Surrogacy needs to be regulated, not prohibited

Evidence on surrogacy outcomes

Research into surrogacy outcomes does not support the claim that acting as a surrogate necessarily has a negative effect on women. A longitudinal study of 34 women from the UK who had acted as surrogates in 2003 found that their psychological wellbeing had not changed 10 years later and that every one of those interviewed remained positive about their experience.8 A detailed study of women acting as gestational surrogates in the US found they had experienced creating families as both extremely rewarding and pleasurable.9 A systematic review of 47 studies conducted across 12 countries investigated the experiences of predominantly gestational surrogacies in a commercial setting and found that the experiences of both parties were largely satisfactory and often resulted in positive ongoing relationships.10 A 2018 study found close positive relationships between surrogates and parents enduring after the birth in most surrogacy arrangements (including 95% of US and UK surrogacy cases).11

Nor does the evidence show that surrogacy has a negative effect on children. A longitudinal UK study in which 42 surrogacy families were seen at seven time points over 20 years found that outcomes in respect of psychological adjustment, parental attachment, and wellbeing for children born through surrogacy were consistently as good, if not better, than those of other children.12 Another study involving focus groups with 25 children who were born through surrogacy or whose mothers had acted as surrogates found that children reflected positively on their experiences of surrogacy.13

Some studies, often involving unregulated transnational surrogacy in low and middle income countries, report less positive outcomes.14 For example, ethnographic research with Indian surrogates in the early 2000s found that some women reported having been coerced into becoming surrogates or not being fully in control of decisions about their pregnancies (box 1).1718 Interviews with Russian surrogates in the 2010s found that they were often subject to considerable control and surveillance, with payments often tied to “success” and “good behaviour.”19

Concerns about surrogacy

There are, of course, legitimate concerns about surrogacy, and it is important that it is conducted responsibly— including ensuring that women are not exploited or coerced, that medical practice is safe, and that children’s welfare is safeguarded. However, critics who object to all surrogacy are unpersuaded by the possibility of any positive outcomes, and that impedes constructive discussion about how to achieve them.

For example, some critics say that surrogacy is by definition exploitative, making it impossible to give informed consent to act as a surrogate.20212223 Others say that the risks of pregnancy make valid consent impossible.24 The risk of a lack of informed consent is likely to be greatest in situations where there is a large imbalance of wealth and power, but not accepting the possibility of informed consent in any circumstances disregards safeguards such as screening and careful support that can help protect women. Surrogates in both wealthy and poor countries report frustration with those who assume they are incapable of making a rational choice to carry a child for someone else.252627

A further objection is that intended parents who seek surrogacy rather than adoption are selfish.28 However, it is unclear why an obligation to adopt applies only to those who cannot carry a pregnancy: the need for assistance makes the otherwise normal human desire to conceive a child no less legitimate.

A more specific objection, mainly centred on commercial surrogacy, is that surrogacy commodifies reproduction, childbirth, and therefore children.2930 Yet fertility doctors do not work for free, and altruistic surrogacy—in which lawyers and healthcare professionals are paid while the women who invest the most time and effort are not—still involves substantial cost.31

Varying global approaches to surrogacy

Legal approaches to surrogacy vary globally. Some jurisdictions, including the US, Ukraine, and parts of Mexico, allow the remuneration of surrogates and permit surrogacy arrangement services for profit (commercial surrogacy). Other countries prohibit surrogacy altogether (eg, France, Italy, Germany); permit only altruistic surrogacy, prohibiting payment to surrogates or intermediaries (eg, Canada, India, most of Australia, New Zealand, UK, and Ireland); or criminalise parents who pay for surrogacy overseas (eg, Hong Kong and parts of Australia).32

National legal restrictions which seek to prohibit all surrogacy or limit it to altruistic or domestic forms—are not enough to ensure good practice. Creating ethical surrogacy is more complex and nuanced. For example, the form of commercial surrogacy available in most US states offers a structured process through which both surrogates and intended parents are supported by a team of regulated professionals operating within a clear legal framework. By contrast the largely unregulated commercial surrogacy in countries such as Kenya and Kazakhstan, when combined with large imbalances of wealth, culture, and language between surrogates and foreign intended parents, carries much greater risk of unethical practice, as was seen in India (box 1).33

Similarly, restricting payment of surrogates does not resolve concerns about exploitation in an absence of regulation that supports surrogate and child welfare. In altruistic familial arrangements, which are incentivised in environments where commercial surrogacy is restricted, women may be subject to emotional pressure to act as a surrogate.34 In addition, since domestic restrictions on paying surrogates tend to create shortages, intended parents are driven overseas and so ultimately merely export the risk of exploitation.35 In the UK, for example, statistics from the Child and Family Court Advisory and Support Service show that between 2016 and 2023, 51% of surrogacy births took place outside the UK, despite altruistic surrogacy being permitted in the UK.36 Ultimately, restrictive national surrogacy laws are ineffective in actually limiting the risk of exploitation.

Practical ways to make surrogacy work well

While the specifics should be determined locally to be appropriate to the political, social, and cultural context, surrogacy regulation should consider safety, informed consent, adequate support, and long term implications.

• Safety—Regulatory requirements should minimise risk—for example, through requirements for appropriate medical and mental health screening to ensure that surrogates can carry a pregnancy safely, and regulatory oversight of medical practices such as the number of embryos transferred.

• Informed consent—Examples of pre-conception safeguards which support this include requiring each party having independent legal advice, a clear written agreement with guaranteed key rights, and preparation counselling (see box 2). In some contexts, additional protections may be needed, such as requiring documents to be in a language the surrogate understands, or additional checks to ensure there is no coercion from relatives and the surrogate is not financially vulnerable.

• Adequate support—Surrogacy is a lengthy and emotional process, and all involved need access to appropriate professional, medical, and psychological support during the process and afterwards. How this is delivered will depend on the wider social context, including the level of state funded healthcare available.

• Long term implications—Records should be retained for children born through surrogacy who want to know more about their genetic and gestational origins. Again, the specifics will depend on the country’s existing mechanisms for healthcare, birth registration, and public records.

These core principles can be enforced in various ways through legal regulation. Parents applying for a court order to ratify their surrogacy arrangement (before either conception or birth) can be required to show they have followed prescribed steps, such as those set out in New York’s bill of rights (box 2). Regulatory bodies can use licensing to control the practice of clinicians, surrogacy agencies, lawyers, and other professionals. Such measures produce a robust ethical surrogacy pathway designed to reduce risk and to increase the prospect of the positive long term outcomes.

There are, of course, limitations. No regulation can eliminate all risk. If safeguards increase costs, there are also issues of equity and access, and a risk that intended parents will continue to be driven to less well regulated countries. Nonetheless, the focus of local laws should be on encouraging intended parents to enter into safe, regulated surrogacy arrangements in their home country and provide a clear alternative to potentially less well regulated surrogacy elsewhere.

Everyone involved in the surrogacy process—not only surrogates and intended parents, but also doctors, nurses, midwives, surrogacy agencies, lawyers, counsellors, and regulators—should work together within regulated systems to safeguard good ethical surrogacy practice. Compelling evidence shows that well managed surrogacy can be a positive experience for all involved, resulting in the birth of loved and wanted children who thrive in the long term. The best way to address concerns about surrogacy’s potential to be unethical or exploitative is not prohibition or restriction, but robust regulation.