Renting wombs and buying babies – tackling the surrogacy industry

Last week I was part of an expert panel on surrogacy via Zoom with UN Special Rapporteur, Reem Alsalem, and women from all over the world.

I was invited to participate because we, meaning the Women’s Rights Party NZ and Women’s Declaration International NZ, responded to a call for input on violence against women and girls issued by the UN Special Rapporteur, who is preparing a report on surrogacy which she will present to the UN General Assembly 80th session in early October this year.

It sounds like a big deal and indeed it is, because out of this process could be recommendations for international action to curb or ban the trafficking of women and babies through the surrogacy industry, which, at the heart of it internationally, is about ‘renting wombs’ and ‘buying babies’.

Almost all the 30 or so panellists from Spain, Portugal, Italy, Germany, Brazil, UK, Australia, New Zealand, and others, were opposed to surrogacy as a form of exploitation of women and children.

The exception was a man from the Australian group ‘Rainbow Families’ who has a 4-year-old girl with his male partner through surrogacy. He explained that while he was in the meeting, his daughter was with her “other Dad” at ballet class.

We discussed ‘celebrity surrogacy’ and the glorification of what is the deliberate act of taking a baby from its mother to satisfy career ambitions, personal preferences, and the need for status symbols. More than 20 very well-known celebrities have children by surrogacy, some have two or more surrogate-born children, some are single male parents, and many are aged in their 50s.

The organisation ‘Surrogacy Concern UK’ has reported that the number of surrogacy arrangements has been rising rapidly with the widespread use of assisted reproductive technology. Where in the 1990s most surrogacy arrangements were for women who couldn’t have their own babies, now many of those seeking surrogate mothers are gay male couples or single men.

Of the 500+ parental orders in England and Wales in 2023, there were 293 to couples or single intending parents aged over 50, and 43 intending parents were aged over 60.¹

Social reasons, including celebrity influencers, were identified as a factor in the increase in surrogacy.

There were three topics for discussion during the Zoom session, and they were divvied up one hour at a time. The first topic being children’s right to know and be cared for by their parents, including a child’s right to information on being born through surrogacy; the second was the rights of a surrogate mother; and the third was policy recommendations for the report that Reem Alsalem will present to the UN General Assembly 80th session in October.

In the preamble of the Convention on the Rights of the Child (UNCROC), the UN proclaims that children are entitled to special care and assistance, including appropriate legal protection, both before as well as after birth.

The family is recognised as the fundamental group of society and the natural environment for the growth and well-being of all its members, particularly children, and therefore families should be afforded the necessary protection and assistance so they can fully assume their responsibilities within the community.

Article 3 of UNCROC states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The Women’s Rights Party states in our Policy Platform that children of surrogacy are not a commodity to be handed over as part of a transactional arrangement.

I reported that the New Zealand Government has been considering new surrogacy arrangements since 2021 under the then Labour Government. The proposed legislation aimed to simplify surrogacy processes and establish clear mechanisms to enforce surrogacy agreements.²

Had we been around at the time, the Women’s Rights Party would have strongly opposed the original Labour Government’s bill, because it did not protect either the interests of the birth mother or the baby, and failed to recognise that even in utero an unborn baby is already interacting with her or his birth mother physically and psychologically.

Despite our reservations about surrogacy, we have supported some of the changes in the revised bill of the current Coalition Government, which now puts the surrogate-born child at the centre, as suggested by the Law Commission when it reviewed the original Bill in 2022.

New Zealand ratified the Convention on the Rights of the Child in 1993, committing successive governments to implementing the rights set out in the Convention, including children’s right to information. I was able to report that the ‘Improving Surrogacy Arrangements Bill’³ , currently making its way through Parliament, does address the issue of access to information.

We agree that surrogate-born children should have the opportunity to learn about their genetic and gestational origins and whakapapa (family history), and that there needs to be a mechanism to allow them to access that information in the future.

The revised billprovides that surrogacy services must ensure the birth mother and donor are aware that a surrogate-born child may obtain access to the information under the Births, Deaths, Marriages, and Relationships Registration Act 2021. The surrogacy service would also have to provide the Registrar-General with the information that the service has obtained about the surrogate, the donors whose donation resulted in the birth of the baby, and the surrogate-born child.

