Commercial surrogacy: Landscapes of empowerment or oppression explored through integrative review

Abstract

The surge in demand for surrogacy treatments, combined with regulatory loopholes, has spurred the widespread adoption of global commercial surrogacy. This phenomenon poses potential risks to all involved parties, including surrogates and children, encompassing ethical, legal, physical, and psychological concerns. Although commercial surrogacy is under discussion in various jurisdictions, some countries may reintroduce legislation on the matter. In addressing this intricate landscape, the researchers performed an integrative review of existing literature with the intention of providing guidance to researchers and policymakers. The researchers emphasized notable legal and ethical challenges linked to commercial surrogacy. Surrogates often experience disempowerment and oppression, exacerbated by the contractual nature of these arrangements, perpetuating structural inequalities. Children born through commercial surrogacy, especially internationally, risk losing cultural heritage and future benefits. Banning commercial surrogacy may drive it underground, harming surrogates. Reconsidering prohibitions without penalizing surrogates could mitigate downstream issues and safeguard them from exploitation.

Surrogacy is an arrangement in which a woman, the surrogate, agrees to carry a pregnancy to term on behalf of another person or couple, the intended parents (IPs), and then relinquish the baby born form the arrangement to them. Surrogacy is not a new fertility practice, and dates to Biblical times when Abraham’s wife Sarah was unable to bear children and gave to her servant, Hagar, to Abraham. In the modern practice, surrogacy treatments have been increasingly used for infertile and childless couples, gay couples, individuals and even celebrities who prefer to have children later in life (Ellenbogen et al., 2021). There are two types of surrogacies: traditional and gestational surrogacy. Traditional surrogacy is a treatment using surrogate’s oocytes to fertilize with the sperm of the intended father or donor (Gunnarsson Payne et al., 2020). A traditional surrogate is therefore a biological mother to a baby.

Gestational surrogacy is a form of Assisted Reproductive Technology (ART) in which the treatment involves in-vitro fertilization (IVF) whereby the sperm from the intended father or donor is used to fertilize oocytes from the intended mother or donor to create an embryo which is then implanted in the surrogate mother’s womb (Ellenbogen et al., 2021). As a result, a gestational surrogate is not genetically linked to a child (Ellenbogen et al., 2021).

Modern surrogacy practice can be further divided into altruistic and commercial surrogacy. Altruistic surrogacy is an arrangement where there is an absence of commercial advantage between the surrogate and intended parents. In altruistic surrogacy, surrogates will receive payment for expenses relating to the pregnancy only. Many countries such as Thailand, India, Australia, the United Kingdom (UK), and Canada permit altruistic surrogacy (Attawet, 2021; Piersanti et al., 2021). Commercial surrogacy is also labeled compensated surrogacy where surrogates accept fees beyond the reimbursement of their medical expenses. While commercial surrogacy is banned in many countries, in some countries, such as the United States (US), Ukraine and Russia it is still legal (Guzman, 2016).

Commercial surrogacy is a controversial topic. Ethical dilemmas around personal autonomy and human rights are often raised in relation to commercial surrogacy. Dangers around physical, psychological, and psychosocial health risks to surrogates, their rights to be a mother, the child’s rights to possess benefits, and ongoing psychological risks are also recognized issues arising from commercial surrogacy (Brandão & Garrido, 2023). Although commercial surrogacy appears to be an unacceptable practice in many countries, some jurisdictions are beginning to reconsider commercial surrogacy as a way to craft their domestic surrogacy approach to prevent their population seeking commercial surrogacy overseas (Millbank, 2015; Tremellen & Everingham, 2016). Thailand is one such country, where the legislature is still to decide upon the future of commercial surrogacy (Petpailin, 2022). Since this topic is still the subject of debate, and the reconsideration of the current commercial surrogacy approach is still to be decided, we will analyze studies probing commercial surrogacy to draw conclusions around the veracity of the practice, and to inform policy makers or regulators for further reference.

Methodology and methods

The researchers conducted this integrative literature review using a five-stage approach: problem identification, literature search, data evaluation, data analysis, and presentation (Whittemore & Knafl, 2005). This approach has been used extensively to enhance the rigor of the review process in many published integrative reviews (Hopia et al., 2016).

