ABSTRACTInfertility affects more than 7 million American couples. As traditional treatments fail and the costs of hiring a surrogate increase in the United States, transnational commercial surrogacy becomes a feasible alternative for many couples. Infertile couples may opt for this choice after reading enticing Internet advertisements of global medical tourism offering “special deals” on commercial surrogacy. This is particularly true in India where couples from the United States can purchase transnational surrogacy for less than one-half or even one-third of the costs in the United States, including the cost of travel. The majority of surrogate mothers in India come from impoverished, poorly educated rural areas of India. Commercial surrogacy offers the lure of earning the equivalent of 5 years of family income. This multidisciplinary review of the literature suggests that the issue of commercial surrogacy is complex and infl uenced by a number of factors including expensive infertility costs, ease of global travel, and the fi nancial vulnerability of Indian commercial surrogate mothers and their families. Questions are being raised about decision making by the surrogate mother particularly as infl uenced by gender inequities, power differentials, and inadequate legal protection for the surrogate mother. More research is needed to understand commercial surrogacy, especially research inclusive of the viewpoints of the Indian mothers and their families involved in these transactions.Key Words: Commercial surrogacy; Legal and ethical aspects of transnational surrogacy; Medical tourism; Transnational surrogacy.
David M. Frankford, JD, Linda K. Bennington, PhD, RN, and Jane Greene Ryan, PhD, RN
particularly from the perspectives of the Indian surrogate mothers, their families, and their community.
BackgroundIn 2010, the Council for Responsible Genetics published Surrogacy in America (Gugucheva, 2010) and offered terms that defi ne the many different components possible with surrogacy (Table 1). While the term “gestational sur-rogate” is used most commonly in the literature we have chosen to use the language of “surrogate mother” (SM) as a way to infuse a humanistic perspective in a process that can otherwise become driven by technology and fi nancial opportunity.
Surrogacy has been practiced since the biblical era and is infl uenced and shaped by the cultural, traditional, and social norms of a specifi ed people (Palattiyil, Blyth,
Globally more than 186 million women are unable to conceive (World Health Organi-zation, 2015). In the United States more than 7.4 million American women of childbearing age (15–44) have used infer-tility sources and 6.7 million have been unable to get pregnant or carry a baby to term (Centers for Disease Control and
Prevention, 2013). As reproductive technology has ad-vanced since the fi rst test-tube baby in 1978 (Gugucheva, 2010), more women who desire genetically related children have chosen to pursue gestational surrogacy. Gestational surrogacy is prohibitively expensive for most couples, ranging from $50,000 to $250,000 (Shetty, 2012). Based on this review of healthcare, bioethical, and legal literature, numerous factors contribute to the booming commercial surrogacy industry in developing countries with the resources available to meet this need. These resources include infertility technology, willing surrogates, and a well- educated medical com-munity to serve the transnational infertility mar-ketplace. This article provides an overview of the tangled and diffi cult issue of commercial surrogacy including potential unintended outcomes. Commercial surrogacy is a complex issue and worthy of more careful examination,
As the costs of hiring a surrogate increase in the United States, transnational commercial surrogacy has become a feasible alternative for many couples.
In 1992, Georgia, formerly of the Union of Soviet Social-ist Republics, deemed surrogacy legal with the caveat that the SM doesn’t have parental rights to the child she car-ried. The Ukraine passed similar laws in 2002. Israel is the only country that not only allows, but funds surro-gacy through the 1996 Embryo Carrying Agreements Law. This law regulates surrogacy according to religious law at the state level with approval and oversight of every surrogate contract. Within the United States, California has the most liberal laws regarding surrogacy: single men; single women; heterosexual couples; and gay, lesbian, bi-sexual, and transsexual couples can contract a surrogate and obtain parental laws. Gugucheva (2010) provides a review of surrogacy laws in the United States.
