Jennifer Lahl, President Center for Bioethics and Culture
Gary Powell, European Special Consultant at the Center for Bioethics and Culture
Submission by the Center for Bioethics and Culture in response to the call for input on addressing the vulnerabilities of children to sale and sexual exploitation in the framework of the Sustainable Development Goals
For the attention of Special Rapporteur Ms. Mama Fatima Singhateh, United Nations Office of the High Commissioner for Human Rights.
The call for input requests that submissions be related to the Sustainable Development Goals (SDGs), and in particular to the targets 5.3, 8.7 and 16.2.
This submission concerns itself with the trafficking of children facilitated by international commercial surrogacy tourism.
International commercial surrogacy tourism is an intrinsically harmful practice to the babies purchased in respect of the high-risk pregnancies and the increased risk that the neonate will suffer health detriments, the emotional abuse caused when a neonate is taken immediately from his or her birth mother, and the child’s exposure to genealogical bewilderment resulting from biological and cultural uncoupling, all of which are associated with the surrogacy process. These factors fall within 5.3 of the SDG framework.
In 2018, the then UN Special Rapporteur on the sale and sexual exploitation of children, Maud de Boer-Buquicchio, warned that children faced becoming commodities as surrogacy arrangements proliferated. In her report to the Human Rights Council in Geneva, she stated,
“Children are not goods or services that the state can guarantee or provide. They are human beings with rights. […] Commercial surrogacy, as currently practised in some countries, usually amounts to the sale of children.”
Once commercial surrogacy agencies and the other professional facilitators, such as surrogacy and IVF clinics, lawyers, and doctors, have completed their specialist obligations to the commissioning parents and received their remuneration, their involvement in the process comes to an abrupt end. Shortly after they are born, the babies are often taken abroad, to the homeland of the commissioning parents, where commercial surrogacy is likely to be illegal or considerably more expensive: factors that motivate commissioning parents to seek commercial surrogacy services abroad.
When they are taken abroad, no effort is made by the surrogacy agencies or any other agency involved in the process to investigate what happens to the children and whether the commissioning parents have engaged in the surrogacy process with nefarious motives. Surrogacy agencies do not carry out the kind of rigorous suitability screening of intending parents that is associated, for example, with adoption.
After all, the surrogacy agency has a stark conflict of interests in this screening situation, given that every rejection of an intending parent will entail lost potential revenue to the agency. Should the commissioning parents have ulterior motives in respect of the child, the surrogacy agency will remain completely unaffected and in a state of ignorance as to the harm that may be befalling the child they have provided to their customers. There is no attempt by such agencies, or by any of their partners, to follow up on the fate of the child or to monitor her welfare, whether shortly after the birth, or over a longer period of time.
The inadequate screening of intending parents who engage in commercial surrogacy tourism is illustrated by the tragic “Baby Gammy” case of 2014, where a boy with Down’s syndrome was left behind in Thailand by his commissioning parents who returned to Australia with Gammy’s twin sister, Pipah. Quite apart from how this case demonstrates the particular vulnerability of disabled surrogacy children when commissioning parents are paying for a commodified designer baby, it should be a cause of considerable consternation that the commissioning biological father had been able to engage in the commercial surrogacy process despite having served three years in prison for child sex offences.
The fact that these children are purchased in one country and transported to another, with no follow-up monitoring, means that they are at an especially high risk of abuse and exploitation once they are taken abroad. Indeed, the purchasing parents may even have no biological relationship to the child at all, given that both the egg and the sperm that form the embryo can be purchased under some jurisdictions. This is a situation that would seem particularly attractive to malevolent traffickers of children, though numerous examples of adults exploiting children to whom they are biologically related suggest that such abuse is by no means ruled out simply because an adult has a biological relationship to the child.
The above is relevant to factors 8.7 and 16.2 of the SDG framework, insofar as international commercial surrogacy, with its failure to adequately screen purchasing parents and to monitor the welfare of the child once she is transported abroad, is a form of human trafficking that makes that child particularly vulnerable to engagement in forced labour, modern slavery, “the worst forms of child labour” (8.7) and to abuse, exploitation, violence, and torture (16.2).
The birth mothers recruited in commercial surrogacy are often women from economically-disadvantaged backgrounds, and in this respect, there is a clear parallel with the sale of human organs, where the “donor” (vendor) is normally in a situation of economic vulnerability – and even urgency and desperation.
Just as we do not see, and would not expect to see, wealthy people selling their organs to other wealthy people, it is not women from affluent backgrounds who offer to put their own lives and health at risk by becoming surrogate mothers for remuneration at the behest of other wealthy people. As is the case both in organ sales (legal only in Iran, and therefore almost always happening illegally where it does take place) and in commercial surrogacy (banned in many countries as a human rights abuse), it is the poor who are drawn into providing a service to the possible serious detriment of their own health and well-being, to those who, in the case of surrogacy, are able to afford to pay surrogacy agencies that, in the USA, often charge six-figure sums. A further example to add to commercial surrogacy and organ sales, where it is overwhelmingly those in economic need who offer to provide the service, is prostitution: a dangerous and dehumanising activity overwhelmingly undertaken by those in economic need and desperation.