Literature search

The researchers explored a comprehensive body of literature, encompassing both qualitative and quantitative primary and secondary research studies. The databases searched included Medline and CINAHL using the identified keywords Surrogacy, Commercial Surrogacy, Transnational Surrogacy and Reproductive Tourism. Key terms were also searched for subject terms using MeSH. The search included articles published in English between the year 2013 to 2023. During the search process, consideration was given to the diverse terminology used, synonyms, and the spelling of keywords. A manual search was also conducted.

Inclusion and exclusion criteria

We included studies focused on Commercial Surrogacy. Studies that investigate commercial surrogacy from the perspective of Surrogates, IPs, Medical Practitioners (MPs) or Surrogacy Agencies (SAs) were included. Studies not published in English were excluded. In the case of duplication, the more recently published article was included. We excluded studies expert opinions, reports and articles that were not peer-reviewed. Literature published in languages other than English was also excluded.

The initial search identified 262 titles. This low number of identified articles was because the commercial surrogacy is under research with limited further investigation among surrogacy parties on the commercializing issues. Another eight articles from references and citations that were seemingly relevant were retrieved and assessed. We excluded duplicated entries, leaving 199 titles. The title, abstract and whole text was assessed based on the inclusion and exclusion criteria. A total of 185 articles were removed, with 14 articles remaining.

Data evaluation

The 14 articles were appraised for quality using the Joanna Briggs Institute (JBI) Assessment and Review Instruments (Joanna Briggs Institute, 2014). After the appraisal, two studies, both were qualitative, were excluded. The study by Smietana et al. (2021) was excluded as the search strategy was inadequate and the analysis method was unclear. The study conducted by Stuvøy (2018) was excluded due to insufficient representation of the participants and their voices. The researcher did not incorporate quotes from the participants’ interviews in their study. Finally, nine qualitative studies, one quantitative study, one mixed methods study and one literature review were included in this review. Figure 1 presents the search procedure and outcomes.

Figure 1. Search procedure and outcomes.

Data analysis

Once each study had been fully assessed for inclusion, included studies were confirmed. Data was extracted from each study. The second author identified themes related to commercial surrogacy from the perspective of surrogates, IPs and MPs. Data was extracted independently by the second author into a summary table to capture the following information: author, year published, study design, method, sampling approach, subjects’ country of origin, and the key findings for each study to prepare the final list of extracted data. As in previous steps, if a discrepancy was noted, it was discussed with the first author to obtain consensus. Once complete, a summary table of the findings was generated (Supplementary Table 1).

The subthemes identified during the data reduction phase were then independently placed by the second author into four matrices around the themes: (1) Unlawful and unethical aspects of commercial surrogacy “Malum in se”, (2) Exploitation throughout commercial surrogacy, (3) Health vs. Psychosocial risks of commercial surrogacy, and (4) Commercial surrogacy enabling factors. The researcher referred back to the primary source as needed to verify context and help clarify the subthemes. A master list was generated, and the final placement of each subtheme into a theme was determined by the researcher. The researcher then synthesized each theme’s essential elements and conclusions into an integrated summation. Themes and sub-themes were generated from the findings that reflected the review’s aims (Supplementary Table 2).

Results

Data presentation

There were 355 participants in the 12 reviewed studies; 212 surrogates, 65 IPs, 52 MPs, and 26 SAs. Five Indian studies, two Thai studies, two Australian studies, one American study and one Swedish study. All surrogates inculded in this review are from either India or Thailand.

Theme 1: Unlawful and unethical aspects of commercial surrogacy “Malum in se”

Commercial surrogacy is a complex and controversial practise, and is considered to be unethical or morally objectionable, and is sometimes referred to as Malum in Se. The term Maulm in se means ‘evil in itself’ or ‘wrong in itself’ and refers to behaviors generally recognized as intrinsically evil or morally objectionable, despite other cultural or legal considerations (Fellmeth & Horwitz, 2021).

