newborn baby ankle with hospital tag

Why is surrogacy banned in so many countries?

With celebrities such as Kim Kardashian, Elton John and Tyra Banks all speaking out about their own use of surrogate mothers to become parents, the concept of surrogacy has provoked much discussion in the media in recent years. Opinion pieces for and against have appeared in newspapers and magazines, some arguing that the process is profoundly unfair on the surrogate mother and tantamount to the commodification of the human body. Meanwhile, others argue that it's a much-needed lifeline for same-sex couples and prospective parents with health issues who would otherwise not have the opportunity to have a child that is biologically theirs.

But while the subject may be getting more attention, surrogacy itself is nothing new - and having first been legally established in the 1970s in the US, in the past decade, demand has soared across the world. In fact, more than double the number of babies were born through surrogacy in America in 2014 compared to 2007. In the UK, the figure jumped by eight times between 2007 and 2016. Yet, despite this growing popularity, in many countries across the world, the practice is illegal. So why is it banned? And does that stand to change anytime soon?

First things first, where can you use a surrogate mother? Well, at present, there are just a handful of countries in the world where commercial surrogacy - in which the surrogate receives money - is legal. This includes Iran, Russia and some US states. In other countries, such as the UK, most of Australia and other US states, altruistic surrogacy - where expenses are covered but a financial payment is not made - is legal.

baby holding adult's finger Credit: Pexels/ Wayne Evans

Many countries outlaw some form of surrogacy over concerns for the welfare of surrogate mothers. In particular, commercial surrogacy has recently been cracked down on in both India and Nepal, with the latter now allowing only infertile married couples to seek the service, amid concerns that local women were being exploited and their wombs used as commodities. Among government concerns was the fact that poor and often illiterate women were frequently being tempted by big paychecks, without having the capacity to understand the contracts placed in front of them. There were also concerns regarding the overuse of caesareans and failures in post-partum care. 

In other countries, bans on surrogacy are not only driven by fears that mothers may be put at risk of exploitation but children too. In 2015, Thailand banned commercial surrogacy involving foreign nationals in the wake of a scandal involving a 24-year-old Japanese billionaire who fathered 16 children with 10 different surrogate mothers, each of whom had been paid thousands of dollars. The man in question had been hunting for more surrogate mothers to produce children, reportedly having told one clinic that he wanted 1,000 children. While he stated that he only wanted a big family, his actions sparked worries about his motives and the possibility of surrogacy being exploited for the purposes of human trafficking. In the end, a Thai court awarded him custody of all of the children. However, the children are still in government care homes and he has never been to see them.

But it is not only developing countries that ban surrogacy. In Bulgaria, France, Germany, Italy, Portugal and Spain, the practice is illegal in all forms, as it is in some US states such as Michigan. In countries such as Italy, the reasons for this stem partly from laws based on ingrained religious attitudes, notably from the Catholic Church. In 1987, it declared that surrogacy creates “a division between the physical, psychological and moral elements”, publicly reaffirming this attitude once more in 2004. 

woman holding baby bump Credit: Pexels/Freestocks

However, just as some countries are moving towards stricter surrogacy regulations, others appear to be relaxing theirs. As of January 1, 2019, commercial surrogacy in Washington state will be decriminalised, although it will still be subject to steep regulations. Among the next to make changes could be Canada, which currently allows surrogacy only in altruistic circumstances. In May 2018, a Canadian liberal MP introduced a private member's bill proposing that rules around the practice be relaxed to allow commercial surrogacy. In other countries, public opinion around the matter appears to be changing too. According to figures from research consultancy Ifop, 62 per cent of French citizens now support surrogacy, although President Emmanuel Macron has voiced opposition to the idea. Meanwhile, in Spain, “international surrogacy has overtaken overseas adoption as the choice for would-be parents”, according to national newspaper El Pais.

As Ireland's recent abortion referendum proved, tensions will always run high about an issue as sensitive as the right to create life. But surrogacy seems to be one of those rare issues that breaks all of the rules and unites the most unlikely of people - while some countries are banning it, comparable nations are making it easier than ever. And it's one of the very few topics that is ever likely to bring left-wing feminists and the Catholic Church into line with each other, albeit for different reasons. Looking at the reasons for bans - whether to protect women or to safeguard children - it's clear to see that they're well-intentioned. But at the end of the day, the decision to become a surrogate is as much a choice as becoming a parent is - and there's surely a middle ground to be found.