India: An Open Global Surrogate MarketplaceDue to low costs, access to infertility technology, and an abundance of impoverished women willing to become commercial surrogates, India has moved into the infertil-ity medical tourism marketplace (Jaiswal, 2012; Pande, 2010a; Rotabi & Bromfi eld, 2012; Sarojini, Marwah, & Shenoi, 2011). The fi rst surrogate baby in India was born on June 23, 1994. In 2004, surrogacy began receiving ex-tensive international attention when an Indian woman gave birth to a surrogate child for her daughter in the United Kingdom (Surrogacy India Guide, 2012). In 2007, a couple from the United States was interviewed on the Oprah Winfrey television show, which generated more at-tention about surrogacy in India (Surrogacy India Guide).
Often, surrogacy and related infertility treatments in developed countries such as the United States are not covered by health insurance, making the prospects of a baby prohibitively expensive to many couples. The costs of surrogacy in India are one-third to one-half of those in developed countries and the required high technology is available; therefore, it has become a viable option (Jaisw-al, 2012; Pande, 2010b; Shetty, 2012). India has become a preferred destination for couples in the United States and other developed countries who are seeking fertility services (Rennie & Mupenda, 2008; Saravanan, 2013).
It is estimated that surrogacy generated more than $400 million a year from the 3,000 fertility clinics across India in 2012 (Bhalla & Thapliyal, 2013). Commercial surrogacy in India has become a viable industry for the same reasons outsourcing in other industries has been successful: a wide labor pool working for relatively low rates (Bhalla & Thapliyal). This global commercializa-tion of gestation raises a number of questions about the extent to which Indian women are being exploited by wealthy foreigners who are willing to pay the compara-bly low costs of commercial surrogacy available in India (Gupta, 2012; Jaiswal, 2012; Pande, 2010b; Saravanan, 2013). Perhaps this is a manifestation of exploitation of basic human rights to suit individualistic motives of ei-ther the wealthy from developed nations or transnation-al businesses prospering from the commercialization of infertility services (Pande, 2011; Rennie & Mupenda,
Sidhva, & Balakrishnan, 2010). This complex interplay among sociocultural, legal, and bioethical factors has re-sulted in a lack of consistent international gestational surrogacy practice, with commercial surrogacy prohibit-ed in many countries. India is the prominent exception (Jaiswal, 2012; Pande, 2010b).
The legality of surrogacy varies widely between coun-tries and in some cases within countries from state to state (i.e., the United States, Australia, and Mexico) (Ar-mour, 2012). France, Iceland, Germany, Italy, China, and Japan have legislative provisions that prohibit both altruistic (as a favor with no fee) and commercial (pay-ment of a fee involved) surrogacy. By contrast, the Neth-erlands, Belgium, Denmark, United Kingdom, Greece, Norway, Spain, Sweden, Switzerland, and Canada pro-hibit commercial surrogacy but permit altruistic surrogacy.
Table 1. Surrogacy Terms and Defi nitionsBiologic mother/genetic donor:A woman who contributes her egg to reproduce the resulting child.
Biologic father/genetic donor:A man who contributes his sperm to reproduce the resulting child.
Intended parent/commissioning parent:The individuals who intend to become the legal parents of the child born of a surrogacy arrangement. They may or may not contribute DNA and be biologically linked to the expectant child.
Traditional surrogate mother:The woman who donates her DNA (egg/ova) and gestates (carries the fetus) the pregnancy for someone else.
Gestational surrogate mother/carrier:The woman who gestates (carries the fetus) until it is born.
Traditional surrogacy:Traditional surrogacy is an agreement by a woman to donate her egg, along with sperm of the intended father, or possible sperm donation. Most often this can be accom-plished through artifi cial insemination, thereby avoiding the greater costs of in vitro fertilization. This woman is considered the biologic, genetic, and gestational mother and will carry the pregnancy until birth, whereby she relinquishes all parental rights of the child to the intended parents.
Gestational surrogacy:This surrogacy arrangement occurs when a woman undergoes in vitro fertilization to carry a fetus that has no genetic or biologic link to her; in essence, she provides “a womb to rent.” She relinquishes all parental rights as the gestational mother upon birth of the child. The fetus/child could be genetically linked to one, both or neither intended parents if donor DNA was used.