Breach of ethics

Several ethical concerns related to commercial surrogacy are emphasized. One such concern is the potential for women to be treated as a means to conception and children as mere products of conception. The act of surrogacy itself has been criticized as equivalent to selling babies or human trafficking (Brandão & Garrido, 2023). Additionally, there is a belief that the emotional toll on surrogates is underestimated, with some proponents arguing that surrogates from low socioeconomic countires are strong enough to carry a baby for nine months and hand it over to the IPs. However, this attitude fails to consider the emotional and psychological impact on the surrogates (Riggs, 2016).

The commercial nature of surrogacy also raises other concerns. The practice of multiple embryo transfer, preparing more than one surrogate for one IP and then aborting fetuses, fetal reduction, and cesarean sections are often in violation of ethical standards in reproductive medicine set by international guidelines (Tanderup et al., 2015a). IPs expressed uncertainty about the protection of the surrogates’ interests adds to these concerns (Arvidsson et al., 2015). Furthermore, it is unclear how children born through surrogacy may feel about their origins, particularly in relation to the surrogate’s motives given that financial payment was exchanged for gestation. The limited contact between the IPs and surrogates also makes it difficult to obtain information on the surrogates’ well-being and how their welfare is being prioritized (Zannettino et al., 2019).

Breach of law

The researchers revealed several deficiencies in surrogacy practices and regulations that put surrogates and their childern at risk. Although there are laws and guidelines developed to regulate the surrogacy process, IPs did not perceive surrogacy law and guidelines as imposing any restrictions or being mandatory for maintaining good clinical practice (Tanderup et al., 2015b). For instance, although the ART Bill legally enforces the surrogacy agreement, The study of Saravanan (2013) found that Indian surrogates did not receive a copy of their signed contract, limiting their ability to file a lawsuit in situations where breach of contract occurs. Additionally, as per Brandão and Garrido (2023) and Arvidsson et al. (2015), surrogates may not have been adequately informed about the medical treatment they will receive and the associated risks, potentially raising concerns about their informed consent and leaving them misinformed about the procedure. While surrogates in Saravanan’s (2013) study were aware of their manipulation due to the lack of a written contract, they were still willing to participate in the surrogacy process, even if they were under 20 years old, which is in contravention of the ART Bill. Furthermore, women who want to participate as a surrogate are required to obtain permission from their husband, but this can be manipulated as women are able to bring any family member or friend who poses as their husband (Saravanan, 2013).

Another breach of law was reported by the IP on the number of embryos that may be transferred. While the regulations and guidelines obligated IP to transfer limited number of embryos per transfer, some surrogacy clinics transfer high numbers of embryos, from four to seven, in contravention of the guidelines (Tanderup et al., 2015a). Additionally, while the IP should not hire more than one surrogate simultaneously, at times, clinics transfer embryos to more than one surrogate to ensure a higher chance of successful pregnancy, which is a clear violation of laws and guidelines (Tanderup et al., 2015a). If multiple pregnancies result and the IP does not want more than one or two children, the clinic may decide to terminate one of the pregnancies, and this surrogate will not be paid the full amount (Tanderup et al., 2015a). Surrogates mentioned some IPs induced abortion in similar cases and they claim happened naturally. Furthermore, it was mandatory in some clinics to confine all surrogates in surrogacy homes away from their families, and impose house rules for the entire pregnancy period and for as long as required after delivery, which is contrary to international human rights (Saravanan, 2013).

According to the research, there is an indication that IPs and SAs may be cognizant of the expectations set by overseas couples. However, they appear willing to accommodate these expectations, potentially disregarding legal and ethical standards and neglecting the potential negative health repercussions for the surrogates. There is a clear commercial interest in this transaction, and IPs justified their actions based on the belief that if they did not do it, IPs would simply go to other clinics to get what they want (Tanderup et al., 2015a).

Legal conflict

The researchers suggest that legal issues can arise not only in the country where surrogacy is performed, but also in the country of origin of the IPs, also known as the "receiving country." Returning home with the child can often prove difficult for IPs, particularly when attempting to obtain a passport or travel documentation from consular authorities overseas or when registering their children as citizens in their native countries. This issue can be further complicated for singles or same-sex couples who may not be allowed to have children in their home countries (Brandão & Garrido, 2023).

