The war in Ukraine has raised awkward questions about international surrogacy and the rights of vulnerable women in conflict zones. What happens to the surrogate and the child when geopolitical events upset the commercial arrangements of childbearing?
On 24 February 2022, Russia began its invasion of Ukraine, focusing international attention on the possibility of an expanding international conflict. Most international focus has been on the geopolitical implications of Russia’s invasion. But the invasion also significantly disrupted Ukraine’s commercial surrogacy industry, bringing the intersection between private life, intimacy, reproduction and caregiving, and the commercialisation of reproduction, the “hiring” women’s bodies, and the economic and power inequalities inherent in the practice, into the light. An opportunity therefore exists to examine and reframe the scope of our understanding of foreign policy, making explicit the connections between private lives and decisions and international relations.
Surrogacy refers to the practice of one woman bearing a child for another person or couple. This can be either “genetic” surrogacy, wherein the surrogate mother’s egg and the intended father’s sperm is used, or “gestational” surrogacy, wherein the surrogate mother contributes no genetic material. The intended parents may, therefore, contribute all, half or none of the genetic material, meaning that the child may be genetically related to neither, one or both intended parents.
In Australia, altruistic surrogacy is lawful and regulated across all states and territories with the exception of the Northern Territory, which does not have any laws relating to surrogacy. Commercial surrogacy is not legal. The difficulties associated with adoption and altruistic surrogacy, combined with the social and personal desire to have a child or family, causes Australians to seek surrogacy abroad, often ending up in commercial arrangements. Because commercial surrogacy is not legal in Australia, such surrogacy arrangements are brokered through agencies working in some jurisdictions in the United States, Canada, Greece, Georgia, Ukraine, and Russia.
These agencies offer services including the recruitment of surrogate mothers, the collection of genetic material, the monitoring of pregnancies, payment for medical care, compensation for the mothers and, in some cases, offer the guarantee of a baby at the end of the process. They also assist in the completion of the relevant paperwork, which allows the child to gain the necessary passport and therefore citizenship needed to travel with the intended parents back to their home country.
The international commercial surrogacy industry has become increasingly focused on Ukraine since India, Nepal, and Thailand closed their markets due to human rights violations, the abuse of surrogates, and human trafficking. In an industry worth an estimated US$6 billion annually, companies in Ukraine have resisted international calls for increased regulation, meaning that an estimated 2,000 – 2,500 surrogate births occur there every year. The numbers are unclear because companies are not required to register the births of surrogate babies, leaving the path clear for abuse and exploitation of surrogate mothers and the children. Legally, the gestational mother has no prenatal rights and the resulting child belongs to the intended parents. Surrogacy agreements may also specify the type of birth the surrogate mother will have, from one at a state hospital, to a fully natural one.
This is an industry which is deeply problematic for a range of reasons. The United Nations, among other bodies, has identified commercial surrogacy as deeply problematic because of the potential for some arrangements to be classed as the sale of a child, and for some surrogate women to be providing their services under bonded labour arrangements. Even without the potential for forced labour arrangements, and the strong links to sex and human trafficking, it is also the case that in many such arrangements the basis of the commercial surrogacy industry are predicated on the economic imbalance between the intended parents and the surrogate. This makes the free and informed consent of the surrogate questionable, and is the basis of such arrangements being outlawed within Australia.
It is also noteworthy that the public discourse surrounding commercial surrogacy focuses on the rights and interests of the intended parents. Rarely is the position of the surrogate mother interrogated as an individual and person. Ultimately, she is invisible. While studies of surrogates are limited in Ukraine, some reports suggest that the practice of surrogacy results in significant emotional and moral turmoil among women as they are forced to choose between a significant economic opportunity and engagement in a practice which is physically and emotionally taxing, and potentially dangerous.
The very practice of commercial surrogacy is based on the understanding that the surrogate mother carries a child for others, which she has no inherent rights to and should, therefore, develop no emotional connection with. It therefore seeks to sever the bond between mother and child, and commercialises the emotional and physical labour of the surrogate.
These tensions were thrown into sharp relief by the Russian invasion. Intended parents were faced with the prospect of their child being born in a war zone or the surrogate living there while pregnant. And while agencies sought to move their surrogates to safer places, either within Ukraine or across borders, the rights of the surrogates to not leave their homeland or their own families came into direct conflict with the desires of the intended parents.
This situation also raised questions as to who would ultimately be responsible for the child if born within a conflict zone. What if the mother was unable to reach the hospital, required medical care, or if the intended parents could not collect the child? Should the surrogate mother be responsible for caring for the child? If so, should she be required to give the child up if she has started to raise it from birth? What nationality is the child if the paperwork with the intended parents has not been completed? If she gives birth in a country which has different laws regarding parentage, and she wishes to keep the child, could she? What if she wishes to keep the child?
The international industry of commercial surrogacy has been largely absent from discussions relating to foreign policy and international relations. However, it is based on the exploitation of the bodies of women who are economically and politically disadvantaged. The potential and reality of this exploitation is recognised by the banning of commercial surrogacy in many wealthy countries and the closure of the market in some countries previously involved.
Yet contracting arrangements for commercial surrogacy remains a viable option for some couples. Missing from much of the public discussion relating to this is a recognition of the humanity and rights of the surrogates, many of whom surrender some of these rights in return for financial compensation.
These arrangements fall apart when geo-political events intrude, and the rights of the surrogate come into direct conflict with the interests of the intended parents. The surrogacy contract implies that the interests of the intended parents should take priority over the right of the surrogate to decide the shape of her own life. But in extreme circumstances, it becomes clear that this is an impossible situation. The movement of pregnant women across borders to “safeguard” the babies comes at the cost of potentially making the surrogates’ own family more vulnerable.
Behind the tidy language on surrogacy websites lies the experiences of women who are depersonalised and expected to surrender the child without qualm and in return for economic reward. International politics shows that such a façade is flimsy. When geo-political events and international conflict intrude, we are forced to acknowledge the need for foreign policy and international laws to become involved in this deeply personal and private process.
This article has been republished under a Creative Commons licence from Australian Outlook, a publication of the Australian Institute of International Affairs