Recreated with information from Council for Responsible Genetics, Gugucheva (2010).
scholarship that strongly suggests some disturbing in-equalities regarding SMs’ treatment and consent (Jaisw-al, 2012; Palattiyil et al., 2010; Pande, 2010a; Saravanan, 2013; Tanderup, Reddy, Patel, & Nielsen, 2015). Many of the Indian SMs are impoverished, illiterate, and from rural backgrounds; therefore, they are easily deceived about what they will experience (Pande, 2010a; Sarava-nan). They may be pressured into surrogacy by husbands and families and receive healthcare during the surrogate pregnancy that is more diffi cult to access when carrying their own child (Jaiswal; Palattiyil et al.; Pande, 2010b). See case example. The SMs are often uninformed about the risks of the procedures, have little or no input into number of embryos transferred or potential fetal reduc-tion, and are required to follow the unilateral decisions made by the infertility clinical doctors (Tanderup et al.). Research suggests that nearly all aspects of the SM’s life are controlled during her pregnancy with diets, medica-tions, and activities monitored by the clinic staff that has employed her (Pande, 2010a, 2010b, 2011). Culturally some Indian communities attach tremendous stigma to commercial surrogacy comparing it to prostitution (Pande, 2010b).
Pande is a sociologist who has done extensive ethno-graphic work with SMs (2010a, 2010b, 2011). She conducted fi eldwork between 2006 and 2008 with 42 surrogates including their husbands and in-laws, eight parents awaiting a surrogate-born child, two surrogate brokers, and two physicians. At the time of her study the median family income was about $60 United States dol-lars (USD) per month; the offi cial poverty line in India during these years was $10 USD per person per month in the rural areas and $13USD per person per month in the urban areas. Of her 42 participants, 34 reported living
2008; Saravanan; Singh, 2014). Current literature suggests that the story is com-plex and does not have easy answers, although exploitation of impoverished women is a signifi cant concern. The growth of commercial surrogacy in In-dia has been infl uenced by the needs of the infertile couples and the ready avail-ability of Indian SMs who are willing to become surrogates to collect what to them is a large sum of money, as well prohibitively ex-pensive treatments, and limited infertility options in the home country of prospective parents (Bassan & Michaelsen, 2013; Inhorn & Shrivastav, 2010; Jaiswal; Palattiyil et al., 2010; Pande 2010a, 2010b, 2011; Ren-nie & Mupenda; Saravanan; Sarojini et al., 2011; Shetty, 2012). Both parties (infertile couple and SM) gain from the transaction; however, the imbalance of power and the lack of adequate knowledge of all the potential risks of commercial surrogacy on the part of the SM enhance the risk of exploitation.
Potential for Exploitation of Indian Surrogate MothersCommercial surrogacy is not merely a matter of a wealthy couple coming to India to hire an SM. There is emerging
In May 2012, Premila Vaghela, an impoverished 30-year-old gestational surrogate, died while waiting for a routine exam. She purportedly fell to
the fl oor having a seizure and was rushed to the hospital for an emergency cesarean. Following the birth of an 8-month fetus, who was transferred to neonatal intensive care unit, the mother was trans-ferred to another hospital where she died. There were no complaints fi led because her family was paid the traditional fee for services as the end product, a baby commissioned by an American family, survived (Desai, 2012).
Case Example
Transnational commercial surrogacy can be purchased in India for less than one-half or one-third of the costs in the United States, including the cost of travel.
Lack of Legal Protection for the Surrogate MothersCommercial surrogacy is enabled by Indian law, which legalizes commercial surrogacy while currently offering SMs very little protection. This laissez faire approach is what continues to make India such an attractive destina-tion for transnational surrogacy (Jaiswal, 2012; Munjal-Shankar, 2014). However, some change may be coming. In response to a domestic surrogacy case, the Indian Council of Medical Research drafted the Assisted Repro-ductive Technology bill, but it has been tabled in Parlia-ment since 2011 (Jaiswal). There are numerous press reports that the 2010 draft bill has been revised but at this writing no revisions have been made public (Out-look, 2015).