Additionally, IPs who have achieved parenthood through surrogacy overseas may face legal barriers preventing them from attaining legal parental status. While this may not typically affect the child’s access to education or healthcare, difficulties may arise when applying for the child’s passport or in the event of a relationship breakdown between the IPs. It is important to note that having the IPs’ names on the birth certificate is only evidence of parentage, not proof of citizenship, and the legal processes for achieving a legal parentage order can be complex and expensive (Zannettino et al., 2019). Additionally, there may be insecurity surrounding legal parentage, as IPs may not be awarded parental responsibility. This may result in children being unable to apply for a passport, and there is uncertainty surrounding custody arrangements in the event of a relationship breakdown (Zannettino et al., 2019).

Theme 2: Exploitation throughout commercial surrogacy

Exploitation toward surrogates

Surrogacy raises a range of legal, emotional, social, and financial concerns, particularly when it comes to the vulnerability of surrogate mothers (Attawet, 2022). Exploitation in surrogacy takes many forms, including the use of unnecessary medical interventions, confinement to surrogate homes, lack of transparency, and inadequate payment or reimbursement.

Surrogates are often regarded as the most vulnerable participants in the surrogacy process, as they are subjected to a range of exploitative practices that violate their human rights (Saravanan, 2013). Surrogates expressed a lack of knowledge regarding the number of embryos transferred during the surrogacy process. Their awareness was limited to the count of fetuses, while the SA and MPs involved were unwilling to consider reducing the number of fetuses. Additionally, surrogates were offered additional compensation to undergo a cesarean section (Tanderup et al., 2015a). Many other surrogates are confined to surrogacy homes and denied the right to leave, resulting in isolation and a lack of autonomy. In addition, surrogates are often not given a copy of their contract, which can lead to confusion and uncertainty about their rights and obligations (Saravanan, 2013). This lack of transparency is a common tactic used by SAs and IPs to manipulate surrogates.

Another common form of exploitation in surrogacy is the use of unnecessary medical interventions, such as intentional miscarriage, which can be invasive and dangerous for the surrogate mother (Brandão & Garrido, 2023). Surrogates are often not provided with medical insurance, which means that they may be left with significant medical bills in case of complications (Brandão & Garrido, 2023). Surrogates are also expected to breastfeed and bond with the children without any psychological counseling, which can be extremely emotionally traumatic (Saravanan, 2013). Surrogates were also subjected to additional requirements such adhering to all medical procedures and providing care for the newborn as instructed by the IPs. They were also expected to nurture the child for the duration of the IPs’ preference (Saravanan, 2013).

Payment or reimbursement for surrogates exposes a potential for exploitation. Surrogates are often paid for handing over the child rather than for their reproductive capacity, which can be exploitative (Saravanan, 2013). In addition, surrogates may not be compensated in case of miscarriage or other complications, which can be financially devastating for the surrogate (Attawet, 2022). The issue of financial insecurity for gestational surrogates in the event of a failed delivery is underscored. In commercial surrogacy, compensation is usually paid in installments until a successful delivery. This means that there is no guarantee surrogates will receive the full compensation amount while being unable to perform other paid work to support themselves. According to Attawet, Wang & Sullivan’s (2022) study, the Thai surrogates received only 15% of the total compensation for the embryo transfer and positive pregnancy result, with the rest being paid in installments throughout each trimester until delivery.

Another key issue arises for surrogates who are carrying the pregnancy for unknown IPs. In such situations, it can be difficult for potential surrogates to identify suitable IPs because surrogates tend to be unsupported in screening and selecting IPs (Zannettino et al., 2019). This lack of support can make surrogates more vulnerable to exploitation and abuse.

Exploitation toward children

The exploitation of children is a concerning aspect within the realm of commercial surrogacy. Little attention is given to the legal protection of surrogate children and the women giving birth to them. This lack of protection can leave not only surrogates but also their children vulnerable to exploitation and abuse (Arvidsson et al., 2015).

When surrogacy takes place overseas, additional challenges arise. The child may face difficulties in tracing their surrogates or donor in the future. The surrogates may not speak the child’s language or share their socioeconomic background, which raises questions about the child’s ability to connect with their surrogates on a social and emotional level (Zannettino et al., 2019). Such challenges may have significant implications for the child’s psychological wellbeing and their understanding of their origins. This also raises concerns regarding how children may perceive their origin, as they may see themselves as being born from a situation of exploitation (Zannettino et al., 2019).

