and they were forced to bear children for other people. Evidently, it is why there need to be domestic regulations to oversee commodification of children and exploitation of women. Such measures should, nevertheless, ensure commercial surrogates are provided with attorneys to draft their agreements or go through those drafted by intended parents’ lawyers to advise accordingly.
Secondly, the countries where commercialization of surrogates is in public domain should establish international regulatory measures. There is greater need to deter agencies and intending parents from exploiting women who agree to commit to commercial surrogate contracts. The child’s and surrogate’s safety should come first. However, absence of international laws has seen intended parents travel from abroad to seek service where they divorce during the gestation period. Since there are no clear laws, the child’s citizenship is not easily determined apart from lacking basic necessities. Moreover, mothers often lack post-maternal care and are forced to raise children/child they never planned for. With such a perspective, international regulatory approaches would compel commercial surrogacy practicing nations to have clear guidance towards the practice.
Thirdly, there should be well-stipulated laws regarding protection of interests of the child and approaches for compensating the surrogate. According to Voskoboynik (356), the practice’s legalization should be accompanied by basic requirements. There should be provisions clearly outlining legal parentage and nature of acquiring citizenship for children born of surrogacy, fundamental laws governing rights and well-being of the surrogate mother, and protection of the intended parents from breach of contract and discrimination.
Surrogacy has its merits and demerits. While it offers a solution of parenthood to infertile couples, it has also been established that disadvantages women are exposed to comprise stigmatization, vulnerability and exploitation, post-maternity health issues, and legal battles that arise from taking advantage of economic/non-economic situations. However, the challenges have solutions only if and when certain strategies could be put into action. The most imperative approaches towards resolving the dangers arising from commercial surrogacy include formulating clear and well-explained laws embedded in the constitution to protect rights of the surrogates, the child, and intended parents and formulizing domestic measures to regulate the industry locally and internationally. Only when such recommendations are actualized, there will be less debate concerning ethics, morality, and pros/cons equations of surrogacy.
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