Any child carried by a birth mother in the process of commercial surrogacy is therefore a child whose existence is most likely to be intrinsically linked to a situation of exploitation resulting from economic disadvantage and vulnerability: a factor that impacts SDG 1 (poverty), SDG 4 (education), SDG 5 (gender (sex) equality) SDG 8 (decent work and economic growth), SDG 10 (reduced economic inequalities), and SDG 16 (justice).
Furthermore, although it may be likely that the majority – or even vast majority – of purchasing parents will be seeking to acquire children via commercial surrogacy without any intention of selling those children into sexual exploitation, abuse, or domestic slavery, it is nonetheless the case that international commercial surrogacy tourism provides horrific and unique opportunities for criminals to acquire children entirely legally for future exploitation in organised commercial sexual abuse or domestic slavery. The children thus acquired by such criminals will face a life of utter misery. For the children who meet this fate as a result of commercial surrogacy tourism, all the SDGs listed in the above paragraph are directly relevant, as well as being indirectly relevant by virtue of the circumstances of their birth in relation to their disadvantaged birth mothers.
Any counter that it is likely that only a small minority of children born via commercial surrogacy would end up in abusive circumstances of child labour or sexual exploitation, and that the positive outcomes of the majority would outweigh this disadvantage, is an argument that is morally bankrupt. The harm suffered by this minority is so egregious that it cannot be regarded as acceptable collateral damage. In any case, the assertion that there could be many overall “satisfactory” outcomes from commercial surrogacy is highly questionable, given the disadvantages and health risks to both the birth mother and child, and the psychological impact on a neonate of being separated at birth from her birth mother: surely an act of emotional brutality to a newborn baby.
There are regular reports from various countries of police investigations taking place where there is a suspicion that commercial surrogacy has been linked to the trafficking of children. One recent example was reported by Asia News on 16 February 2022 with the headline, “Thai police looking into trafficking in children born from surrogate mothers” and suggests activity in this field by organised criminal groups:
“Bangkok (AsiaNews) – Thai investigators are looking into the case of a one-year-old girl who disappeared from a Bangkok kindergarten, possibly taken abroad by a criminal gang that uses nurseries and domestic workers placement as a cover to engage in trafficking of minors born to Thai surrogate mothers.
“Investigations have found so far that in Nongkhai, a city on the border with Laos, at least 20 children have been given to foreigners by a hardened group with branches in several other Thai cities.
“Despite a recent law meant to crack down on the practice, Thailand’s Department for Special Investigations (DSI) reported that at least 300 children and babies were taken out of the country illegally in 2020.
“With the outbreak of the COVID-19 pandemic, lockdowns and border closure, a large number of children born to surrogate mothers were placed in kindergarten[s] amenable to cooperate with traffickers or set for the purpose of eventually shipping babies abroad.
“For a long time, police have been aware that transnational organisations involved in the illegal promotion of surrogacy are active in various Thai regions […]”
The confirmation in this report by Asia News that Thai police have been aware for some time of “transnational organisations involved in the illegal promotion of surrogacy” is strong evidence of the special opportunities that surrogacy provides to international criminals engaged in the trafficking of children.
On 3 August 2020, the Russian news agency TASS published a report with the headline, “Defendants in baby trafficking case suspected of selling infants abroad for organ trade,” with the strapline, “Earlier, seven suspects in a case into trafficking infants born by surrogate mothers were arrested”:
“MOSCOW, August 3. /TASS/. Investigators are probing suspects in a criminal case into trafficking children born by surrogate mothers for possible involvement in selling newborns abroad for organ trade, a source in the law enforcement agencies told TASS on Monday.
“‘Investigators will analyze the suspects’ actions. They are probing each of them for involvement in trafficking babies born by surrogate mothers abroad to sell their organs,’ the source said, giving no further details.”
Regardless of the culpability or otherwise of the individuals against whom these specific allegations were levelled, the fact that a crime enforcement agency is able to suspect that child trafficking for the selling of human organs may have taken place as a result of their birth via surrogacy, is proof of how vulnerable surrogacy makes children to exploitation.
There are regular reports in the global media that raise fears of child trafficking via commercial surrogacy. This one from 29 May 2021, in Finance Uncovered, resulted from an investigation in Kenya that responded to
“(w)orrying allegations about how the industry operated [that] ranged from coercion, exploitation and intimidation of surrogates, apparent human trafficking of birth mothers and children, forced abortions and identity forgery and fraud.”
Ukraine, with its liberal laws supporting commercial surrogacy, is one of the world’s biggest surrogacy hubs and is popular as a country with less expensive surrogacy agencies than the USA. The plight of commercial surrogacy babies born in Ukraine, and of their birth mothers locked into a contract with surrogacy agencies, provides a stark example of the vulnerability caused to such babies – and mothers – as a result of unpredictable factors such as pandemics and wars.
