Surrogacy divides 'mother' into 3 optional, purchasable roles

Last month, the United Nations Population Fund (UNFPA) quietly proposed a “right” to surrogacy in a policy document on the subject of “advancing sexual and reproductive health and rights in the private sector.”

In this position paper, UNFPA includes a glossary of terms, which defines “comprehensive family planning” as “a holistic approach to family planning and formation. It encompasses family planning services, a variety of contraceptive methods, fertility treatments, adoption, fostering and surrogacy.”

Family planning is a central part of UNFPA’s work, which it asserts is a human right.  Additionally, the UN agency declares that it is “central to gender equality and women's empowerment, and it is a key factor in reducing poverty.” The basis for the assertion that family planning is a human right is found in documents that presume that family planning primarily involves the limitation and spacing of births within a family. Most importantly, the International Conference on Population and Development (ICPD) framed the right to family planning as the right of all couples and individuals to “decide freely and responsibly the number and spacing of their children and to have the information, education and means to do so.”

In 1994, the year the ICPD was convened, the UN’s understanding of family planning was essentially synonymous with contraception, with the caveats that it also included non-contraceptive methods such as those based on fertility awareness, and critically, that abortion was not to be promoted as a method of family planning. By positioning the limitation of births within families rather than governments, the ICPD was also a crucial move away from the coercive population control policies that had arisen in prior decades.

Within the UN system, the framing of family planning as a right has historically been framed as the right of couples and individuals to limit their fertility, with the requisite knowledge and means to do so, independently of governmental coercion. Absent from this understanding is any notion of the right to have a child by whatever means necessary.

However, there are worrying indications that this understanding is slipping. Earlier this year, the Committee on the Elimination of Discrimination against Women (CEDAW), which monitors compliance with the UN treaty on women’s rights, urged the Republic of Korea and Singapore to ensure that assisted reproductive technologies, such as in vitro fertilization, are available to single women and those in same-sex relationships, not only married heterosexual couples. The Committee told Singapore to “[r]ecognize the equal right of all women, including those in same-sex relationships and non-married women, to parenthood through assisted reproductive technology.” 

The Universal Declaration of Human Rights, one of the founding documents of the UN, refers to the right of men and women to “marry and found a family.” However, the notion that one has the right to parenthood entirely unmoored from a family, and which would require biological inputs from outside donors, is not based in internationally recognized human rights, and carries dangerous implications.

The Convention on the Rights of the Child, which is the most widely-ratified human rights treaty, asserts that a child has “as far as possible, the right to know and be cared for by his or her parents.” This right is violated by design when reproduction is assisted by donor sperm, eggs, and “gestational carriers,” fertility-speak for “birth mothers,” who will be cut out of the child's life by contract. The exploitation of women is also a key issue, both internationally and within countries. Both egg selling and surrogate motherhood impose health risks on women, particularly poor women in developing countries whose services are sought by individuals or couples from richer nations.

As the UN and other bodies have speciously expanded the language of “rights” they have watered down the reality of natural rights and threatened the actual rights of vulnerable members of society. As a refresher, something is a natural right when the following criteria are met:

• Natural rights exist pre-government.
• No one has to provide you with a natural right.
• A natural right is distributed equally — no one has more or less potential to exercise these rights.

Surrogacy does not pass a rights test. A child’s right to his own mother and father, on the other hand, does. The natural family unit — mother, father, and child — exists pre-government. No one has to provide a child with parents — each one of us by virtue of our existence naturally has a mother and father. Finally, that right is distributed equally — each one of us naturally has exactly one mother and father, the two individuals from whom we came.

Far from being a natural right, surrogacy violates the natural rights of children by dividing the person of “mother” into three separate optional and purchasable roles: the genetic mother, the birth mother, and the social mother. Depending on the nature of the surrogacy arrangement, the child involved will always lose her birth mother, will often lose her genetic mother, and will sometimes be raised without the daily, loving presence of a social mother.

Every instance of surrogacy involves a loss for the child involved at a crucial moment in their development. Mother-child bonding begins in utero. An infant knows her mother before birth and instinctively turns to her as a source of safety and provision. For an infant, the continuation of that bond after birth teaches the child to keep developing healthy attachments.  Research shows that maternal separation at this stage is a major stressor for an infant, and may even cause permanent alterations in brain structure.

Furthermore, children of commercial surrogacy face the experience of being exchanged for money. This is an affront to human dignity and exposes children to the risk of being obtained by bad actors who would never pass an adoption screening.

Calling surrogacy a right is not only dangerous to children and a grave violation of their rights, but it is also dangerous to the women whose bodies are being rented out. The European Society of Human Reproduction and Embryology released findings last week that surrogate pregnancies are over twice as likely to result in severe maternal complications as natural pregnancies. Earlier research indicates that healthcare disparities heighten this risk — a particularly pressing concern as surrogacy is held up as an opportunity for low-income women. Carrying a genetically unrelated child poses health risks to the mother, and by extension, to the child.

Furthermore, a “right” to surrogacy alarmingly implies a right to a child and a right to the bodies of women who will carry those children, making it abundantly clear that this is no natural right. Regarding surrogacy as a right fuels a demand for women to sell their eggs and rent their wombs, even against their will. One needs to look no further than the link betweenprostitution and human trafficking to see that when the demand for human bodies exceeds the supply of willing participants, exploitation and abuse step in to fill that gap.

Even when there is no coercion or payment, no child willingly undergoes the trauma of maternal loss. In surrogacy arrangements where every adult consents, the contract is honored, and no complications ensue, the child has still been the victim of a grave injustice and has been treated as property. From the child’s perspective, there is no such thing as just surrogacy. An arrangement that can never be just for the most vulnerable party must never be regarded as a right.

Unfortunately, the UNFPA has signaled that they are willing to call this wrong a right. Their use of “rights” language to describe surrogacy here will no doubt be repeated in the future. As surrogacy gains popularity among adults, children become victimized and women face the dangers of exploitation. Rights do not come at the expense of the vulnerable. The UN, of all bodies, should recognize this.