Even were the 2010 bill enacted, its protection of SMs remains thin and inadequate; many of its provisions are written to protect only the intended parents. The bill pro-vides that the intended parents must bear the expenses of pregnancy, including health insurance, but it fails to regu-late altogether the amount paid to the SM (art. 34-2.3). It requires that the SM be between the ages of 21 to 35 years, should not have given birth more than fi ve times including her own children, and the bill prohibits embryo transfer more than three times for the same couple (art. 34.5). Nonetheless, the practical effect of these provi-sions is that an SM may receive as many as 15 (5 x 3) embryo implants during her surrogacy “career” (Jaiswal, 2012). The bill is silent on forced fetal reduction or cesar-ean births. To protect the intended parents, the bill pro-vides that the SM relinquishes all parental rights (art. 34.4), with no right to reconsider after birth, and that she must be screened for sexually transmitted illnesses, com-municable diseases, and should not have received a blood transfusion in the last 6 months (art. 34.6), as these may have an adverse bearing on the pregnancy outcome (Sax-ena, Mishra, & Malik, 2012). The bill explicitly provides that surrogacy agreements are binding (art. 34.1) but provides for no legal or psychological counseling for the SM. The bill is designed to facilitate India’s booming business in transnational commercial surrogacy.
Stateless BabiesThere have been instances where babies born via surro-gacy have been in legal limbo without a designated country when there are confl icts about who is the legal mother and/or father (Bhowmick, 2013). For example, a French man who had twins through a surrogate in India was allowed to travel back to France, where surrogacy is
below the poverty line. Pande further reported the ma-jority of the SM’s husbands were either unemployed or worked sporadically and that the money brought to the family through the SMs work (surrogate pregnancy) was equivalent to 5 years of family income (Pande, 2011).
While Pande (2011) has explored the experiences of SMs and their community, others (Jaiswal, 2012; Munjal-Shankar, 2014) raise the issue of the “statehood” of babies born to SMs in India, which is decided by the mother named on the baby’s birth certifi cate. There are three potential mothers: the Indian SM, the commission-ing mother, and the genetic mother. If the gestational egg came from an anonymous donor there are now four po-tential mothers. The commissioning or intended mother’s name is commonly needed for the baby to receive a pass-port and in India the SM legally cannot be genetically related to the baby she is carrying (Jaiswal). Currently in India, the commissioning or intended mother is the one named on the baby’s birth certifi cate. This leaves the ges-tational mother unnamed, increasing her invisibility and marginalization, both of which increase her potential for exploitation (Jaiswal; Munjal-Shankar).
Harrison (2010) described gestational surrogacy as “an increasingly normalized and culturally accepted compo-nent of family formation in the twenty-fi rst-century United States” (p. 261). Ross-Sheriff (2012) in commenting on an Indian movie, Mala Aai Vhhaychy (“I Want to Be a Moth-er” in the Marathi language) stated:
“As a woman of Gujarati Indian background, I felt culturally offended by the surrogacy scenario por-trayed in the fi lm, especially with the gestational sur-rogacy being part of a fi nancial transaction organized by brokers and the medical tourist industry. We Guja-ratis place great signifi cance on motherhood, and motherhood is socially venerated. The human body is sacred, and a child is a gift from God that cannot be bought, sold, or given away. The sale of a child is a moral outrage, and there are social sanctions against the act.” (pp. 126–127).
The perception of many in India is that wealthy for-eigners are exploiting impoverished, poorly educated, often rural women reminiscent of colonialism (Singh, 2014). Pande (2010b) fi ttingly describes their viewpoint “as the ultimate form of medicalization, commodifi ca-tion and technological colonialization of the female body, and as a form of prostitution and slavery resulting from the economic and patriarchal exploitation of women” (p. 293).
Professional nurses can infl uence the complex issues of commercial, transnational surrogacy through education, clinical practice, ongoing research, and an open discussion of the ethical and legal issues involved.
or not Indian women make the decision to become sur-rogates because they feel that they have no other recourse to make money or please their family members who are instructing them to do so. Multidisciplinary research from nurses, midwives, physicians, bioethicists, legal professionals, and other healthcare providers can help all of us gain more understanding of this complex topic. This issue will continue to evolve as more developing countries begin to emerge with favorable conditions for couples seeking to have a child via commercial surrogacy (Rotabi & Bromfi eld, 2012). Nurses must advocate for human rights protection of poor uneducated women who participate as SMs without being fully aware of the clinical risks and the psychosocial ramifi cations. ✜
David M. Frankford is a Professor of Law, Rutgers Law School, Camden, NJ.
