With the focus on surrogacy arrangements usually on intended parents, egg providers, and gestational mothers, issues related to children are often overlooked. Some of these issues emerge from specific practices within surrogacy arrangements and a patchwork of laws that can differ from country to country.
Legal and Social Considerations
Intended parents often are not told that laws in their own country differ from laws in the country where a child is born –- or how these differences can affect their arrangement.
Variation in law on the status of surrogacy, citizenship of children, and definitions of who is (or is not) a “legal” parent, for example, can challenge an intended parent’s ability to claim parentage. Related paperwork can also be burdensome, especially if the intended parents are not ready with documents they will need to leave a foreign country and re-enter their own with a child.
These differences can lead to confusion, unexpected expenses, and travel delays. In worst-case scenarios, children can be left “stateless” or forced to remain in their country of birth.
Baby Gammy’s abandonment in Thailand after a diagnosis of Down’s Syndrome, or the predicament in Nepal after the earthquake in 2015, are recent and specific examples of the legal limbo in which children can be left. While some experts do not believe a coherent approach to dealing with the risk of stateless children exists at this time, they strongly suggest that intended parents seek advice from a lawyer with expertise in international law and citizenship before entering a surrogacy arrangement.
Unresolved legal parentage in the parents’ home country can also be a problem if a couple divorces and disagrees over the custody of a child, as well as related legal issues such as financial support, inheritance, and other state-granted benefits.
Finally, there have also been instances of children “adopted” by individuals with criminal records in their own country who still were able to enter into surrogacy arrangements somewhere else.
Health and Medical Risks
According to the Centers for Disease Control and Prevention, women who conceive through assisted reproductive technologies are at higher risk for preterm birth because they are more likely to carry multiples. Gestational mothers are at even higher risk because pressure on agencies and clinics to increase chances of live births has resulted in a common practice of implanting multiple embryos. This is contrary to medical wisdom and, in some places, laws that cap in vitro fertilization cycles and the number of embryo transfers.
Multiple pregnancies can result in premature or preterm births at lower than average birth weights. The American College of Obstetricians and Gynecologists (ACOG) reports that children born as a result of multiple pregnancies are at increased risk of prematurity, cerebral palsy, learning disabilities, slow language development, behavioral difficulties, chronic lung disease, and developmental delays. The World Health Organization says similarly, recommending that induction or cesarean section births should not be planned before 39 weeks, unless medically indicated.
Medically unnecessary cesarean sections, however, are routine, both for the convenience of intended parents and to increase the speed and volume of births at fertility clinics. Though life-saving when needed, the indiscriminate use of cesarean sections on gestational mothers is concerning. For all children, according to Childbirth Connection, it can lead to breathing problems and reduced blood low from the placenta to the newborn at birth; longer term implications include risks related to childhood-onset diabetes, asthma, food sensitivities and allergies.
Intended parents can play an important role in minimizing some of these health risks by, for example, insisting a gestational mother be allowed to birth vaginally (unless otherwise indicated by her or her medical provider) and agreeing to a single embryo transfer. For those parenting a preterm child, March of Dimes offers a simple overview of what they can expect and do to care for their newborn.
Finally, a gestational mother’s health can also have an effect on a pregnancy. Among women in South Asian countries, for example, anemia is common. And while the effects of some physical conditions, such as long-term poor nutrition on pregnancy, are well known, we know less about the potential psychological consequences on children –- both as newborns, being transferred from gestational mothers to intended parents, and as adults, in the absence of information about and contact with their gestational mothers (and egg/sperm providers).
Questions About Identity
These issues raise many questions about the health of children born via international commercial surrogacy, as well questions related to their identity, nationality, and family relationships. Could lessons from other fields help frame some answers?
Advocates of adoption reform, for example, talk about the importance of access to one’s birth records and birth stories. The Donor Sibling Registry was founded in 2000 to support donor-conceived children. The organization assists individuals born as a result of sperm, egg, or embryo donation that are seeking to make mutually desired contact with others with whom they share genetic ties.
The Hague Convention And Beyond
In 2014, at an International Forum on Intercountry Adoption and Global Surrogacy at The Hague discussed many of the issues considered here and elsewhere on this website. The participants included activists, scholars, and policy makers who work on women’s health, children’s rights, and human rights. A report outlining points of agreement, difference, and direction is available to the public.
The Forum was an important step forward. Building on it is next.
Surrogacy360 aims to bridge information gaps by documenting how international commercial surrogacy is practiced and how it affects everyone involved in the surrogacy relationship.
We hope readers will join our efforts to promote best medical practices and transparency. Without collective involvement, there is no way to ensure that expanded reproductive options are available for everyone — and, at the same time, guarantee sound medical care and fair work conditions for those who make these options possible.
Top photo: Adrian van Leen