Eric Quintana-Snyder
As reproductive technology has improved in the past decade, the popularity of surrogacy has soared, becoming an increasingly popular option for LGBTQ+ couples who wish to have children. Many individuals and couples therefore have turned to international surrogacy arrangements to fulfill their dreams of parenthood. In fact, the industry is expected to grow from $14 billion in 2022 to $129 billion by 2032.[1] However, navigating international surrogacy can be complex, with various legal and practical challenges to consider. In this article, I briefly explore the current legal issues surrounding international surrogacy, barriers related to financial and physical access, proposed solutions to prevent litigation, make surrogacy safer for everybody involved, and make international surrogacy a more affordable and accessible for LGBTQ+ couples.
International surrogacies involve complex legal issues, as they often involve different legal systems, cultural norms, regulations, and ethical considerations. Complicating matters greatly, notable litigation over surrogacy agreements has emerged in different jurisdictions, with varying outcomes. For example, the Baby Gammy case raises a broad array of international surrogacy issues.[2] The case involved an Australian couple who entered into a surrogacy arrangement with a Thai surrogate.[3] The surrogate mother became pregnant with twins, but it was later discovered that one of the babies, known as Baby Gammy, had Down syndrome and a heart condition.[4] The Australian couple decided to only take the healthy twin and left Baby Gammy in Thailand with the surrogate mother.[5]
Thailand and Eastern Asia in general are particularly popular options for international surrogacy because their cost is considered to be among the lowest in the world, rivaled only by Ukraine which explicitly only allows heterosexual couples to utilize the country’s services.[6] Even so, the average total cost of a surrogacy in Thailand comes out to nearly $52,000 compared to $100,000 in the United States.[7] Financial and physical access to international surrogacy options therefore pose significant obstacles for many couples, but especially to those couples faced with a high cost in the United States, surrogacy abroad begins to look like a virtual necessity.[8]
However, physical access to international surrogacy options may be limited by travel restrictions, visa requirements, and language barriers.[9] Couples may need to navigate complex legal systems and cultural differences when engaging in international surrogacy agreements, which can be time consuming and stressful.[10]
One proposed solution to these complexities is the development of an international convention on surrogacy, similar to the Hague Convention on Intercountry Adoption.[11] Such a convention could establish minimum standards for surrogacy arrangements, promote cooperation among countries, and ensure the protection of the rights of all parties involved, including surrogate mothers, intended parents, and surrogate-born children. In any such convention, it would be crucial to regulate all intermediaries involved in surrogacy arrangements, including financial aspects, contractual arrangements, and ethical standards.[12]
Of course, international surrogacy is a topic that disproportionately affects LGBTQ+ couples who have limited options for parenting biological children.[13] While some countries have well-defined legal frameworks that regulate surrogacy, others have ambiguous or no legal regulations in place, creating uncertainty and potential legal risks for intended parents.[14] Moreover, even in countries where surrogacy is legally recognized, LGBTQ+ couples may face discrimination or unequal treatment due to their sexual orientation or gender identity, in some cases facing laws which explicitly restrict same-sex couples from utilizing surrogates.[15]
A potential solution to the cost aspect is to promote altruistic surrogacy, where the surrogate does not receive financial compensation.[16] This could help reduce costs and make surrogacy more accessible for LGBTQ+ couples.[17] But surrogacy is commonly criticized as a tool that leads to the eventual exploitation of the surrogate mother, so to combat this, governments and non-governmental organizations should play a role in making international surrogacy more accessible and affordable for LGBTQ+ couples.[18] For example, they can provide financial assistance or subsidies for surrogacy services, offer legal support and guidance, and promote awareness and understanding of surrogacy options among the LGBTQ+ community. Additionally, governments and NGOs should push to make surrogacy a covered benefit under all insurance plans and should educate the public about same sex parents in order to remove the stigma that still exists surrounding LGBTQ+ parents.[19]
International surrogacy agreements for LGBTQ+ couples are complex and challenging, but there are proposed solutions to address these challenges. Legal reforms, education and advocacy, improving accessibility and affordability while maintaining the autonomy of the surrogate mother, and working with reputable and ethical surrogacy agencies and professionals can all contribute to a more inclusive and supportive legal framework for international surrogacy. It is essential to prioritize accessibility and affordability, as well as provide appropriate support and resources for LGBTQ+ couples throughout the surrogacy journey. By taking these steps, we can strive towards a more equitable and inclusive approach to international surrogacy for LGBTQ+ couples who need it the most while simultaneously providing an environment where their rights and interests are recognized and protected, and their dreams of becoming parents are realized.
