Ana-Luana Stoicea-Deram Feminist activist and President of the Collective for the Respect of the Person
Article updated in 2023
In March 2023, the Hague Conference appointed a new group of experts on parentage and . Based on the principle that ” agreements date back to biblical times” (2012 Report), the Conference aims to achieve transnational recognition of the implications of this practice. The Conference has chosen only lawyers involved in the practice to advise it, just as it consults only pro- NGOs.
Given these international efforts to regulate , it is important to understand why some want to regulate and what regulation would mean.
Surrogacy is not a medical practice
It should be remembered that is a social practice and not a medical technique, as is sometimes claimed. It is made possible by in vitro fertilisation and artificial insemination techniques. But asking a woman who does not want to have a child to carry a pregnancy to term (usually using eggs that are not her own) and then handing the resulting child over to other people is not a medical practice.
The main argument put forward by those in favour of regulating surrogacy is that it is inevitable: the practice is possible; it is carried out in many countries; people who want to have a child by using it do so anyway. So we might as well set a framework.
The regulatorist approach consists of rejecting the global approach to the nature of the problem
To want to regulate because the practice is inevitable is to refuse to question the nature of this practice, what it implies about human relations, namely the fact that certain human beings can be turned into means at the service of others; and about relations between women and men, since women are likely to see themselves as objects (oven, incubator, capsule, etc.) for the satisfaction of third party – who, in the vast majority of cases, happen to be men (the footballer Cristiano Ronaldo, who has three children born to surrogate mothers, is an example of this). This type of relationship is very similar to slavery, which is “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” (Slavery Convention).
In “A Human Rights Violation” (2017), Australian researcher Renate Klein shows that the regulatorist approach consists of rejecting the global approach to the nature of the problem and imposing a partial approach, questioning this or that aspect of surrogacy to see if and how it can be framed. In the words of American feminist Robin Morgan, Klein reminds us that this is the essence of patriarchy: the ability to institutionalise separation. Surrogacy is based on a fractured, disconnected and fragmented representation of women and their bodies. This is what the philosopher Sylviane Agacinski calls “Corps en miettes” (2013).
Regulating or legislating is tantamount to accepting the practice and believing that we can limit any harmful consequences. However, the problem is the framework itself: the existence of a limit is intolerable for those who wish to have children through surrogacy.
Moreover, regulating has nothing to do with women’s emancipation and autonomy. Where women have access to work that is properly paid and carried out in safe conditions, they do not become surrogates. Indian women make it clear that this is a sacrifice they make because they have no other way of earning a decent living and, above all, that of their children, and that it would be a failure for them if their daughters also became surrogate mothers (Rozée & al., 2016; Saravanan, 2015).
The demand for regulation comes mainly either from people who have had children through surrogacy, acting according to the logic of fait accompli and a posteriori regulation (which raises the question of the value of the law for these people), or from the various parties who have a financial and professional interest in the development of the practice: agencies, brokers, clinics, lawyers.
The role of the various laws or regulations in force today is to establish a standard that has a dual purpose, namely to protect the various parties involved in the practice (the surrogate mother, the intended parents, the children), as is the case in Great Britain, Ukraine, India, etc., and to guarantee the fulfilment of a contract, as is the case in the American states that have legislated in this area.
But the law in no way guarantees that the request will be met. Until now, British law has regarded the woman giving birth as the mother of the child, and it is only after she has given birth that she must give her final consent for the commissioning people to be recognised as parents. In addition, she is not to be paid, but is to be compensated for the costs incurred by the pregnancy (subject to a cap). This law is not working. There are not enough surrogates in the UK to meet British demand (as seen in To have and to hold: the rise of in GB, Vogue, 27/09/2017). This initially led to the development of reproductive tourism, with Brittish citizens seeking surrogacy services elsewhere, particularly to access services not offered in the UK. Lord Weymouth explains that he and his wife used a surrogate mother in California, so that the mother would not appear on the birth certificate. Since 2016, there has been a clear call for the legalisation of commercial surrogacy.
Where legislation on surrogacy exists and imposes a framework that limits the service to what is presented as an altruistic (supposedly ethical) practice, this leads to demands for its commercialisation.
As far as the contracts are concerned, their operation is characterised by a certain ambiguity in several respects. One of the first questions that arises when a contract is signed is what the conditions are for its reversibility (e.g. a purchase contract, a service contract, a marriage contract, etc.). In surrogacy, it is almost impossible to understand the reversibility of the contract. American contracts, which are always mentionned as examples, do not in any way protect the surrogate mother, as can be seen in the case of this woman who, harassed by the commissioning peple, turned them down, was subjected to racist insults by them, and decided not to be separated from the child. She is nevertheless separated from it because it is the product of the commissioning man’s sperm (Who is baby H’s parent?The Des Moines Register, 29/08/2017).
Contracts assume that the parties are equal. But sociological research shows that the parties are often unequal. Profiles of American ‘surrogates’ clearly attest to the unequal relationships (economic, social, cultural, symbolic) beetwenn surrogate and the commissiong people (Jacobson, 2016).
A contract implies that you can go to court to enforce compliance with its terms if one of the parties fails to do so: this is the role of the law. But to go to court, to enforce the law, you have to have the means to do so. But surrogate mothers’ lawyers are paid by the commissioning people at the beginning of the relationship, to give the appearance of correction. See the film “Breeders. A Subclass of Women“, which gives voice to American surrogates who have been deceived and exploited by the contract.
In this case, the contract opens the door to all sorts of abuses, as illegal things can be demanded of surrogates, and the so called “intended parents” are convinced that they will accept them in order not to lose the contract; for example, waiving confidentiality between the surrogate and the doctor, or accepting that the commissioning people are the only ones to decide on embryo reduction, abortion or even delivery methods.
The contract transforms children into property in the sense that, for example, in California the law on surrogacy is inspired by intellectual property legislation to establish parentage: the person who had the idea to have the child is the parent. Children are thus treated as property like ideas.
Even if it were accepted that regulating surrogacy could improve practice, it has to be said that the contentious issues would remain. Who is the mother? What are the criteria for identifying her? How are commissioning people and women who wish to become surrogates linked (for-profit agencies, public bodies, with what funding)? Who is responsible, under what conditions and according to what criteria? Can we choose (the mothers, the commissioning people)? In the name of what? What about the children? What arrangements should be made for their access to their origins? How can this be guaranteed? Muriel Fabre-Magnan, in La gestation pour autrui. Fictions et réalité (2013).
Whatever the conditions, regulating surrogacy would be tantamount to recognising the right of all people to use women as surrogates and to take back the children they give birth to on the basis of a contract. This would enshrine the irreducible inequality between women and men, and between those born under contract and te others.
Jacobson, H., 2016, Labor of love. Gestational and the work of making babies, Rutgers University Press
Rozée Virginie & al, 2016, La gestation pour autrui en Inde, Population & sociétés, no. 537, INED
Saravanan S., 2015, Global justice, capabilities approach and commercial in India, Men Health Care Philosophy, pp. 295-307, 18 (3)
Film Breeders: A subclass of women, CBC Network, in French here