In the context of the CSW67 on “Surrogacy a violation of human rights, a violence against women“, a conference led by CIAMS, we sent these seven points to members of UN agencies and institutions that represent and promote respect for human rights and are concerned by surrogacy. These points denounce the forms of violence and exploitation suffered during surrogacy, the risks involved and the prejudices we have identified.
Reproductive surrogacy – For the abolition of the practice
Definition : Surrogacy is defined as the practice of recruiting a woman, for payment or not, to carry one or more children, conceived or not with her own oocytes, in order to hand them over to one or more persons who wish to be designated as parents of these children.
I. Surrogacy as an infringement of women’s and children’s rights
The issue of surrogacy must always be addressed from the point of view of the women who engage in this practice and the children who are born from it, not from the point of view of clients called by the market “intended parents” who wish to obtain a child who is genetically related to them.
Both surrogate mothers and children are victims of the market which considers them not as citizens but rather as goods that can be bought and exploited.
In Ukraine, half of the children admitted to orphanages are children rejected by surrogacy. The clients (or intended parents) don’t want to take charge of the child, either by simply renouncing their project, or because they consider that the “product” is not “up to standard”. And this rejection of those babies has not been subject to scientific and psychological studies yet.
Like the right to voluntary termination of pregnancy, this fight against reproductive exploitation has been and continues to be fought by and for women. Fortunately, abortion is now legally accessible in countries which respect women’s rights. The case of reproductive surrogacy is no different from that of abortion, which has long been forbidden based on religious and patriarchal grounds, but never from the point of view of women, as is the case of surrogate motherhood today only considered from the clients and market point of view.
II. A practice that falls under human trafficking
The recruitment, hiring, selection and enlistment of women for reproductive exploitation is human trafficking and child trafficking.
In order to be qualified as a criminal activity, trafficking must meet three distinct criteria ; according to the definition that the EU has included in its 2011 anti-trafficking directive :
- The activity: recruitment, transportation, reception
- The means: the threat or use of force, deception, coercion, abuse of power or position of vulnerability
- The purpose: exploitation of trafficked persons
Cross-border surrogacy can be qualified as human trafficking of women for reproductive purposes as it fulfills all this criteria necessary to qualify as human trafficking :
Criterion n°1 : Activity. The surrogate mothers are recruited by the agencies or directly by the clients who contact them via social media. They can be “transported” when the agencies move the surrogate mothers to the client’s country, for their convenience, or to another country to circumvent local regulations (case of Ukrainian surrogate mothers being sent to northern Cyprus for embryo transfer, then for delivery), or when the surrogate mother are displaced from rural area, where they have been recruited, to a town for IVF, pregnancy monitoring and then delivery.
Criterion n°2 : Objective. The “consent” of surrogate mothers to enter into this practice is often based on deception, notably ignorance of the high level of risks specifically associated with this practice (from death, to pre-eclampsia, gestational diabetes, hysterectomy, recourse to cesarean section requested by the clients or imposed by the agencies, ). Also, victims of the misrepresentation of this practice as progressive and harmless, by the market and its accomplices (lobbies, clients, brokers, lawyers…). The social and economic vulnerabilities of women who get involved in this practice as surrogate mothers is proven.
Criterion n°3 : The means. Surrogacy is an attack on human dignity and gives rise to the exploitation of women, for the benefit of third parties and for the profit of those involved in this human trafficking (agencies, psychologists, lawyers, clinics…).
According to international reports, surrogate motherhood is not only child smuggling but also selling children :
- The UN Special Rapporteur “on the sale and sexual exploitation of children, including child prostitution and child pornography and other content” recognized in her 2018 progress report that “surrogacy falls within the scope of the sale of children whenever the surrogate mother or a third party receives remuneration or any other benefit in exchange for the transfer of a child.”
- In surrogacy, the unborn child is assigned to the clients before conception, which is akin to the sale of a child according to the “Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.” Article 4 of the Convention requires that the consent of the biological parents, and in particular that of the mother [who gives birth to the child], be obtained after the birth of the child in order to prevent the smuggling, sale or trafficking of children.
- The “Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography” defines, according to article 2, the sale of children as “any act or transaction whereby a child is delivered by one person or group of persons to another person or group of persons in return for payment or for similar consideration”, which is the case in surrogacy.
