Reproductive Capitalism: Country Shopping for Parenthood

By: Emily Bauer

I.              Introduction

The creation of a family through biological childrearing is important to couples around the world. Unfortunately, traditional conception and childbirth may not be available to all couples.[1] Assisted reproductive technologies have given such couples the opportunity to have biological children in ways historically unimaginable.[2] Gestational surrogacy is a common way infertile couples can have biological children.[3]  In gestational surrogacy, a surrogate woman carries “an embryo created from the genetic material of one or both of the commissioning [or “intended”] parents” and turns the child over to the intended parents upon birth.[4]  In commercial agreements, “payment is made to the gestational wom[an] for her services.”[5] The way gestational surrogacy is regulated varies from country to country, with some countries even banning the practice altogether.[6] Due to the lack of international regulation, couples have been country shopping for the most surrogacy-friendly laws in order to attain parenthood.[7] Various problems have resulted from this practice, which are depicted by Ireland and Ukraine. What began as a selfless way to help a couple achieve parenthood has turned into a commercial enterprise.[8]

II.            Unregulated Ireland

A study of 90 countries revealed, "Ireland has the second-highest rate of surrogacy use in the world."[9] Despite its popularity, surrogacy remains unregulated by Irish law.[10] Therefore, if a couple has a surrogacy agreement with a woman who decides not to hand over the child, the couple has no legal recourse under Irish law.[11] By entering a surrogacy agreement in Ireland, couples risk losing thousands of dollars and their chance at becoming parents.[12] Therefore, the unenforceability of surrogacy agreements under Irish law has resulted in “fertility tourism.”[13] Fertility tourism is “the act of traveling abroad to take advantage of assisted reproductive technologies.”[14] Irish couples are primarily engaging in fertility tourism to gain legal protection; however, two problems have arisen.[15] First, forum shopping for the best financial surrogacy deal has created a culture of reproductive capitalism.[16] Second, the lack of regulation at the international level has created difficulty bringing a child born to surrogacy back to Ireland and confusion as to who are the recognized legal parents.[17] Ireland has recently proposed legislation to regulate surrogacy; however, the legislation fails to address the two primary problems of fertility tourism.[18]

III.          Surrogacy Tourism Hub: Ukraine

The United States, Canada, and Ukraine are common surrogacy forums because commercial gestational surrogacy is recognized by law.[19] Of those countries, Ukraine has become an international hub for surrogacy tourism because surrogacy costs are considerably lower than the United States and Canada.[20] Moreover, Ukraine has liberal surrogacy laws.[21] Ukrainian law “recogni[zes] the ‘intend[ed] parents’ as the biological parents from the moment of conception.”[22] Unlike Ireland, the intended parents are on the “ birth certificate [and] the surrogate has no legal right to claim custody of the baby.”[23] Further, there is “no limit on how much a surrogate may be paid - essentially creating an open market where woman can demand their chosen price.”[24] Therefore, it is not surprising that “68% of all surrogacies for Irish couples are estimated to have taken place in Ukraine.”[25] One Ukrainian woman even stated, “[w]e have so many childless couples coming to our country - it’s like a conveyor belt.”[26]

While Irish couples enjoy legal recognition as the child’s legal parents in Ukraine, the same is not true in Ireland.[27]  Under Irish law, the intended father[28] can be recognized as the child’s parent after a successful court application.[29] The intended mother, by contrast, “cannot be recogni[zed] as the child’s other legal parent and can only be appointed a guardian by the court a minimum of two years after the child’s birth.”[30] The stark contrast between who is characterized as a legal parent is why surrogacy should be regulated at the international level.

IV.          Proposed Legislation in Ireland

Although “[t]he General Scheme of the Assisted Human Reproduction Bill contains long-awaited proposals to regulate surrogacy in Ireland[,]” the proposals do not address international commercialization problems nor do they allow intended parents who chose international surrogacy to establish their legal parentage under Irish law.[31] The proposed legislation will instead only apply to surrogacy agreements conducted in Ireland.[32] Even domestically, the proposed legislation would only “allow parentage of the surrogate-born child to be established via a ‘post-birth’ court procedure.”[33] Since the proposed legislation will not eliminate the benefits of fertility tourism, Irish couples will likely still go abroad and engage in commercial surrogacy.[34]

V.            Conclusion

While gestational surrogacy has offered infertile couples an opportunity to become biological parents, the lack of consistent regulation has resulted in fertility tourism.[35] Country shopping for the best surrogacy “deal” has created a culture of reproductive capitalism and exploitation of surrogates, especially in Ukraine.[36] Additionally, the inconsistent recognition of gestational surrogacy agreements has created problems for intended parents in Ireland when they return with a child born to surrogacy.[37] Under current Irish law as well as under proposed legislation, the intended parents are not legally recognized as the child’s parents.[38]

