Ukrainian surrogacy companies now hold over a quarter of the global surrogacy market since a series of human rights violations caused India, Thailand, and Nepal to close their borders. Similar violations are occurring in Ukraine, including the abandonment and trafficking of children and the abuse of surrogates. The Ukrainian government is not taking action, despite concerns expressed by both lawmakers and surrogates that the industry engages in unethical practices. This paper proposes that the Hague Conference’s Experts’ Group on the Parentage/Surrogacy Project spearhead international ratification of a holistic series of policies focused on protecting women and children from exploitation.
Ukrainian surrogacy companies now hold over a quarter of the global surrogacy market (Roache 2018) since a series of human rights violations caused India, Thailand, and Nepal to close their borders to foreigners seeking surrogates. However, similar violations are occurring in Ukraine, including the abandonment and trafficking of children and the abuse of surrogates. The Ukrainian government is not taking action, despite concerns expressed by both lawmakers and surrogates that the industry engages in unethical practices (Bobyn 2018). International standards for surrogacy, like adoption, would protect vulnerable populations in this lucrative market. This paper proposes that the Hague Conference Experts’ Group on the Parentage/Surrogacy Project spearhead international ratification of a holistic series of policies focused on protecting women and children from exploitation.
Money, Opportunity, and Corruption in Ukraine’s Surrogacy Market
The closure of India, Thailand, and Nepal’s markets due to human trafficking concerns has coincided with a spike in global demand for surrogacy (Hawley 2019). Same-sex marriage became legal in the United States and Australia in 2015 and 2017, and same-sex couples represent approximately 40 percent of surrogacy clients (Ray 2018). Prospective parents who drive the global market are primarily residents of the United States, Australia, the United Kingdom, the Nordic countries, and other Western European countries.
In response to these market changes, for-profit Ukrainian-operated fertility companies opened to take advantage of the estimated $6 billion USD annual worldwide market (Antoine 2018). Biotexcom, which is by far the largest surrogacy company operating in Ukraine, currently holds 25 percent of the global surrogacy market; other surrogacy companies also operate in Ukraine but are much smaller (Blanco 2018). Though operating in Ukraine, Biotexcom is not registered as a Ukrainian company. Lawyers and Ukrainian officials have been unable to regulate the company due to this technicality (Hawley 2019). Ukrainian officials temporarily placed the founder, Albert Tochilovsky, under house arrest in 2018, given credible suspicions of child trafficking and tax evasion. However, no proceedings have been brought against him (Hawley 2019).
Today, an estimated 2,000 babies are born via surrogacy in Ukraine every year (Roache 2018). Data surrounding surrogacy is minimal, as companies are not required to register surrogacy births. Similarly, data on exploitation and criminal activity is inadequate. In 2011, an unidentified foreign embassy in Ukraine raised human trafficking flags after the DNA test of a supposed surrogate baby did not match the client parents (Antoine 2018). Surrogates have also claimed that companies paid them as little as $350 USD, though the cost to clients is between $45,000 and $55,000 USD (Blanco 2018). Additionally, there are limited studies that investigate the long-term physical and mental impact surrogacy may have on both surrogate mothers and children born from surrogacy.
While proponents claim that women freely choose to become surrogates, vulnerable women are often manipulated through the presentation of choice.
In the few journalistic reports conducted in Ukraine, surrogates have expressed feeling “morally tired” (Bobyn 2018). While proponents claim that women freely choose to become surrogates, vulnerable women are often manipulated through the presentation of choice. Potential surrogates are forced to choose between providing for their families through a practice that may violate their moral beliefs or forfeiting a financial opportunity to provide for their families. Ukrainian officials have seen firsthand the moral turmoil experienced by surrogates throughout their pregnancies. Ukraine’s Ministry of Justice reports that around 25 surrogates per year appeal to keep their surrogate babies (Blanco 2018). Policymakers must explore the long-term implications of women choosing between financial opportunity and deeply held beliefs.
