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Commercial baby deals ‘result in exploitation’

The European Society of Human Reproduction and Embryology (ESHRE) has said that only non-commercial surrogacy is an acceptable method of assisted reproduction.

ESHRE works in the field of reproductive biology and medicine, advocates for improvements in scientific research, and fosters harmonisation in clinical practice. 

The research organisation has released its position paper on surrogacy, and concludes that it is an especially complex practice as the interests of the intended parents, the gestational carrier, and the future child may differ.

Legislation varies from a complete ban in several European countries (such as France, Germany, Italy, Poland, Austria, Sweden, Norway, Switzerland and Spain) to surrogacy being legally accepted as long as it is altruistic/non-commercial (such as Greece and Britain), to allowed but not legally regulated (Belgium), or contract-based and commercial (such as the USA).

Legal bans

The legal bans on surrogacy have led to commissioning parents going abroad to access treatments unavailable in their own country, mostly in a commercial setting.

This leads to difficulties in the recognition of the citizenship status of the children upon return to their home countries.

In 2024, Italy passed a bill criminalising people who seek surrogacy abroad, with penalties including imprisonment and high fines.

Several traditional destination countries for surrogacy, such as India and Thailand, have introduced bans on foreign commissioning parents after cases of abandoned offspring led to worldwide outcry, the ESHRE points out.

The recent revision of the EU Directive on Human Trafficking (Directive 2011/36/EU) considers exploitation of the surrogate by means of coercion, deception, or abuse of power as a form of human trafficking.

Health risks

In a surrogacy arrangement, the benefits and harms are not equally distributed between all parties involved, the ESHRE paper states, since a pregnancy always involves health risks.

Therefore, only single embryo transfer is acceptable in any surrogacy arrangements, it adds.

The psychological consequences for the children of the gestational carrier of handing over the newborn sibling are still mostly unknown, the paper points out.

There are also serious justice concerns in the context of surrogacy, ESHRE says, with concerns about exploitation linked to both low and high payments.

‘Undue inducement’

“Distributive justice requires that a gestational carrier receives adequate compensation to offset the risks and burdens she assumes for the intended parent(s).

“There is also a social-justice concern that payments will lead to a disproportionate burden on women who are living in poverty,” the paper says.

Reimbursement should not induce women to become a gestational carrier against their best interests, as this is unethical, it states.

‘Undue inducement’ will push women towards a practice that they would never have engaged in if they were not in a financially vulnerable position.

In societies with high levels of income inequality, it will be practically impossible to determine when ‘fair compensation’ becomes an undue inducement, the paper points out.

Infringement on human dignity

The paper adds that arguments against substantial payment are a matter of justice, and can be expressed as an infringement on human dignity, the exploitation of vulnerable women, an instrumentalisation of the female body, and commodification of reproduction.

This is especially so when the gestational carrier is in a low-income country, and the commissioning parents are from a high-income country, as is almost always the case.

“Without making the strong claim that there is no theoretical possibility of organising commercial surrogacy in a way that respects ethical standards, we do commit to the more modest claim that commercial surrogacy arrangements are more likely to result in exploitation than non-commercial ones and, therefore, should be avoided,” the paper concludes.

ESHRE concludes that only altruistic or non-commercial surrogacy is acceptable, and it should only include reimbursement of reasonable expenses and compensation for loss of actual income related to the pregnancy and delivery.