Although it is a positive step for Ireland to be proposing legislation involving surrogacy, the current proposal is insufficient to address the major problems with the practice because it only applies to domestic surrogacy.[39] “Any new surrogacy law should at least enable an intended parent of a child previously born to a surrogate abroad to apply to an Irish court for a declaration of legal parenthood.”[40] Given the dramatic variation in practice from country to country, gestational surrogacy would best be regulated at the international level. Price regulation at the international level would prevent fertility tourism and reduce the exploitation of surrogates. Further, international regulation would provide consistent legal recognition for intended parents. Gestational surrogacy helps couples achieve biological parenthood; however, international regulation is needed.

 

 

 


[1] See generally CT Fertility Team, Modern & Non-Traditional Pathways to Parenthood, CT Fertility (Feb. 2, 2017), https://www.ctfertility.com/2017/02/02/modern-and-non-traditional-pathways-to-parenthood/.

[2] Id.

[3] Id. “There are two types of surrogates, traditional (where the surrogate uses her own eggs, and is genetically related to the child), and non-traditional, also called gestational (using an egg donor, and is not genetically related to the child)[.]” Id. This blog post will focus on gestational surrogacy where the surrogate has no genetic link to the child.

[4] Katherine Voskoboynik, Clipping the Stork’s Wings: Commercial Surrogacy Regulation and its Impact on Fertility Tourism, 26:2 Ind. Int’l & Comp. L. Rev. 336, 341 (2016), https://mckinneylaw.iu.edu/iiclr/pdf/vol26p336.pdf.

[5] Jennifer Rimm, Booming Baby Business: Regulating Commercial Surrogacy in India, U. Pa. J. Int’l L. 1429, 1436 (2014), https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1837&context=jil. Commercial surrogacy agreements are controversial because money is exchanged for use of another’s body like prostitution. Id.

[6] See Kevin Ponniah, In Search of Surrogates, Foreign Couples Descend on Ukraine, BBC News (Feb. 13, 2018), https://www.bbc.com/news/world-europe-42845602.

[7] Id.

[8] Selling Surrogacy is a Step Towards Slavery as Women are Dehumanised, The Scotsman (Jan. 24, 2019), https://www.scotsman.com/news/opinion/selling-surrogacy-is-a-step-towards-slavery-as-women-are-dehumanised-1-4861066. When a mother “receives remuneration or any other consideration for the transfer of the child, a sale occurs, as defined under international human rights law.” Id.

[9] Dr. Brian Tobin, Ireland’s Proposed Surrogacy Laws Fail to Acknowledge International Arrangements, BioNews (Feb. 11, 2019), https://www.bionews.org.uk/page_141378.

[10] Id.

[11] Surrogacy in Ireland: What Do I Need to Know?, everymum (2018), https://www.everymum.ie/getting-pregnant/fertility/surrogacy-in-ireland-what-do-i-need-to-know/

[12] Id.

[13] Rimm, supra note 5, at 1429. “Fertility tourism is often motivated by prohibitions or restrictions on the use of reproductive technologies at home.” Id.

[14] Id.

[15] See generally Ponniah, supra note 6.

[16] Id.

[17] Tobin, supra note 8.

[18] Id.

[19] See id.; see also Voskoboynik, supra note 4.  

[20] See Ponniah, supra note 6. Gestational surrogacy costs between $110,000 and $150,000 in the United States and only $45,000 in Ukraine. Voskoboynik, supra note 4.  

[21] Ponniah, supra note 6. Ukraine "has found itself almost accidentally as one of the handful of nation-states which allow surrogacy tourism." Id.

[22] Id.

[23] Id.

[24] Id.

[25] Dr. Brian Tobin, Opinion: Long-awaited Surrogacy Laws Still Won’t Recognise Many Parents, The Journal IE (Mar. 4, 2019), https://www.thejournal.ie/readme/opinion-long-awaited-surrogacy-laws-still-wont-recognise-many-parents-4513551-Mar2019/.

[26] Ponniah, supra note 6.

[27] See id.; see also Tobin, supra note 24; Tobin, supra note 8.

[28] Provided he is the genetic father. Tobin, supra note 24.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Need to Reform Sperm Donor Law Hits Home, Irish Examiner (Feb. 14, 2019), https://www.irishexaminer.com/breakingnews/views/analysis/need-to-reform-sperm-donor-law-hits-home-904316.html.

[34] Id.

[35] Rimm, supra note 5, at 1429.

[36] See Ponniah, supra note 6.

[37] Tobin, supra note 24.

[38] Id.

[39] Id.

[40] Id.  

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