If the surrogacy arrangement did not involve a surrogacy service, the birth mother would have to provide the intended parents with all the information required to register the child’s birth. The birth mother would provide this information at the same time as providing her statutory declaration relinquishing her legal parentage of the baby or immediately afterwards. It should be noted that babies do not have to be registered in New Zealand until they are six weeks old.

Until that time, the birth mother of a surrogate-born baby is the sole parent and guardian of the baby. However, in the case of an approved surrogacy through a surrogacy service, (an arrangement that has been through the ethics committee or review panel), it is proposed that the intending parents could be additional guardians of the baby until parentage of the baby is transferred.

This seems to be inconsistent with a time period for the birth mother to fully consider her decision and ties in with the second question we were asked to consider; the question of consent of a surrogate mother and to what extent and under what conditions it can be free and informed.

New Zealand law does not currently afford any automatic rights to the intending parents of a baby born via surrogacy. At the time of birth, the child’s legal parents are the birth mother and her partner⁴, and a formal adoption process is required to complete the arrangement. Any prior agreement is not legally enforceable, i.e. intending parents can’t go to Court to get a compliance order.

We have supported the current adoption process, as it better provides for the interests of the birth mother as the first legal parent with rights to her reproductive autonomy and freedom from exploitation, particularly during her pregnancy and birth.

By contrast with the current adoption process, the original Labour Government’s bill would have provided the intending parents with automatic legal status at the point where custody of the child was transferred, which could be at the birth. From the birth of the child, the surrogate mother and her partner would not, for any purpose, be considered parents of any child of the pregnancy and would no longer have the rights and liabilities of parents of the child.

That original bill allowed for some or all of the parties to a surrogacy arrangement to apply to the Court to make a surrogacy order determining that the custody of any child resulting from a pregnancy under the surrogacy arrangement must transfer from the surrogate to the intending parents within ten days of the birth of the child.

The revised bill, as it is currently written, provides for a seven-day period following the birth during which the birth mother cannot relinquish her legal right to the baby. I reported that we thought the period of reflection after the birth was too short for both mother and baby. In New Zealand you can’t pick up your puppy from a breeder until it is 8 weeks old, and yet this law would treat human babies worse than puppies!

Some panellists didn’t agree that we should even be engaging in discussions about surrogacy arrangements, as it gives legitimacy to a practice that inevitably violates women’s physical and reproductive integrity.

We agree that the surrogacy arrangements currently being proposed in New Zealand can never eliminate the coercive element inherent in the practice of surrogacy, even in the case of ‘altruistic’ arrangements. In our recent round of Women’s Rights Party regional meetings, one woman talked about how she would have felt obliged to carry a baby for her sister who was unable to have one of her own. She was relieved her sister hadn’t asked.

Other members who had been adopted at birth said little thought is given to the long-term interests of surrogate-born babies or their birth mothers. They likened surrogacy to the widespread practice in the 1950s and 1960s of taking babies of unwed teen mothers from their mothers at birth and putting the babies up for adoption. Many of those babies, now adults, and their mothers suffer intense grief to this day, even where the adoptive parents provided a loving home.

However, the fact is that unfortunately New Zealand is not alone in reviewing surrogacy laws, and by not engaging in that legislative process the rights of the birth mothers and babies may not be protected. The UK and Australia are also looking at revising their surrogacy legislation.

There is a push by intending parents who worry about surrogacy agreements not being binding, and fear what might happen if the surrogate mother does not hand over the baby after the birth. Equally, surrogate mothers may fear that the intended parents will not assume responsibility for their baby, especially if the baby was born with a disability, or was of the ‘wrong’ sex.

The development of technologies such as assisted reproductive technology (ART), including in vitro fertilisation (IVF), have opened the door to a boom in surrogacy involving egg harvesting and embryo transfers where the surrogate mother may be carrying a baby that is not genetically related to her.

It turns out that Spanish law only permits the adult who is biologically connected to a child born through surrogacy — usually the father — to be registered as its parent; the other partner must apply for adoption after the surrogate mother has formally relinquished the child.

Surrogacy arrangements raise ethical issues for women related to reproductive freedom, health, and well-being. The autonomy and rights of women who are undertaking pregnancies and birthing for surrogacy purposes (and who are undertaking risk in doing so), must be taken into account.

There was concern that women who enter into surrogacy arrangements, convincing themselves that they would merely be carriers, may find themselves traumatised and devastated by having to give the baby up.

