The text written by Berta O. Garcia was forwarded to Reem Alsalem, United Nations Special Rapporteur on violence against women and girls.
Definition of Surrogacy
Firstly, it is necessary to define what surrogate pregnancy is – or whatever name is used to refer to this practice – in order to clarify that it is not in any way a technique of assisted human reproduction, but rather a social practice consisting of hiring a woman, with or without remuneration, to gestate and give birth to one or more children, whether conceived with her own eggs or not, with the aim of handing them over to one or more persons who wish to be designated as their parents, obtaining the transfer of parenthood to their name and erasing the mother who gave birth to them.
Human trafficking is legally defined in the Palermo Protocol
Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of fraud, of deception, of abuse of power or of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. The consent of a victim of human trafficking to any form of intentional exploitation described above shall not be taken into account when any of the means set out above have been used.
This legal definition of human trafficking is introduced in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, a protocol to the United Nations Convention against Transnational Organised Crime. Popularly known as the Protocol against Trafficking in Persons or the Palermo Protocol, it is one of three protocols adopted by the United Nations in Palermo, Italy, in 2000. It entered into force on 25 December 2003 and by 2022 had been ratified by 180 States Parties.
The Protocol against Trafficking in Persons is the first legally binding international instrument for States Parties and the first international legal text to establish a definition of trafficking based on conduct, means and purpose.
Trafficking in persons involves conduct such as recruitment, transportation, transfer, harbouring or receipt of persons in a vulnerable situation, and means such as the threat or use of force or other forms of coercion, fraud, deception, abuse of power or the receipt of payment or benefits, for the purpose of obtaining consent from a person for the purpose of exploitation. Consent given by the victim is irrelevant.
Deception in the recruitment of women for reproductive exploitation in surrogacy
Surrogate pregnancy is human trafficking insofar as all women are recruited to be “surrogate” mothers through the following deception:
- That they are not the mothers of the children they bring into the world.
- That the children they give birth to are not their own.
- That, as they are not the mothers of these children, they do not sell or give them away, but only return them to their parents (the principals, in reality) once they have given birth after completing the gestation process.
- That the process they are going to undergo is an assisted human reproduction technique, thereby giving the practice a biased air of authority. Although ART may be involved in this process, such as in vitro fertilisation, artificial insemination or embryo transfer, surrogacy as such, with its many actors outside the medical field, cannot be classified as
The recruitment of women through deception for the purpose of reproductive exploitation is intrinsic to surrogacy or any euphemism used to describe this social practice, which consists of making a fertile woman pregnant so that she can give her newborn daughter or son to those who have commissioned her to do so through a verbal or written contract, whether or not it is remunerated and whatever method is used to make her pregnant: natural or artificial insemination or in vitro fertilisation and embryo transfer.
If it were not for this deception in recruitment, there would be no surrogacy.
If it were not for this deception, there would be no industry.
This deception is systemic in surrogacy.
Because very few women would sell or give away their children if they were aware that they were their mothers.
Women are deceived and convinced that, by not involving their genetic material, they are not the mothers of the son or daughter they give birth to and that for this reason they have to hand them over to the commissioning parents, who are the ones who have provided their own gametes, donated or purchased, to create the embryo that is transferred to the surrogate mother.
This fiction is based on a confusion between biology and genetics: pregnancy is a biological process, so the pregnant woman is the biological mother and the sperm donor undoubtedly has a genetic link to the person born, but, as he is not involved in the pregnancy, it is misleading to designate him as the biological parent. It is even more erroneous to extrapolate this confusion to women, considering them to be biological mothers only if they have contributed their genetic material.
Why should they then renounce parentage if, as is claimed, they are not the mothers of the children? All surrogate mothers, regardless of the legislation or model (commercial or altruistic), have to renounce maternal filiation before or after giving birth – because in all countries of the world maternal filiation is determined by childbirth – and to be the holder of the rights and obligations that come with parental authority, as well as maternal and filial social benefits, such as maternity leave or maternity benefits, reduced working hours for breastfeeding mothers and other tax benefits.