On 23 February 2022, the day before the Russian invasion of Ukraine, the Sydney Morning Herald published an article with the headline, “A nightmare’: Parents fear for Australian surrogate babies in Ukraine”. Australia had already withdrawn its diplomats:
“Their baby was born last week a few days earlier than expected in Kyiv, which is bracing for invasion by Russia. Against government advice, they are on their way there. But after Australia withdrew its diplomats from the country, they do not know how they will get their baby […] home.
“Four Australian babies have been born to surrogates in Ukraine over the past two months, and at least 15 more are due between March and September. Their parents are all frantically worried about the deteriorating situation in Ukraine. To get their child a birth certificate, Ukrainian authorities require both to be there in person. But without an Australian embassy, they cannot do the interview required to get the baby a passport, which means they cannot leave.”
“One couple has secured a Chinese passport, as one of the baby’s parents was born there. The other parents could hire a nanny to look after the baby until stability returns. But that could mean a wait of weeks or months, and these families – who have been struggling to conceive for years – desperately want to meet their child. They could help the surrogate mother move to a safe neighbouring country, but that would invalidate the surrogacy contract, which was created under Ukrainian law.”
The focus of the Special Rapporteur’s call for input is child safeguarding, and that must be the focus of this submission. However, the well-being of an embryonic child, or of a neonate, is very closely linked to the well-being of her birth mother, particularly in a situation where war or disease has broken out in a country; and the predicament described above in the Sydney Morning Herald demonstrates the vulnerability of birth mothers and neonates who are entwined in the international surrogacy tourism industry.
The reference in the quoted paragraph to families “desperately wanting to meet their child” for “weeks or months” is striking in its failure to express specific concern for the well-being and safety of the babies in a country then at risk of invasion and now in the midst of a horrific war. This attitude, where the interests of the neonate disappear under the entitlement-infused emotional outpourings of the commissioning parents and their media sympathisers, is observed all too often by those who campaign against the exploitation and abuse of women and children by the global surrogacy industry.
On 15 May 2020, during the coronavirus pandemic, Sky News ran a report with the following headline: “Coronavirus: Surrogate trade exposed as pandemic leaves 51 babies stranded in Kiev hotel. The babies were all born to surrogate mothers in Ukraine but their parents are struggling to reach them due to virus precautions.”
“Ukraine’s borders have been closed to foreigners since March, leaving most of the parents to make do with seeing their babies in pictures and during video calls.
“The 51 babies lying in rows of cots in a small hotel on the outskirts of Kiev are likely to be waiting for a long time yet, as Ukraine’s government said it can only allow parents into the country if a request is received from the relevant embassy.”
The heartbreaking predicament of babies stranded abroad and separated from either their birth mothers, their biological parent(s), or both – as in the case of these 51 babies lying in cots in a hotel – is one that is caused unequivocally by commercial surrogacy tourism. Whether the unpredicted calamity is a pandemic, an act of war, or something else, it is surely the case that no baby should be put at such a risk of separation from parental care and comfort for the sake of adult gratification of any kind, whether that gratification be mercenary or emotional. In non-surrogacy pregnancies, there is a solid bond between a mother and her child, and whatever may happen, the mother remains ever-present to care for the baby.
The plight of surrogacy neonates in Ukraine – how they have been impacted by a pandemic and by a war, and how media reporting so strikingly and obviously shifts concern away from the babies’ well-being to that of associated adults – demonstrates the dehumanising objectification and commodification of babies by the surrogacy industry and by those who promote and endorse it. The babies are treated like some commercial product whose transportation has been inconveniently impeded: as a means to an end, rather than as ends-in-themselves, as befits their human dignity.
Just as organ sales by living vendors are banned almost worldwide, based on the recognition that this procedure and industry are so harmful, dangerous and exploitative that they could never be satisfactorily regulated, commercial surrogacy is also a procedure and industry that will always cause cases where there is serious harm and that is also impossible to regulate satisfactorily. In order to protect the fundamental human rights of the egg “donors” (vendors), the birth mothers, and the neonates, commercial surrogacy should in our view be banned without exception, including its euphemistic counterpart, so-called “altruistic” surrogacy, where “reasonable expenses” normally constitute a salary and can be complemented by state maternity leave and pay. “Altruistic” surrogacy is so often nothing but commercial surrogacy on the cheap: a legal loophole in those states where commercial surrogacy in its more obvious form is banned.
Children need urgent protection from those who will exploit surrogacy in order to profit financially from child trafficking that could result in children being instrumentalised for the sale of their organs, sold into domestic slavery, or exploited in the child sex industry, whether in child sexual abuse imagery or in child prostitution. The cost to criminals of obtaining a child via legal or illegal commercial surrogacy for the purpose of trafficking her abroad could be immensely exceeded by the income generated over a period of years by her exploitation in the child sex industry or in other forms of modern slavery, such as forced labour or organ harvesting. Surrogacy tourism exposes children to the risk of horrific exploitation and abuse at the hands of the world’s most ruthless individuals and organised criminal gangs.
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