At times there was heated debate as we discussed abolition of surrogacy with some suggesting criminalising the commissioning parents, similar to the Nordic model of criminalising buyers in prostitution.

I got the impression that most supported bans on international surrogacy from countries like NZ where commercial surrogacy is illegal (this is also our Women’s Rights Party policy). Even here, the presence of fertility services promoting surrogacy services on our TV screens to those with the financial ability to pay for such services, means surrogacy is a commercial service, and the women and babies are commodities in a commercial transaction through the third party.

The Spanish and Italian panellists reported that surrogacy is illegal in both of their countries. In fact, several EU countries prohibit surrogacy, but citizens routinely skirt the ban by hiring surrogates in foreign countries and registering the children abroad. Opposition to that loophole has become a unifying issue among politicians —both from the far right and the far left— who are usually otherwise diametrically opposed.⁵

In Italy, right-wing Prime Minister Giorgia Meloni has cracked down on the practice because surrogacy had become an increasingly popular option for the country’s gay male couples, who are banned from adopting children. From 2023, only biological parents can be registered on birth certificates. Last year, Meloni’s government made traveling abroad to have a baby through surrogacy a criminal act.

Surrogacy has been prohibited in Spain since 2006. But for years, Spanish couples have successfully registered children born through surrogacy in other countries by providing foreign court rulings recognising them as the baby’s parents. Up until now, those documents had been sufficient for diplomats to authorise the child’s inscription in the Spanish Civil Registry, but the situation changed last December when Spain’s Supreme Court ruled that procedure to be illegal.

Prime Minister Pedro Sánchez’s left-wing governments have moved to tighten the ban because they object to the practice on feminist grounds. In the 2023 revision of the country’s abortion law, surrogacy was described as a form of violence against women, and last year’s Supreme Court ruling condemned the practice as “an attack on the moral integrity of the pregnant woman” and a measure that treats children as “mere commodities”.

As of April this year, the Spanish government banned its embassies and consulates from registering children born through surrogates in foreign countries. All pending registration processes were cancelled and diplomats were forbidden from accepting certificates issued by foreign countries in which Spanish citizens are recognised as the parents of a child born through surrogacy.

New Zealand authorities warn that international surrogacy raises significant ethical, legal, and social issues. The birth of a baby to a surrogate mother in one country, where the intending, and often genetic, parents are from another country, involves enormous legal complexities.⁶

Children born through international surrogacy do not meet the requirements of New Zealand citizenship by descent. Even if there is a genetic link between one or both of the intending parents and the child, the child will, in most cases, have only temporary immigration status in New Zealand and will not be entitled to New Zealand citizenship or a New Zealand passport. The decision to grant a temporary visitors’ visa is made by the Minister of Immigration using a set of non-binding guidelines.

The child does not have an automatic right to enter New Zealand unless their surrogate mother does. In the process of transferring legal parenthood to intending New Zealand parents, New Zealand child welfare authorities need to assess their suitability as adoptive applicants, and documents obtained overseas must meet the requirements of the Adoption Act 1955.⁷

The argument was made that it was up to countries with stronger regulations to take action to ban their citizens from accessing surrogacy in ‘permissive’ countries, like the bans Spain and Italy have imposed.

Surrogate mothers often live in countries where there is widespread poverty, weak regulations and laws around surrogacy, and poor health standards. This increases the risk of humanitarian problems where the surrogate mother and child may be vulnerable, and their rights not well-protected.

Having a baby via surrogacy is not a human right. There is no societal duty to provide babies to those who cannot have their own children, and certainly no requirement on poorer countries to provide babies for citizens of wealthier nations.

As one panel participant pointed out, when international adoption was banned in many countries, the market dried up and the ‘orphanages’ were emptied.

I thought this comment from Anna Kerr, Feminist Legal Clinic in Sydney, summed it up well:

“If there was no market for surrogacy, this would not be a problem. We need a public health campaign raising awareness of the unique importance of the attachment between a mother and child, the significant risks of child sex abuse and the important safeguarding role played by mothers in keeping children safe.”

END NOTE: I have used the term “intending parents” which is common in the New Zealand context, but the international panellists all use the term “commissioning parents”. I have also used “birth mother” as well as “surrogate”, and “baby” as well as “child”; the latter are terms used in the New Zealand legislation, which I see as sugar coating the impact of surrogacy on women and babies.