This article is the third in a series on global surrogacy by the authors published by RH Reality Check. Links to the previous articles on Guatemala and on India can be found in the text below.
Opening a conversation about the intersection between global surrogacy and trafficking requires that, regardless of the alarming practices outlined in previous articles (on India and on Guatemala), we must acknowledge that there are no internationally-accepted standards for regulating surrogacy practices. Among nations of the Global South, only India has sought to codify practices in the form of the Assisted Reproductive Technology (ART) [Regulation] Bill 2010, which is still in draft form. While this new law may work out some practicalities, realistically women in India will remain vulnerable to abuse.
In India, both women’s bodies and reproduction are constrained by the importance placed on bloodlines, the traditional value put on childbirth in addition and an emphasis on women’s “purity.” Surrogate mothers are, inevitably, at risk of social stigma. For married women engaging in surrogacy, many questions arise: How does surrogacy affect the marriage? Existing biological children? Many clinics, for example, require that the surrogate abstain from sexual relations with her husband during the pregnancy. Since surrogacy requires absence from family life as women live in pregnancy dormitories or camps, research on the cost-benefit analysis and impact on Indian family systems is needed. This includes the impact of absence on the surrogate’s existing children.
More research also is needed in other nations where these practices have been quietly occurring. This includes the former Soviet Union, which is infamous for sex trafficking of women. Called Natashas, women’s bodies are sold internally and on the global marketplace for sex trafficking, and it seems inevitable that organized crime will shift into the surrogacy market and sales of women’s reproductive capacity. The proximity of Guatemala, also known for serious human trafficking problems, to the USA provides an added “value,” making global surrogacy even more affordable to US citizens. Guatemala’s lack of civil society and extreme poverty makes it ripe for entrepreneurs, including those who have previously worked in the inter-country adoption sector. We predict that Guatemala will become a new battleground on this issue and given the history of reform in the nation, it is likely that legal regulation will take years to institute.
International bodies such as the United Nations have seriously considered human rights abuses related to human reproduction. But the intersection between human trafficking and reproduction in the form of surrogacy has largely been overlooked in regard to fertility technology and the demand for infants. The June 2010 Hague Conference on inter-country adoption explored this issue as an unintended consequence of worldwide adoption reform to prevent child sales and theft.
Taking on this lucrative industry, netting well over a billion dollars annually on a global level, will be a challenge as it booms. New investigations and progressive discourse about human rights in this age of reproductive technology will be essential and must begin immediately. Emergent issues include fears about highly efficient baby farming and the rights of self-determination for women who work with little economic opportunity or rights in their communities. Some, like Dr. Nayna Patel, the Director of the Akanksha Infertility Clinic in India will argue that this is a form of work for a fair wage, with a woman earning far more in nine months than the average impoverished woman could earn in several years. This argument is much like the one used for prostitution and a woman’s right to the marketplace and exercise of free will Discourse about the various perspectives is important, but overlaying the phenomena on extreme poverty requires us to proceed with strict controls and human rights considerations. To do otherwise is dismissive of fundamental social justice principles of equity and fairness.
While some may call this science fiction, thinking in the future tense is essential because inevitably the loopholes in US immigration policy and state-level adoption laws leaves great vulnerability for human sales. For example, an impoverished woman in Guatemala could be fertilized with a highly desirable egg (i.e. from an Ivy League college student in the USA) and the sperm of a US citizen. If a parent or adoption representative is one of the unscrupulous persons involved in human sales, he/she could feasibly bring the child back into the USA as a citizen (given the lack of Federal surrogacy regulations in the US) and then immediately relinquish the child to the U.S. private adoption system. This could be done repeatedly with little oversight beyond immigration documentation. Because the US-private adoption system is notorious for high fees for desirable infants, especially in states where there is little regulation, a new form of child sales could prevail. Again, call it science fiction, but the lengths to which individuals and couples have been willing to go for a healthy infant have been extraordinary. All of this could easily be accomplished for $50,000 to $60,000 with the assistance of a handful of adoption attorneys that are known to be aggressive in serving the marketplace. We already know that many individuals and couples have been willing to pay such (or more) for a healthy Caucasian infant that has not been exposed to substance abuse in utero.
The legal intersection between global surrogacy and existing human trafficking laws is weak at best, and it might be difficult for a perpetrator of the types of human trafficking scenarios mentioned above to be prosecuted under current human trafficking legislation. The U.S. Trafficking Victims Protection Act (TVPA) protects victims of labor trafficking and certainly coerced surrogacy might be viewed as a form of labor trafficking, however, no protection to the trafficked infant in our “science fiction” scenario would be afforded under current US trafficking legislation. Furthermore, the current federal trafficking law would not be sufficient to prosecute the trafficker in this same scenario. The UN Trafficking Protocol, also known as the Palermo Protocol, might allow for protection to a surrogacy trafficking victim, because the protocol loosely defines human trafficking and includes deception, the abuse of power, or having control of another person for the purpose of exploitation, in its trafficking definition. However, it is up to individual nations, who are signatories of the Protocol, to develop their own specific definition of trafficking within the Palermo Protocol framework, and to pass their own federal trafficking legislation. What is needed is for governments to explicitly name global surrogacy as a potential form of human trafficking, similar to the mention of organ smuggling, which is named as a type of human trafficking in the UN Trafficking Protocol. Minimally, governments need to be aware that there is the potential for serious human trafficking offenses within the emerging global surrogacy marketplace.