Furthermore, there are no background screenings required for IPs in surrogacy arrangements, which poses a risk of child exploitation and may result in unsuitable parents being granted custody of the child (Zannettino et al., 2019). This risk, however, also applies to people who become parents naturally, as there are no screenings required for individuals to conceive a child naturally and become parents.

Theme 3: Health vs. psychosocial risks of commercial surrogacy

When entering commercial surrogacy arrangements, surrogates had to face the risk of potentially inadequate support from family, relatives, close friends, community, and healthcare organizations (Attawet, 2022) and this associated with important adverse medical or psychosocial outcomes (Brandão & Garrido, 2023).

Health risks of commercial surrogacy

The researchers revealed that there are health risks of commercial surrogacy on surrogates and their fetuses, such as missed or failed conceptions, the complexities of multiple pregnancies, the risks associated with fetal reduction, the potential for poorer health outcomes in children born through surrogacy arrangements, and the health risks faced by surogates who travel abroad for embryo transfer and baby delivery.

Missed pregnancy conceptions or failed conceptions are commonly reported (Brandão & Garrido, 2023). When multiple pregnancies occur, IPs are faced with the decision of whether they prefer a single child twins, or triplets. Subsequently, IPs have to determine whether to continue the pregnancy, terminate it, or reduce the number of fetuses. Continuing with multiple pregnancies poses an increased risk of maternal and neonatal morbidity and mortality, while fetal reduction carries the risk of total abortion (Tanderup et al., 2015b). Concerns have also been raised regarding the potential health outcomes of children born through surrogacy arrangements, primarily due to the practice of transferring multiple embryos. This practice may lead to poorer health outcomes not only for surrogates but also for surrogate children (Zannettino et al., 2019).

Furthermore, the researchers highlighted the risks experienced by surrogates who are required to travel abroad for embryo transfer and baby delivery. In the case of Thai women involved in commercial surrogacy in Attawet, Wang & Sullivan’s (2022) study, surrogates were obligated to sign a contract agreeing to deliver the baby in the IPs’ country. As per the commercial surrogacy protocol, these women had to travel abroad from 28 gestational weeks. The travel-related risks and potential health implications for surrogates and their fetuses in such situations are self-evident.

Psycosocial risk of commercial surrogacy

Psychosocial risks of commercial surrogacy on surrogates and IPs were frequently reported in the literature. Risks such as sense of loss and grief experienced by surrogates and IPs, the lack of bonding and interpersonal relationships between surrogates and IPs, the psychological trauma faced by IPs, the stigmatization of surrogates, and issues of disclosure to the child.

Unsuccessful surrogate conception is one of the risks facing surrogates and this significantly shakes the confidence of surrogates, leading to a sense of loss and grief compounded by a lack of support (Mitra & Schicktanz, 2016). Unsuccessful surrogate conception disrupts surrogates’ plans and holds the potential to thrust them back into their previous lives, thwarting their aspirations for personal growth (Mitra & Schicktanz, 2016). If they conceive successfully, surrogates themselves perceive pregnancy through surrogacy as socially unacceptable and such perception damages their social standing and influences their attitudes and behaviors during the surrogacy process. The stigmatization experienced by surrogates leads to self-devaluation and negative effects on mental health (Attawet, 2022; Attawet et al., 2022).

In commercial surrogacy arrangements, there is often a dearth of bonding or interpersonal relationships between IPs and surrogates. As a consequence, both parties fail to connect with each other’s ongoing anxieties and emotions (Mitra & Schicktanz, 2016). This lack of connection can result in a sense of isolation and psychological harm for surrogates (Attawet et al., 2022). IPs often desire the opportunity to maintain a relationship with the surrogate, but this choice is limited by the agency involved. SAs typically restrict the level of contact between IPs and surrogates to protect the surrogate’s privacy and prevent potential financial exploitation. The limited contact can leave IPs feeling disappointed or worried about the lack of connection (Gezinski et al., 2018).