Linda K. Bennington is a Senior Lecturer, School of Nursing, Old Dominion University, Norfolk, VA.
Jane Greene Ryan is an Assistant Professor, Drexel College of Nursing and Health Professions, Philadelphia, PA. She can be reached via e-mail at [email protected]
The authors declare no confl ict of interest.
DOI:10.1097/NMC.0000000000000163
ReferencesArmour, K. L. (2012). An overview of surrogacy around the world: Trends,
questions and ethical issues. Nursing For Women’s Health, 16(3), 231-236. doi:10.1111/j.1751-486X.2012.01734.x
Bassan, S., & Michaelsen, M. (2013). Honeymoon, medical treatment or big business? An analysis of the meanings of the term ‘reproductive tourism’ in German and Israeli public media discourses. Philosophy, Ethics and Humanities in Medicine, 8(9). Retrieved Jan 1, 2015 from http://www.peh-med.com/content/8/1/9.
Bhalla, N., & Thapliyal, M. (2013). Foreigners are fl ocking to India to rent wombs and grow surrogate babies. Business Insider. Retrieved from www.businessinsider.com/india-surrogate-mother-industry-2013-9. Accessed December 19, 2014.
Bhowmick, N. (2013). Why people are angry about India’s new surrogacy rules. Time. Retrieved from http://world.time.com/2013/02/15/why-people-are-angry-about-indias-new-surrogacy-laws/. Accessed Decem-ber 19, 2014.
Centers for Disease Control and Prevention. (2013). Infertility. Retrieved from www.cdc.gov/nchs/fastats/infertility.htm. Accessed December 19, 2014.
Desai, K. (2012). India’s surrogate mothers are risking their lives. They urgently need protection. The Guardian, June 5, US Edition. www.theguardian.com/commentisfree/2012/jun/05/india-surrogates-impoverished-die
Gugucheva, M. (2010). Surrogacy in America. Cambridge, MA: Council for Responsible Genetics. www.councilforresponsiblegenetics.org
Gupta, J. A. (2012). Reproductive biocrossings: Indian egg donors and surrogates in the globalized fertility market. International Journal of Feminist Approaches to Bioethics, 5(1). 25-52. doi:10.1353/ijf.2012.0007
Harrison, L. (2010). Brown bodies, white eggs: The politics of cross-ra-cial gestational surrogacy. In A. O’Reilly (Eds.), Twenty-fi rst century motherhood: Experience, identity, policy, agency (pp. 261-275). New York, NY: Columbia University Press.
Inhorn, M. C., & Shrivastav, P. (2010). Globalization and reproductive tourism in the United Arab Emirates. Asia-Pacifi c Journal of Public Health, 22(3 Suppl.), 68S-74S. doi:10.1177/1010539510373007
Jaiswal, S. (2012). Commercial surrogacy in India: An ethical assessment of existing legal scenario from the perspective of women’s autonomy and reproductive rights. Gender, Technology and Development, 16(1), 1-28. doi:10.1177/097185241101600101
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illegal. The twins have been placed in foster care until the court case is resolved. Another high profi le case in-volved a Norwegian woman who also had twins through a surrogate and was stranded in India for 2 years. The Norwegian embassy in India refused to issue travel pa-pers after mandatory DNA testing proved the twins were not biologically related to her (Bhowmick).
Nursing ImplicationsSocial workers, physicians, ethicists, and others have written statements about surrogacy, but to date, no nurs-ing professional organizations have published any re-ports or opinions on use of commercial surrogacy from poorer countries. Nurses can infl uence the considerations of using a transnational surrogate through education, clinical practice, research, and especially an open discus-sion of the ethical and legal issues involved (Table 2).
More research is needed, particularly on multiple viewpoints such as the SM, her family, and the couple commissioning the pregnancy and birth. Findings of Pande (2010a, 2010b, 2011) should be expanded to gain more understanding about these experiences. Rich areas of research potentially exist such as exploring how Indi-an SMs make decisions, who infl uences those decisions, and the role of culture, religion, gender, and power in decision making. Also worthy of more study is whether
Table 2. Nursing Strategies for Indian Commercial Surrogacy
Nursing Education
• Discuss gender inequities and how power differentials infl uence decision making.