III. Reproduction and perpetuation of violence
Violence is understood here as acts that cause harm, damage, physical, psychological or economic suffering or lead to the death of a woman who acts as a surrogate. These acts can be legal or illegal, but with always full knowledge of the facts. Those who carry them out do not necessarily intend to harm the surrogate mother, but they know that these acts can be harmful to her, or even cause her irreversible damage (loss of an organ or death), and that they are not intended for the woman’s well-being. Knowing that she may lose her life does not make her death any less violent, especially since this violence is felt and experienced by all the people around her.
Many ordeals surround the process of surrogacy leaving the women victims (surrogate mothers) and children born from these practices in a cycle of violence from the very conception of the embryos to the birth of the children.
- IVF, a dangerous procedure : For IVF to be successful, several embryos are often implanted at the same time in order to increase the chances of pregnancy with at least one baby […] However, the transfer of more than one embryo is not medically recommended. Thus, IVF can lead to multiple pregnancies, which are known to be more dangerous, while the surrogate mother has no desire for a child of her own. It must also be said that cases of twin births have resulted in more abandonment of children by the commissioning parent(s), because they had only ordered one child or because one of the twins had a disability.
- Psychological violence : It is not uncommon for the surrogate mother to suffer from postpartum psychological disorders following the abandonment of the child she was carrying. It must also be said that too few studies exist concerning the medium and long term effects or the immediate side effects, so there may be other medical risks to fear.
The invisibilization of violence is ensured by simultaneously ignoring the gendered nature of the practice and its impact on the collective situation of all women, by showing only individual situations.
When international bodies ignore the violence inherent to reproductive surrogacy, they contribute to the normalization of violence against women. Maintaining inequalities between women and men and normalizing violence against women, this ensures that the reproductive market has the necessary number of women consenting to their exploitation.
Reproductive surrogacy is thus an integral part of violence against women as well as the selling of oocytes, the ban on abortion or forced abortion, the forced sterilization. When a woman is used to producing a child for another person, that is to say not for her own wish for a “family”, this is exploitation.
IV. Against the right of exploiting others
Reproductive surrogacy, when presented as a solution to the alleged infertility of gay men or celibates but also to the infertility of heterosexual couples, introduces a right to derogate from universal human rights by creating, for these categories, an exception : the right to exploit others, in this case women, and to buying children.
Women who bear children for wealthy couples are then equivalent to slaves. Article 1 of the Slavery Convention of 25 September 1926 defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. Surrogacy is thus very similar to modern slavery. The clients acquire a legal right to the woman’s body, since they are using her and her body during the pregnancy.
Slavery has been universally abolished and its abolition is celebrated on the International Day for the Abolition of Slavery, which commemorates the adoption by the United Nations General Assembly of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others [A/RES/317(IV)] of 2 December 1949. So what would it be like today if slavery had been regulated, as surrogacy tends to be today?
V. A social practice and not medical breakthrough
Considered by some as a medical breakthrough as an assisted medical reproductive technology, this fallacious view of surrogacy hides a social practice which should be evaluated in terms of human rights.
Reproductive surrogacy is a social practice that uses one medical procedure (either artificial insemination or in vitro fertilization) to meet a social demand. Surrogacy covers different steps through which the surrogate mother must pass : recruitment, signing of the contract, IVF, psychological “help” intended to help the surrogate mother dissociate herself from her pregnancy, monitoring the pregnancy, delivery of the child, relinquishing parentage with the child she has carried. This process is an industry that involves a considerable number of stakeholders : brokers, clinics, laboratories, lawyers, psychologists, accommodation for both the clients and the surrogate mother… . These acts and actors cannot, for the most part, be considered as medical, but as commercial practices that offer two products: a child and its parental link to the clients;.
Reproductive surrogacy is presented as a medical answer to infertility, but it cures neither the clients, nor the surrogate mother who is perfectly healthy. Categorizing surrogacy as a medical practice is in fact an underhand way for the industry to hide its true nature: a system of exploitation of women for their reproductive capacities. Leading a woman with no desire for a child to get pregnant and then handing over the child to third parties cannot be considered a medical practice.
The main argument in favor of regulating surrogacy is the doctrine of fait accompli, where the existence of the practice calls for a legislative framework. This means refusing to question the very nature of this practice, the fact that some human beings can be commodified. As in prostitution, a system of sexual exploitation, surrogacy would not exist without clients.
VI. Reproductive Surrogacy : many concepts to mask its violence
Many concepts apply to reproductive surrogacy and contribute to blur the real exploitation of women, or even to embellish it, while the final objective of all surrogacy is to buy a child.
