The end of cross-bor­der sur­ro­gacy?

Financial Mirror (Cyprus) - - FRONT PAGE -

The global trade in ba­bies born through com­mer­cial sur­ro­gacy is slowly be­ing shut down. In­dia, Nepal, Thai­land, and Mex­ico have in­tro­duced mea­sures that would limit or ban for­eign­ers from hir­ing lo­cals as sur­ro­gate moth­ers. Cam­bo­dia and Malaysia look likely to fol­low suit.

In an in­dus­try in which the con­ven­tional wis­dom has long dis­missed ef­forts to “buck the mar­ket,” this is a sur­pris­ing – and wel­come – de­vel­op­ment. Un­crit­i­cal pro­po­nents of biotech­nol­ogy tend to cel­e­brate the fact that tech­no­log­i­cal break­throughs have out­paced govern­ment reg­u­la­tions, ar­gu­ing that this has al­lowed sci­ence to progress un­fet­tered. But the de­ter­mi­na­tion of coun­tries that have his­tor­i­cally been cen­ters of com­mer­cial sur­ro­gacy to stop the prac­tice un­der­scores the naiveté of that po­si­tion.

It is no co­in­ci­dence that the coun­tries crack­ing down on cross-bor­der sur­ro­gacy are those in which the prac­tice takes place. The ar­gu­ment that all par­ties – sur­ro­gate moth­ers, ba­bies, and com­mis­sion­ing par­ents – ben­e­fit from the trans­ac­tion has not with­stood scru­tiny.

Con­sider In­dia, where the sur­ro­gacy in­dus­try is val­ued at $400 mil­lion per year; un­til re­cently, some 3,000 fer­til­ity clin­ics were op­er­at­ing in the coun­try. And yet, as wor­ries have mounted that com­mer­cial sur­ro­gacy leads to hu­man traf­fick­ing and the ex­ploita­tion of women, In­dia’s au­thor­i­ties have con­cluded that the eth­i­cal con­cerns out­weigh the eco­nomic ben­e­fits.

In­dia has yet to fi­nalise its anti-sur­ro­gacy leg­is­la­tion. But the way the de­bate has evolved since the first bill was pro­posed in 2008 il­lus­trates the rapid change in how the prac­tice is viewed. The ear­li­est drafts of the leg­is­la­tion ac­tu­ally en­cour­aged com­mer­cial sur­ro­gacy, man­dat­ing that moth­ers em­ployed as sur­ro­gates sur­ren­der their ba­bies. Given that un­der com­mon law, the woman who bears a child is legally its mother, this pro­vi­sion would have been rad­i­cally pro­sur­ro­gacy. Since then, how­ever, the fo­cus of the dis­cus­sion has shifted, as un­sa­vory – and some­times bizarre – aspects of the trade have come to light. For ex­am­ple, in one case, Ger­many – where sur­ro­gacy is il­le­gal – re­fused to ac­cept twin chil­dren of a Ger­man father born to an In­dian sur­ro­gate, while In­dia de­murred at giv­ing the father an exit visa so that he could re­move the chil­dren.

In Oc­to­ber 2015, In­dia’s Min­istry of Health and Fam­ily Wel­fare, un­der pres­sure from the coun­try’s Supreme Court, de­clared that in­ter­na­tional com­mer­cial sur­ro­gacy was un­con­sti­tu­tional. The Coun­cil for Med­i­cal Re­search sent out a no­ti­fi­ca­tion to all clin­ics, in­struct­ing them not to “en­ter­tain” for­eign cou­ples – in­clud­ing non-res­i­dent In­dian cit­i­zens and peo­ple of In­dian ori­gin. The next month, the Depart­ment of Health Re­search banned the im­por­ta­tion of em­bryos to be im­planted into sur­ro­gate moth­ers, mak­ing the pro­ce­dure nearly im­pos­si­ble.

To be sure, In­dia is not the only coun­try in­volved in cross­bor­der sur­ro­gacy. In­deed, In­dian reg­u­la­tions lim­it­ing sur­ro­gacy ser­vices to het­ero­sex­ual cou­ples who have been mar­ried for at least two years had al­ready caused some of the trade to re­lo­cate, most no­tably to Thai­land.

But there, too, at­ti­tudes have been shift­ing, es­pe­cially af­ter an Aus­tralian cou­ple re­fused to take re­spon­si­bil­ity for a baby born through sur­ro­gacy who was di­ag­nosed with Down Syn­drome. The cou­ple did take the boy’s twin sis­ter, how­ever, mak­ing it clear that what they had paid for was not the “ser­vice” pro­vided by the mother, but the chil­dren them­selves – or rather, just the one who met their re­quire­ments. As a re­sult, it has be­come harder to deny that cross-bor­der sur­ro­gacy is akin to sell­ing ba­bies.

By Novem­ber 2015, about a dozen In­dian and Thai clin­ics had shifted op­er­a­tions to Ph­nom Penh. That de­vel­op­ment might at first seem to sup­port the ar­gu­ment that the trade can never be stamped out – only re­lo­cated. But, so far, the num­ber of clin­ics that have set up shop in Cam­bo­dia is small. And some re­ports in­di­cate that Cam­bo­dia’s in­te­rior min­istry in­tends to treat com­mer­cial sur­ro­gacy as hu­man traf­fick­ing, with a po­ten­tial prison sen­tence.

Nepal, too, has de­clared a mora­to­rium on sur­ro­gacy, af­ter some in the coun­try de­nounced the prac­tice as ex­ploita­tive. In April 2015, af­ter an earth­quake struck Kath­mandu, Is­rael evac­u­ated 26 ba­bies born through sur­ro­gacy, but left their moth­ers – most of whom had crossed over from In­dia – stranded in a disas­ter zone. Malaysia also seems on track to ban the prac­tice. And in Mex­ico, the state of Tabasco, the only ju­ris­dic­tion in the coun­try where sur­ro­gacy is le­gal, has re­stricted it to Mex­i­can het­ero­sex­ual mar­ried cou­ples in which the wife is in­fer­tile. Dur­ing the leg­isla­tive de­bate, Deputy Veron­ica Perez Ro­jas de­nounced sur­ro­gacy as a “new form of ex­ploita­tion of women and traf­fick­ing.”

There is the risk, of course, that the on­go­ing in­ter­na­tional clam­p­down will drive com­mer­cial sur­ro­gacy un­der­ground. But that risk only un­der­scores the need for clear and strict leg­is­la­tion. Even if some would-be par­ents are will­ing to break the law, the vast ma­jor­ity will be de­terred by the penal­ties, in­clud­ing the risk that they will not be al­lowed to keep the baby or that they will be un­able to ob­tain an exit visa for it.

The pro-sur­ro­gacy camp em­pha­sizes the ben­e­fits of the prac­tice, which in­clude in­creased re­pro­duc­tive choice and the ac­com­mo­da­tion of sex­ual plu­ral­ism. But while th­ese may be gen­uine and im­por­tant con­sid­er­a­tions, they can­not be placed above the need to pre­vent the ex­ploita­tion of some of the world’s most vul­ner­a­ble women.

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