Minimal social support is often available to IPs, as the disclosure of surrogacy is typically limited to a select few friends or family members (Gezinski et al., 2018). Such lack of social support might intensify the long-term psychological trauma of IPs arising from the loss of the unborn or reduced fetuses (Tanderup et al., 2015b). Issues of disclosure to the child present another challenge for IPs. Decisions regarding disclosure must be made, and while some participants express openness to discussing the surrogacy process with their children, it remains a complex and deeply personal matter (Gezinski et al., 2018).

Theme 4: Commercial surrogacy enabling factor

Facilitating factors

The researchers discovered several factors that facilitate commercial surrogacy in certain countries from this conducted review. The proposition is that economic considerations play a crucial role in motivating women to become surrogates, and the financial compensation provided in surrogacy arrangements can exert a substantial influence on their social and economic welfare. India and Thailand are the most attractive countries for commercial surrogacy (Arvidsson et al., 2015; Attawet et al., 2022; Rozée et al., 2019).

In India, factors such as the liberal laws permitting surrogacy, the low relative cost of surrogacy, and easy availability of women willing to become surrogates, are facilitating the surrogacy process. Additionally, the lesser rights of surrogates in India also make it an attractive destination for foreign couples seeking surrogacy arrangements (Arvidsson et al., 2015; Riggs, 2016; Saravanan, 2013).

Another factor that lead IPs to explore commercial surrogacy overseas is the legal, ethical, and financial issues associated with surrogacy in their home country (Zannettino et al., 2019). For instance, in Australia, while altruistic surrogacy is legal, IPs face many legal and logistical barriers (Zannettino et al., 2019) and surrogacy arrangements are unenforceable.

As health professionals recognize the legal risks associated with providing information about surrogacy, they tend to take a neutral approach or discuss surrogacy overseas and the potential issues that may arise (Zannettino et al., 2019). As a result, IPs often avoids discussing their arrangements with professionals or friends/family and instead turns to online sources for information. At present, most of the matching between IPs and surrogates is done via online groups, with no professional screening in place (Zannettino et al., 2019). While the online approach facilitates the commercial surrogacy process for IPs and surrogates, particularly without outside monitoring, the reliability of information provided online can be a concern for all paties included in the commercial surrogacy process.

The relative remuneration offered to surrogates can be substantial and often equates to many years’ worth of their regular salary (Saravanan, 2013). Additionally, the relationship between the surrogate and the clinic can be ongoing, with repeat surrogacy arrangements often leading to higher compensation (Saravanan, 2013). Contrary to popular assumptions, research suggests that surrogates are not necessarily the poorest or least educated women. For instance, many of the Indian surrogates interviewed in Rozée et al.,’s (2019) study were close to the Indian middle class, with better education, employment and family income than the general population. This may be explained by selective recruitment criteria used by IPs. This ensures that women with adequate social and educational capital are recruited for surrogacy arrangements.

In Thailand, commercial surrogacy arrangements were perceived as a surrogacy career by many women, with economic factors such as debt, dependent family members and culture playing a significant role in their decision to engage in commercial surrogacy (Attawet et al., 2022). This perception of the surrogates that commercial surrogacy is ‘womb for work’ to consider commercial surrogacy as a career is a crucial factor facilitates such process.

Influencing factors

Various social and cultural factors influence the societal reception of gestational surrogacy, including religion, culture and the overall social context. Religion, in particular, plays a significant role as different religious perspectives vary on aspects such as motherhood, marriage, life, and the status of the embryo. Brandão & Garrido’s (2023) review revealed that Muslims and the Catholic Church are opposed to surrogate treatments, as they believe procreation and childbearing should strictly occur within the bounds of marriage. Other branches of Christianity have varied perspectives on surrogacy, with a general tendency toward disapproval. However, some acknowledge the ethical justifications and medical necessity in certain cases. In Jewish society, issues arise when donor eggs or surrogacy involve a non-Jewish woman, as rabbinic authorities disagree on the child’s Jewish status, potentially leading to religious conversion. In Hinduism, infertility is regarded as a curse, leading to acceptance of ART and surrogacy as a means to overcome it. In Buddhism, as long as pain and harm are avoided, all practices are considered acceptable.