• Explore cultural and religious infl uences on maternal child healthcare particularly among rural, inadequately educated, and resource-poor women.
• Consider using issues raised of Indian commercial surrogacy as bioethical and legal case studies.
Nursing Practice
• Advocate for gender equity and the elimination of gender-based power differentials.
• Explore strategies to increase the education of girls and women as increased education may infl uence decision making.
• Advocate for legal protection of Indian surrogate mothers.
Nursing Research
• Create research agendas inclusive of the views of Indian commercial surrogate mothers, their families, and the communities in which they reside.
• Develop multidisciplinary research teams to examine decision-making strategies of Indian commercial surrogates.
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Palattiyil, G., Blyth, E., Sidhva, D., & Balakrishnan, G. (2010). Globaliza-tion and cross-border reproductive services: Ethical implications of surrogacy in India for social work. International Social Work, 53(5), 686-700. doi:10.1177/0020872810372157
Pande, A. (2010a). “At least I am not sleeping with anyone”: Resist-ing the stigma of commercial surrogacy in India. Feminist Stud-ies, 36, 292-312. doi:10.2307/27919102
Pande, A. (2010b). Commercial surrogacy in India: Manufacturing a perfect mother-worker. Journal of Women in Culture and Society, 35(4), 969-992. doi:10.1086/6S1043
Pande, A. (2011). Transnational commercial surrogacy in India: Gifts for global sisters? Reproductive Biomedicine Online, 23(5), 618-625. doi:10.1016/j.rbmo.2011.07.007
Rennie, S., & Mupenda, B. (2008). Living apart together: Refl ec-tions on bioethics, global inequality and social justice. Philosophy, Ethics and Humanities in Medicine, 3, 25-33. doi:10.1186/1747-5341-3-25
Ross-Sheriff, F. (2012). Transnational cross-racial surrogacy: Issues and concerns. Affi lia: Journal of Women and Social Work, 27(2), 125-128. doi:10.1177/0886109912445269
Rotabi, K. S., & Bromfi eld, N. F. (2012). The decline in intercountry adoptions and new practices of global surrogacy global exploita-tion and human rights concerns. Affi lia: Journal of Women and Social Work, 27(2), 129-141. doi:10.1177/0886109912444102
Saravanan, S. (2013). An ethnomethodological approach to examine ex-ploitation in the context of capacity, trust and experience of commer-cial surrogacy in India. Philosophy, Ethics, and Humanities in Medi-cine, 8, 10. doi:10.1186/1747-5341-8-10
Sarojini, N., Marwah, V., & Shenoi, A. (2011). Globalisation of birth mar-kets: A case study of assisted reproductive technologies in India. Globalization and Health, 7, 27. doi:10.1186/1744-8603-7-27
Saxena, P., Mishra, A., & Malik, S. (2012). Surrogacy: Ethical and legal issues. Indian Journal of Community Medicine, 37(4), 211-213. doi:10.4103/0970-0218.103466
Singh, H. (2014). ‘The world’s back womb’: commercial surrogacy and infertility inequalities in India. American Anthropologist, 116 (4), 824-828. DOI:10.1111/aman.12146
Surrogacy India Guide. (2012). Global Doctors Options. Retrieved from www.globaldoctoroptions.com/surrogacy-in-india-guide. Accessed December 19, 2014.
Tanderup, M., Reddy, S., Patel, T., & Nielsen, B. B. (2015). Informed con-sent in medical decision-making in commercial gestational surro-gacy: A mixed methods study in New Delhi, India. Acta Obstetricia et Gynecologica Scandanavica, 94(5), 465-472. doi:10.1111/aogs.12576
World Health Organization. (2015). Global prevalence of infertility, infe-cundity and childlessness. Retrieved from www.who.int/reproduc-tivehealth/topics/infertility/burden/en/. Accessed January 1, 2015.
Council for Responsible Geneticswww.councilforresponsiblegenetics.orgSurrogacy India Guidewww.globaldoctoroptions.com/surrogacy-in-india-guide
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