As a leader in international parentage, the Hague Conference formed the Experts’ Group on the Parentage/Surrogacy Project to determine policy recommendations that may result in an international convention on surrogacy and parentage. While the Experts’ Group has yet to finalize their policy recommendations, previous experts’ groups have dramatically impacted family law worldwide, such as through the Hague Adoption Convention of 1995, which drastically improved ethical practice in international adoption. Since the Experts’ Group was formed in 2015, Ukraine has become an increasingly important player in the global market of surrogacy. The Experts’ Group is in the process of creating important policies regarding international parentage which emphasize the rights of clients and governments involved in the surrogacy process, but their discussion treats the exploitation of women and children as a related, rather than central factor (HCCH 2019).
Challenges to Regulating Surrogacy
Developing economies like India, Thailand, and Nepal have outlawed compensated surrogacy due to human rights concerns. Most developed countries have banned all surrogacy, with the exception of the United States, where surrogacy laws are left to the states. Russia and parts of Eastern Europe are the only jurisdictions where surrogacy is distinctly legal at the national level. This contrast highlights the impact of countries’ power on the industry. Due to human rights concerns, most developed countries ban the practice nationally; however, they do not prohibit their citizens from supplying demand to markets in less regulated foreign countries.
There are no unified, international standards for safety and ethics in the surrogacy market. Such international standards are not uncommon in matters of family law. The Hague Convention, created in 1994 and ratified by 90 member states worldwide, is thought to have drastically improved standards in international adoption (U.S. Department of State 2019). A similar international standard is necessary for effective industry regulation of surrogacy.
Exploitation of surrogates is a major concern. More than 150 women apply to be surrogates every month in Ukraine, due largely to financial need (Bobyn 2018). In most surrogacy contracts, women give up all rights related to controlling their pregnancies. While there is no large-scale data, surrogates report undergoing forced abortions of fetuses unwanted by clients, significant underpayment, unsafe and oppressive living environments provided by surrogacy agencies, poor health care for both birth and pregnancy-related complications, and long-term physical damage due to the surrogacy process (Roache 2018). There is also reported psychological damage, with some surrogates feeling forced to violate their deeply held moral beliefs due to financial pressure.
Surrogacy puts children at risk. While total numbers are undocumented, there are consistent reports from India, Nepal, Thailand, and now Ukraine, of client parents abandoning unwanted children, particularly those with disabilities (Hawley, 2019). These countries are largely unable to provide the specialized care these children need, leading to neglect. Because these children are not technically Ukrainian, abandoned children are left stateless, and thus ineligible for adoption.
Parents are at risk of ill-treatment from surrogacy companies. Contracts state that surrogacy companies are not responsible for failed pregnancies, or any care after birth. Companies often fail to communicate with clients as to why their embryos fail to implant, or even in some cases, how embryos have become “lost” (Roache 2018).
Ukrainian lawmakers report resistance to regulating the surrogacy industry because it provides a significant economic boost to Ukraine through increased inbound capital flows. The surrogate market brings over $1.5 billion USD to Ukraine annually (Antoine 2018).
Lack of Data
A lack of available data makes it difficult to recommend data-driven policies regarding surrogacy. This is particularly true regarding long-term physical and psychological impacts that surrogacy may have on both surrogates and children born from surrogacy.
Why Current Policy Approaches Do Not Work
Surrogacy Bans (current policy in India, Thailand, Nepal)
In democratic nations, this policy would be difficult to implement, as it would need to be ratified by varying levels of government and, potentially, even voters. Additionally, a surrogacy ban could potentially drive the market underground or to third country markets, as happened in Ukraine after the closure of surrogacy markets in India, Thailand and Nepal. Additional bans could mean that surrogates are exploited more than they currently are, given the potential increased flow of demand into Ukraine and the government's inability to regulate. If children are born using illegal surrogates, biological parents may be discouraged from documenting their births, leading to problems integrating the children as full citizens.
Focus Primarily on Parental Rights (current track of the Experts’ Group)
The Experts’ Group is considering a policy that would provide international parental rights standards for surrogacy cases and define the relationship between the surrogacy government and client government. However, this policy would take power away from surrogates, and do little to address issues of exploitation. Nevertheless, clarifying the legal rights and obligations of parents is still an important part of any future policy. If composed properly, parental rights laws could also impose additional responsibilities on parents who try to abandon babies born via surrogacy. Strengthened parental rights would empower biological parents to secure birth documents which list them as the legal parents of the child. This would allow biological parents to expedite citizenship processes for their children.