Culture is another factor influence the acceptance of commercial surrogacy within a community. In India and Thailand for example, where surrogacy is a thriving industry, the community is still reticent with respect to commercial surrogacy and this may place some surrogates in conflict with their families and communities (Attawet et al., 2022; Riggs, 2016). This is explained by conflicting cultural norms regarding pregnancy outside of wedlock, the time surrogates spend away of their families and the potential health risks associated with surrogacy (Attawet et al., 2022; Riggs, 2016). In many cases, commercial surrogacy was perceived as a socially unacceptable behavior by the surrogates themselves. To them, this perception damaged their social standing, negatively impacted their self-perception and created more conflicts with family and community (Attawet, 2022). On top of conflicting cultural norms, uncertainties surrounding surrogacy regulations in surrogates countries contribute to the ambiguity and confusion among women engaging in commercial gestational surrogacy (Attawet, 2022).

Discussion

Four themes were presented from the review of investigating commercial surrogacy among all parties: (1) unlawful and unethical aspects of commercial surrogacy “Malun in se”, (2) exploitation throughout commercial surrogacy, (3) Health vs. Psychosocial risks of commercial surrogacy, and (4) commercial surrogacy enabling factors. Although several negative perspectives are highlighted against the commercialization of surrogacy, surrogacy is a lucrative business worldwide (Hibino, 2022). Commercial surrogacy is increasingly used by wealthy people in countries where the is restricted access to, or the shortage of, resources to facilitate surrogacy treatment. These are enabling factors for establishing commercialization of surrogacy overseas (Fayemi & Chimakonam, 2022; Nadimpally & Venkatachalam, 2016). The compensation of surrogates to repay the use of their body is another contributing factor to drive the commercial surrogacy entrepreneurship.

The laws around commercial surrogacy vary around the globe, and in many jurisdictions commercial surrogacy is also illegal (Arvidsson et al., 2015; Davis, 2012; Nelson, 2013; Torres et al., 2019). A significant concern with commercial surrogacy centers around exploitation (Saravanan, 2013), or the potential exploitation of surrogates (Wilkinson, 2016) who becomes dehumanized and reduced to a mere instrument (Bartky, 2015). Issues sometimes arise as to the motivation for the surrogacy whether it be from dire financial circumstances or through coercion, and the potential for loss of dignity, agency or autonomy in these situations (Watson, 2016).

Arguably, the practise of surrogacy by its very nature dehumanizes women, and commodifies human life, with the ultimate end product being a human being that is effectively produced for money (Ghosh, 2015). Surrogacy and in particular commercial surrogacy is often framed as being to help people in need who want a family it often fails to address the devastating emotional cost that it potentially has on the surrogates when separated from a child to whom she has given birth (Riggs, 2016). Moreover, it reduces the complex psychological and physiological process of human reproduction to a commercial transaction, which in many jurisdictions are unenforceable. In the dehumanizing legal language of commercial surrogacy, even the death of the fetus is described in the contractual terms as a “non-event” (Mitra & Schicktanz, 2016).

Additionally, countries where commercial surrogacy is simply outlawed therefore often lack regulatory frameworks to control practises ancillary to it and so commercial surrogacy often becomes an underground black-market practice. This leads to cross-border trafficking and perpetuates the illegal and unregulated aspects of commercial surrogacy where even less protections for the surrogates exist (Rudrappa, 2018). Surrogacy and the resultant postpartum separation also impacts the mother and the child leading to potential health consequences for the mother (Birenbaum-Carmeli & Montebruno, 2019), which due to the commercial nature of the transaction often leave the mother and child with no legal avenue for redress, with the child a mere third party to the contract. There are also legal issues arising about the child, child’s right to know their origin, and also what their nationality and legal status with respect to citizenship (Kindregan & White, 2013). Cultural connections with the child’s ancestors are also often unrecognized in the contractual arrangements of commercial surrogacy and therefore often ignored as the child is to be taken to the new family and culture and is therefore denied of its own cultural heritage (Vora, 2017). The legal issues arising from this are often intractable and place the child at a significant disadvantage throughout its life. Moreover, there is a lack of proper regulatory frameworks (Stuhmcke, 2015), and it can often raise complex legal issues with respect to custody, nationality, financial arrangements, and the overall wellbeing of the child (A. Sifris, 2015; R. Sifris, 2015).