Since in vitro fertilisation and embryo transfer proved effective in the late 1970s and became widespread as assisted reproduction techniques, they have served two conflicting purposes:
- To reaffirm the association between conception, pregnancy and childbirth with motherhood. To tell women that they are indeed mothers of the children they bring into the world, even if they do not carry their genetic material, since motherhood is determined by childbirth, which is indisputable in any country in the world. This is what fertility clinics tell patients with fertility problems who come to them on their own seeking treatment.
- To dissociate conception, pregnancy and childbirth from motherhood, telling surrogate mothers that they are not the mothers of the children they bring into the world because they do not carry their genetic material and that they must renounce their filiation and the child and transfer it to the commissioning parents. This is what agencies and clinics tell surrogate mothers and their clients, who will be recognised as parents, even if their only contribution is a sperm sample, their own eggs, donated or purchased eggs, signing a contract and putting money on the table.
Coercion in the recruitment of women for reproductive exploitation
Surrogate pregnancy is human trafficking insofar as all women are coerced into becoming surrogate mothers. The sexist stereotype that assumes women have an innate inclination to sacrifice themselves for others and educates them to do so is a factor that makes them vulnerable. Coercion can operate on a psychological, cultural, family, emotional, social, religious and, above all, economic level, since remuneration or compensation is an important incentive, if not the most important, when it comes to consenting to become a surrogate mother.
Women’s main vulnerability is economic. The feminisation of poverty is global, with women suffering most from unemployment, precarious contracts, temporary and part-time employment and the wage gap, and it is mainly women who bear the burden of unpaid and care work, with the aggravating consequences of multidimensional poverty, which is even greater in countries immersed in armed conflict, such as Ukraine and Russia, both countries where surrogacy is legal. In these conditions of economic and social precariousness and vulnerability, many women are the perfect victims of trafficking for sexual and reproductive exploitation in exchange for payment or even a promise of payment that is not always fulfilled. This recruitment of vulnerable women operates without any restrictions on the internet, as is the case with the thousands of recruitment groups for surrogacy that exist on Facebook.
Multidimensional poverty is higher among women than men on all five continents—27.4% of women in Latin America and the Caribbean live in poverty—and has worsened disproportionately since the COVID-19 pandemic. The ability to exercise autonomy over sexual and reproductive health is inversely proportional to poverty: the greater the poverty, the less sexual and reproductive autonomy.
The transfer of women for reproductive exploitation
In addition to the deception and coercion inherent in the recruitment of women for reproductive exploitation, the transfer of women adds a significant ingredient to trafficking.
In 2021, the International Coalition to Abolish Surrogate Motherhood (CIAMS), together with the European Network of Migrant Women (ENoMW), undertook a study of cases documented in the media in 72 countries, of which Greece, Ukraine, Mexico and India were the subject of more in-depth analysis. Despite the considerable amount of information gathered, it was found that there were very few academic studies or official reports on the transfer of women in the context of surrogacy, making the results of the CIAMS and ENoMW research highly relevant: “Migrant women and reproductive exploitation in the surrogacy industry. Joint investigation by ENoMW & ICASM”
We have found that there are migrant women, sometimes with personal plans other than surrogacy, who are recruited as surrogate mothers in the destination country, as well as women who are initially recruited to be used as surrogate mothers in their own country but are then transferred to another country, sometimes in the context of mafia-like human trafficking practices or to give birth in the country of the commissioning parents, for their convenience. Sometimes this is done to reduce the cost of the surrogacy process, to circumvent prohibitive legislation or to carry out medical practices that do not exist in the country of origin. Whether they emigrate to another country with or without the intention of becoming surrogate mothers, whether they migrate once they are pregnant for the surrogacy industry, or whether they are recruited at their destination, these women have a very similar profile, with the vast majority, if not all, finding themselves in a situation of great economic and social precariousness and vulnerability, exacerbated by migration.
This study also highlights a specific mode of transfer suffered by these women: they must leave their family environment to undergo all the imposed treatments, in particular embryo transfer and childbirth, which is too often performed unnecessarily by caesarean section. Far from their everyday and family environment, they are more vulnerable.