The most widespread is commercial surrogacy, where the child is obtained through a contract in exchange for a fee. As the United Nations Special Rapporteur on the sale of children and sexual exploitation of children reminds us : “surrogate motherhood is the sale of a child when the surrogate mother or a third party receives remuneration or any other benefit in return for the transfer of a child”.
Similarly, regulated or supervised surrogacy refers to a restrictive approach to surrogacy where national legislation authorizes the practice, defines the access conditions, the transfer of parentage, the compensation of surrogate mothers, etc. Regulated surrogacy is often called “altruistic” or “ethical” surrogacy. But whatever the adjustments made by the law, it is not acceptable that it is the law that organizes the commodification of children and the access to women’s bodies. The law then becomes an accomplice to the procreative exploitation of women. By experience, we know that the restrictions imposed by the law will be progressively swept away under the pressure of the market as in Greece or in the State of New York where the so-called regulated surrogacy has progressively evolved towards commercial surrogacy.
Finally, the concepts of altruistic, ethical or solidarity-based surrogacy are in reality different forms of commercial surrogacy and not virtuous alternatives. They are all part of commercial practices organized by several stakeholders operating in a commercial way, never questioned, while financial restrictions are only imposed on the surrogate mother alone. The surrogate mother does not receive any remuneration but only a “compensation” to cover the costs of the pregnancy (as in the United Kingdom and Portugal). These hypocritical notions are put forward mainly to reassure potential clients and their conscience. However, it does, in no way, protect the surrogate mother from the physical and psychological risks involved.
VII. Consent is not a valid argument for legitimizing surrogacy because « giving in is not consenting »
Surrogacy advocates argue that surrogate consent in ABM is linked to women’s individual autonomy and bodily freedom. However, this liberal fiction views consent as a social, rather than a legal, concept. In reality, consent is applied in commercial surrogacy contracts to legitimize the use of the other party as an object. However, because the surrogate mother and the unborn child are not objects, it is important to consider the “personal right of actual species” that does not allow a person to be treated as a mere means. According to Carol Pateman, consent is not a criterion of legitimacy when the contract itself is an expression of a system of sexual exploitation, as is the case with marriage, prostitution and surrogacy contracts. In surrogacy, the obligations imposed on the surrogate mother are obtained without real reciprocity from the other party, turning her agreement into a perverted commercial consent.
For human dignity :
Consent in the field of surrogacy cannot be considered in a simple commercial contract, because it implies the involvement of fundamental rights such as the right to dignity, physical integrity and non-discrimination. Therefore, the consent of surrogate mothers cannot be considered as a simple question of individual autonomy, but must be assessed in the broader context of human rights and the protection of vulnerable persons, including unborn children. Surrogacy violates human dignity by disposing of an unborn human being. Consent cannot be given on something that does not belong to us, according to Article 16 of the French Civil Code. Even if a woman consents to the practice, this does not justify it, as human rights and dignity are violated. The notion of consent is presented as an embodiment of individual freedom that transforms the unity of the body into a parcellisation at the whim of others. The practice of surrogacy is a disembodiment of the person himself, where bodies (persons) become instruments of service at the disposal of others. The companies that promote the practice seek to erase the commodity nature of women and children in favor of offering « services ». Whereas what is at stake with surrogacy is the production and delivery of a child.
- We cannot agree to hand over to a third party a good that we do not own. Also in the case of surrogacy, we cannot consent to the handing over of a human being to another person, because a human being cannot be appropriated.
- One cannot consent to be subjected to violence, violence that is expressly mentioned in the surrogacy contracts.
- One cannot consent to give up all one’s fundamental rights, temporarily or permanently, which is required by contract from all surrogate mothers.
For all these reasons, the notion of consent is irrelevant in the field of surrogacy and cannot be evoked to justify or organize this practice, which is contrary to human rights.
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Ultimately, surrogacy, in any form, infringes all ethical boundaries, tramples on human rights and instrumentalizes human solidarity, commodifying women and children for the benefit of a globalized market of several billion dollars.
Regulating is to make socially acceptable something that cannot be : organizing access to women’s bodies and the potential commodification of all children.
Thank you for reading, we remain at your disposal for any further information.
Best regards.
Marie Josèphe Devillers Ana-Luana Stoicea-Deram Berta O. Garcia
Co-presidents of the Coalition for the Abolition of Surrogate Motherhood