The Experts’ Group should develop and encourage the international ratification of a holistic series of policies focused on protecting women and children from exploitation. The policies should include:
Citizenship Rights for Children
Children should be granted citizenship and placed for adoption if not claimed by biological parents within 30 days of birth. This protects against child exploitation by granting children a representative state. Reports from Ukraine, India, Thailand, and Nepal show that many biological parents abandon disabled children born from surrogacy, leaving these children in developing countries that often lack the capacity to provide medical care and high quality of life. Because children born from surrogacy are not automatically recognized as citizens of their birth country, they are ineligible for adoption and remain in limbo until they are institutionalized or abandoned. Thus, granting these children automatic citizenship would give them the chance for adoption.
Accreditation Bodies and Standardized Data Collection
The creation of national accreditation bodies that monitor and approve the licenses of surrogacy organizations would create market standards that equip all countries with the legal power to regulate the industry in their countries. This was seen to be true of the Hague Convention of 1994, where all participating nations created regulatory bodies granting qualifying adoption agencies licenses to practice. As a part of accreditation, standards of recordkeeping and reporting for accredited surrogacy companies would decrease abuse of both surrogates and children, and enable regulators to monitor the industry.
Legal Representation for Surrogates
The requirement that surrogates have independent legal representation throughout the surrogacy process would decrease surrogate exploitation. Surrogates in Ukraine report unethical treatment including forced abortion, authoritarian and abusive living conditions in required surrogate housing, a lack of adequate medical care, and no reparations for long-term health issues due to surrogacy. As the majority of surrogates are low-income, they lack the ability to fight the abusive treatment by surrogacy companies.
Longitudinal Study on the Impacts of Surrogacy
A long-term study documenting the psychological and physical effects of surrogacy on women and children should be commissioned. This would enable the Experts’ Group to adapt regulatory policies in the future to provide a data-driven perspective, better protecting surrogates and children born from surrogacy.
From the limited evidence available, the abuse of surrogates and children born from surrogacy is strikingly apparent. To date, developed countries have fueled demand for corrupt and under-regulated surrogacy industries in developing countries around the world. This demand has given rise to powerful corporations that operate without fear of government oversight. As concepts of parentage continue to expand, so must international family law. The Hague Convention’s Experts’ Group is the most qualified international body to champion the regulation of the industry and the protection of women and children.
Emma Lamberton is a Master of International Development candidate at the University of Pittsburgh. She has received multiple honors for her research on human security in post-Soviet regions. Emma previously worked as a journalist and was a 2018 Fulbright English Teaching Assistant in Mongolia. Emma is reachable at email@example.com.
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Bobyn, Christopher. 2018. “Inside Ukraine’s surrogacy industry where Australians are travelling to have a family.” ABC News. https://www.abc.net.au/news/2018-12-15/inside-ukraines-surrogacy-industry/10614172.
Hawley, Samantha. 2019. “Damaged babies and broken hearts: Ukraine’s commercial surrogacy industry leaves a trail of disasters.” ABC News. https://www.abc.net.au/news/2019-08-20/ukraines-commercial-surrogacy-industry-leaves-disaster/11417388.
HCCH. 2019. “Council on General Affairs and Policy of the Conference – March 2019.” https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy
Ray, Saptarshi. 2018. “India bans commercial surrogacy to stop ‘rent a womb’ exploitation of vulnerable women.” The Telegraph. https://www.telegraph.co.uk/news/2018/12/20/india-bans-commercial-surrogacy-stop-rent-womb-exploitation/#targetText=India%20has%20banned%20commercial,womb'%20haven%20for%20childless%20couples.&targetText=Now%2C%20surrogate%20mothers%20must%20be,married%20at%20least%20five%20years.
Roache, Madeline. 2018. “Ukraine’s ‘baby factories’: The human cost of surrogacy.” Aljazeera. https://www.aljazeera.com/indepth/features/ukraine-baby-factories-human-cost-surrogacy-180912201251153.html.
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