These women are victims of human trafficking, forced pregnancies in many cases, and physical and psychological violence, to which must be added the highly probable abandonment to their fate once they have handed over their babies in the destination country. These women are also victims of fraud, as they often do not receive the promised or agreed remuneration and are at serious risk of becoming victims of other types of trafficking, such as sexual exploitation or exploitation for begging.
Fraud in the recruitment of women for reproductive exploitation
Many surrogacy agencies use fraudulent advertising to recruit women. On their websites and social media, such as Facebook or Instagram, they promise very substantial payments that do not correspond to reality or fail to mention that the amount includes twin pregnancies, caesarean sections or the loss of the uterus.
Confinement of women recruited for reproductive exploitation
The reception of women, often in confinement or semi-confinement, is another ingredient that makes surrogacy human trafficking. This usually occurs in the third trimester before delivery, but cases have also been documented throughout the pregnancy or after delivery, with the aim of controlling the woman while the registration of the newborn and the necessary authorisations to take the child out of the country are being processed. Only when the formalities are completed does the surrogate mother receive the full payment and regain her freedom. The vulnerability of these women is increased by their state of pregnancy or postpartum, often following a caesarean section.
Women used as surrogate mothers have no autonomy or freedom of movement. They have to adhere to strict schedules and curfews. There is no need to go back to the women’s farms in India, Cambodia, Nepal or Cancún (Mexico) confinement also occurs in Ukraine, where pregnant women are taken to Kiev and housed in apartments belonging to the agencies themselves in overcrowded conditions and subjected to schedules that they are obliged to respect. In general, and in any country, surrogacy contracts include clauses on the radius of free movement that the pregnant woman cannot exceed without express authorisation.
In addition to these imposed living conditions, women recruited to be “surrogate” mothers suffer restrictions on their sexual freedom, are subjected to surprise checks for tobacco, alcohol and drug use, and are often put on diets to suit the client’s tastes. They lose their autonomy as patients and must undergo medical tests and checks imposed by the agency and clients, and are also obliged to share reports and results.
Since 2024, surrogacy has been considered a crime related to human trafficking punishable throughout the European Union
On 23 April 2024, the European Parliament approved the amendment to Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, which includes forced marriage, illegal adoption and the exploitation of surrogacy in the context of offences related to human trafficking punishable throughout the European Union, on the same footing as the exploitation of prostitution or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, exploitation for criminal activities or the removal of organs.
The wording chosen, “exploitation of surrogacy,” is confusing and could imply that there is a form of surrogacy that does not exploit women and another that does, with the latter being the one that should be prosecuted as human trafficking. The text of the Directive states literally: “With regard to trafficking for the purpose of exploitation of surrogacy, this Directive targets those (whether natural or legal persons) who coerce or deceive women into acting as surrogate mothers.”
The new European Directive against trafficking in human beings3only takes into account recruitment and deception in the recruitment of women and overlooks the other behaviours and means for reproductive exploitation outlined here. Even so, in light of the new Directive, all surrogacy without exception must be classified as human trafficking, since coercion and deception are always present in surrogacy; two behaviours that make recruitment trafficking, in the same way as coercion, force, transfer, confinement, fraud, abuse of power, the victim’s vulnerability or the receipt of payments or benefits. And since both behaviours – coercion and deception – are systemic, intrinsic and inherent to surrogacy in any of its forms, it must be prosecuted as a form of trafficking and a serious crime that constitutes a grave violation of the fundamental rights of women and children, with several underlying causes, such as poverty, inequality, lack of viable employment opportunities or social support, and discrimination, which make women and children particularly vulnerable to trafficking. And, of course, gender, since the specificity of the phenomenon of trafficking varies according to gender and it is always women who are used as surrogate mothers.
The legislation of each Member State of the European Union that must be enacted pursuant to this Directive will have to demonstrate that the fight against trafficking is a priority for the Union and the Member States, actively committing themselves to prohibiting and prosecuting surrogacy in all its forms and to supporting victims, regardless of their country of origin. At the international level, the approach must be similar: a practice that is in itself a cumulation of violence and rights violations cannot be given a veneer of rights, and the only solution is its abolition through prohibition and the prosecution of the crime.