Following these issues, children born through this process is become interesting in research in a form of the “best interest of the child” to find the legal relationship between IPs and children in cross-border surrogacy arrangements. To date, no internationally human rights law provides safeguards to protect children born through cross-border surrogacy arrangements. Consequently, children are at risk of multiple human rights violations—particularly, their right to an identity, including name, nationality, family relations and access to origins; the right to the enjoyment of the highest attainable standard of health; and the right to not be sold (Achmad, 2022; Rotabi et al., 2017).

The commercial nature of commercial surrogacy often involves a large power imbalance and fails to take proper account of the rights of the surrogate, which can lead to significant exploitation, and psychological, financial, and emotional damage, to the surrogate, and the child (Fayemi & Chimakonam, 2022). Along with the recognized power imbalance between surrogates and the contracting parties, often presenting as an immense difference in wealth, privilege, and social status, the potential for exploitation is extremely high (Saravanan, 2013). The surrogate is often living in relative poverty and is under compensated relative to what would be acceptable in Western countries for the service provided and often bears all the risks associated with the pregnancy. This leaves the surrogate in a highly vulnerable position both to exploitation and also for her physical wellbeing and personal safety. Of even greater concern is the fact that in countries where commercial surrogacy is legal the arrangements or agreements are undertaken on a primarily contractual basis. While this may at first seem innocuous, it hides a disturbing structural power imbalance inherent in the commercial surrogacy arrangements. This is because the contractual agreements, which may unfairly prejudice the surrogate, are enforceable as private law between the parties to the agreement, no matter how unequal the arrangement or how low the compensation afforded the surrogate. The traditional notions of contract law guarantee that the agreements are enforceable through the courts. In effect this means that the exploitative potential of commercial surrogacy arrangements are structurally entrenched and supported through the law of contract in countries where commercial surrogacy is legal.

In such jurisdictions, where commercial surrogacy is legal, we see the structural dominance of the state indirectly supporting the systemic exploitation of women. The organizations and institutions of the state are mobilized in supporting the exploitation of the most vulnerable members of society, women and children. The State intrusion into a woman’s sovereign personal space is both brutal and unyielding as it indirectly supports commodification of both the mother and the child to a product at market. To compound this problem, the surrogate often has no option but to surrender the child under the terms of the contract. The entrenched ideological structure of the state support of commercial agreement therefore operates as a normative force in the oppression of women throughout countries where commercial surrogacy arrangements are legitimized. While it is recognized that banning commercial surrogacy will simply drive the practise underground (Rudrappa, 2018), some form of international legislative protection needs to be put in place for those women who are for whatever reason induced into participating in commercial surrogacy. This is to ensure that, even in jurisdictions where it is illegal, surrogates are not punished for entering into a commercial surrogacy arrangement when the power imbalance between the parties is often so large, and the surrogate women are often at some financial, social, and legal disadvantage (Fayemi & Chimakonam, 2022). Accordingly commercial surrogacy is a multidimensional issue that encompasses significant legal ethical and moral dimensions and requires a dedicated international framework that protects the rights and freedoms of the most vulnerable parties.

The limitation was that the researchers focused on studies examining commercial surrogacy within the parties participating in surrogacy arrangement. Therefore, the drawing results and experiences could be different from the review of perspective surrogacy in general practice.

Conclusion

Commercial surrogacy is an issue still debated to protect rights for all parties. The legal ramifications of commercial surrogacy can cause ongoing problems around citizenship, parenthood, access to genealogical information, and the child’s right to know their family and can lead to ongoing loss of cultural connexion and heritage. Where commercial surrogacy is outlawed, it often drives the practise underground and a properly considered international legislative framework that considers prohibitions without penalizing the surrogate mother, would help to discourage exploitation and protect the rights of surrogate mothers engaging in the practise even in jurisdictions where surrogacy or commercial surrogacy is outlawed.

Disclosure statement

No potential conflict of interest was reported by the authors.

Additional information

Funding

N/A.