Stateless Babies & Adoption Scams: A Bioethical Analysis of International Commercial Surrogacy

Truth is often stranger than fiction, and nowhere is this more evident than when examining the real stories related to international commercial surrogacy that have occurred in the last few years. This Article utilizes these recent cases to analyze this industry using a bioethical lens. Bioethicists use stories effectively to demonstrate how theory and normative ideals apply to real world situations. By detailing examples of some of the unique scenarios that have arisen in far-flung cities of India, the United States, and the Ukraine, this Article highlights some of the bioethical dilemmas such stories raise. This Article examines these stories using the classic theoretical bioethics framework to demonstrate the need for clarification of state or national regulation and international guidelines related to international surrogacy. Global surrogacy is more popular than ever due to advances in technology allowing for gestational surrogacy, rather than traditional surrogacy. In a traditional surrogacy arrangement, a surrogate becomes pregnant via artificial insemination by sperm from the intended father or donor sperm. Because her own egg contributes to the embryo, a traditional surrogate carries her own genetically related child and agrees to give it up upon the baby’s birth. Due to well publicized cases where traditional surrogates decide they wish to raise the infant that they have carried, and due to public sympathy of these surrogates due to their genetic tie to the infant, gestational surrogacy, where there is no such genetic tie, has become vastly more popular than traditional surrogacy. Gestational surrogacy refers to the process whereby an embryo is created with an egg and sperm from the intended parents (or from donor eggs and sperm) through an in vitro fertilization procedure and is then transferred into the uterus of a genetically unrelated surrogate. Gestational surrogacy has largely replaced traditional surrogacy in the world of international surrogacy - and it is indeed a “world” of international surrogacy. The popularity of medical tourism, whereby consumers of health care travel around the world to receive cheaper medical care, has spread to reproductive tourism. International or global surrogacy is a booming business. Although some have written with concern about the potential exploitative nature of international surrogacy, the Western press has mostly positive press reports about success stories in international surrogacy. Although many countries still prohibit or restrict surrogacy arrangements, the market for international surrogacy is estimated to be six billion dollars annually worldwide. Some countries, such as India and Ukraine, wish to be seen as international surrogacy meccas by providing quality medical care for a low cost and attempting to provide the most legal protections for intended parents. In the United States and some European countries, the initial stigma associated with using a surrogate to build one’s family than existed a few decades ago seems to have dissipated as these arrangements become more commonplace. Additionally, with the ability of intended parents to research distant parts of the world as potential surrogacy destinations and with lower costs associated with a competitive global marketplace, intended parents who were previously unable to consider a surrogacy arrangement due to financial constraints, are viable fertility tourists. This Article uses cases of surrogacy in Ukraine, India, and the United States as examples. These countries have been at the forefront of the booming international surrogacy industry. The field of international surrogacy is relatively new, with participant countries competing to become known as leaders in this field. California has a long history with surrogacy. Due to its developed system of surrogacy, it is perceived as an attractive international surrogacy option for those who can afford the high cost of surrogacy in the United States. India has also emerged as a global leader in surrogacy in the developing world. Ukraine is quickly gaining traction as a destination of choice. This Article using these stories involving surrogacy in the United States, India, and Ukraine to highlight similarities and differences in the surrogacy experience in countries active in the international surrogacy market. This Article first tells the story of a recently uncovered baby-selling ring that exploited aspects of both surrogacy and adoption law and involved two countries active in international surrogacy: the United States (California specifically) and Ukraine. Then, this Article explores stories in India and Ukraine involving babies lost in legal limbo due to the inconsistencies of surrogacy law in different countries. Next, this article discusses the gestational surrogacy landscape in the United States, India, and Ukraine and examines the laws and regulations related to surrogacy that exist in each country. Finally, this Article discusses bioethical concerns raised by the stories as they relate to each of the parties involved in commercial surrogacy-the intended parents, the surrogates, and the infants. I use this bioethical framework to deconstruct the stories of commercial surrogacy to identify areas where the current global surrogacy market could stand to change.