[1] Karen Gilchrist, The commercial surrogacy industry is booming as demand for babies rises, CNBC (Mar. 7, 2023), https://www.cnbc.com/2023/03/07/womb-for-rent-more-women-are-working-in-commercial-surrogacy-industry.html.
[2] Anindita Majumdar et al., Conceptualizing Surrogacy as Work-Labour, 13 J. of S. Asian Dev. 210, 210-27 (2018).
[3] Leslie R. Schover, Cross-border surrogacy: The case of Baby Gammy highlights the need for global agreement on protections for all parties, 102 Fertility and Sterility 1258, 1258-59 (2014).
[4] Id.
[5] Id.
[6] Aimee Jakeman, Putting a Price on Reproduction: The Global Surrogacy Market, New Sec. Beat (Sept. 6, 2016), https://www.newsecuritybeat.org/2016/09/putting-price-reproduction-global-surrogacy-market/.
[7] Halier Cheung, Surrogate babies: where can you have them, and is it legal?, BBC (Aug. 6, 2014), https://www.bbc.com/news/world-28679020.
[8] Emma Lott, Why is Surrogacy for Same-Sex Couples So Expensive?, Gay Parents to Be (Sept. 8, 2021), https://www.gayparentstobe.com/gay-parenting-blog/surrogacy-for-same-sex-couples-cost.
[9] Valeria Piersanti et al., “Procreative Tourism.” What Does the Future Hold from the Ethical and Legal Perspectives?, 57 Medicina (Kaunas) 47 (Jan. 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7827900/.
[10] Aneesh V. Pillai, Surrogacy Contracts: Issues and Challenges (2020), https://www.researchgate.net/publication/340755352_SURROGACY_CONTRACTS_ISSUES_AND_CHALLENGES.
[11] 31922, 1870 UNTS 167, The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, https://www.uscis.gov/adoption/immigration-through-adoption/hague-process.
[12] See Valeria Piersanti et al., “Procreative Tourism.” What Does the Future Hold from the Ethical and Legal Perspectives?, 57 Medicina (Kaunas) 47 (Jan. 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7827900/.
[13] See A.J. Silver, Supporting Queer Birth: A Book for Birth Professionals and Parents (Jessica Kinglsey Publishers) (2022).
[14] Ambiguity in Surrogacy Law, Fin. Trib. (Sept. 2016), https://financialtribune.com/articles/people/49460/ambiguity-in-surrogacy-law.
[15] For example, Ukraine, Georgia, and Russia all have explicit or de facto prohibitions against surrogacy for LGBTQ+ couples. See William Houghton, Surrogacy for Gay Couples Worldwide, Sensible Surrogacy, https://www.sensiblesurrogacy.com/gay-surrogacy/#:~:text=LGBT%20Surrogacy%20in%20Ukraine%20%26%20Georgia&text=Gay%20surrogacy%20is%20absolutely%20prohibited,surrogacy%20programs%20are%20officially%20illegal.
[16] Pros and Cons of Altruistic Surrogacy, Conceive Abilities (June 4, 2019), https://www.conceiveabilities.com/about/blog/pros-and-cons-of-altruistic-surrogacy.
[17] Id.
[18] Stephen Wilkinson, Exploitation in International Paid Surrogacy Arrangements, 33 J. Applied Phil.125 (2016).
[19]The US is swiftly becoming more comfortable in this regard with a Gallup poll in 2014 demonstrating that nearly two thirds of Americans believe same-sex couples should have the legal right to adopt a child. Art Swift, Most Americans Say Same-Sex Couples Entitled to Adopt, Gallup (2014), https://news.gallup.com/poll/170801/americans-say-sex-couples-entitled-adopt.aspx; Given affordability concerns in the US, however, other affordable countries will need to follow suit to even hint at the possibility of universal parenthood.