WHEN SHAKIR MOHAMED and his male partner wanted to start a family in London, they looked to adopt a child. But faced with a laborious process and long waiting times, they instead turned to surrogacy. Last year their son Nico was born to a woman in America who agreed to carry their child for a fee, and who still stays in touch with them.
Acts of kindness, such as hers, ought to be celebrated; in their own small way they each increase the sum of joy in the world by incubating children for families that, for various reasons, can’t do so themselves. Worldwide, that joy adds up to a small city’s worth of new families created through 30,000 surrogate births a year.
Yet instead of being universally celebrated, surrogacy faces a growing backlash from religious conservatives, who see it as a violation of the natural order, and from some feminists, who worry that it exploits women, especially when they are paid to be surrogate mothers. In October Italy, which has banned surrogacy since 2004, imposed perhaps the world’s most uncompromising restrictions by declaring it a “universal crime”. This wording “puts surrogacy on a par with genocide and crimes against humanity”, noted Dafni Lima of Durham University’s law school. The law makes it an offence for Italians to have surrogate babies abroad, even in countries where it is legal to do so, that is punishable by up to two years in jail and a fine of up to €1m ($1.04m). In December the Supreme Court in Spain, which also bans surrogacy, ruled against the practice abroad, arguing it “violates the moral integrity of the pregnant woman and the child”.
The result of this backlash is a complicated muddle of national laws that puts prospective parents in peril of prosecution and babies of being left parentless and stateless. These restrictions are also pushing surrogacy underground, or to unregulated countries, and into the hands of criminals and human traffickers, where it is far more likely that surrogate mothers will be exploited and abused.
Though surrogacy dates back at least to biblical times—the book of Genesis tells the story of Abraham impregnating his wife’s servant, Hagar, to bear a child for the couple—it was only in the mid-1980s that IVF allowed “gestational” surrogacy, whereby a woman could carry a child who was not related to her. Before then, childless couples who wanted families would generally have had no alternative but to apply to adopt. Yet demand has long outstripped supply. According to one study published in 2006, there were around 1m parents in America who wanted to adopt a child, yet only 51,000 children were placed with agencies for adoption each year.
The answer, for many, was to look abroad. In 2004 international adoptions peaked at 45,000, mainly from poor or war-torn countries. Yet a series of scandals involving child-trafficking, kidnapping and baby-farming prompted tighter regulation and/or outright bans, such as one imposed by China last year. The result has been a collapse in cross-border adoptions—in 2022 there were just 3,700 worldwide—stranding hundreds of thousands of children in orphanages (see chart). It is a decline that will not be reversed, says Peter Selman, a professor at Newcastle University and an authority in this area.
Domestic adoptions have fallen over recent decades in a number of rich countries, partly because of the introduction of needlessly stringent rules on the suitability of parents. In parts of Britain, for example, local authorities insist that each child must have their own bedroom. Moreover, the amount of time children spend in care before being placed with a family has gone from months to years, leaving many traumatised and institutionalised. Mr Mohamed and his partner worried whether they were equipped to provide the support such children would need.
Baby be mine
As rich-world adoption has plummeted, demand for surrogacy has grown. It has also been fuelled by rising infertility, an increase in the acceptability of singles and gay couples choosing to have children, and the spread of information on the internet.
In Britain the number of surrogate births recognised by courts increased almost four-fold over a decade, to 449 in 2022 from 117 in 2011. Surrogacy is also increasingly global. In America, where some states allow women to be paid to carry a child (known as commercial surrogacy), almost a third of such pregnancies are for foreign parents. Many are from countries such as China or France, which ban all forms of surrogacy. Others are from countries like Britain, which allow only “altruistic” surrogacy, whereby mothers may be paid no more than their reasonable extra expenses. Like Nico’s, around half of surrogate births recognised in Britain in recent years took place abroad.
There are no reliable worldwide statistics. Sam Everingham, who founded Growing Families, a non-profit organisation in Australia that helps people navigate international surrogacy, estimates around 30,000 babies a year are born from international surrogacy. Other estimates are higher. Global Market Insights, a data firm, reckons this market was worth more than $14bn in 2022 and forecasts its value will rise to $129bn in 2032.
This rapid growth is bringing to the fore legal and moral quandaries that are similar to those that plagued, and then largely destroyed, international adoption: the potential for abuse when high demand in rich countries finds supply in poorer, unregulated one; whether it is ethical to pay for children; and how surrogacy, commercial or altruistic, affects women’s autonomy over their own bodies and the identity and well-being of the children they bear.
Some, such as Giorgia Meloni, Italy’s prime minister, are implacably opposed to the very idea of a woman carrying a baby for someone else under any circumstances. “Human life is priceless and is not a commodity,” she tweeted after Italy declared surrogacy a universal crime.
Critics also argue that it harms surrogate mothers and their children. One study found that surrogates are more likely to experience pregnancy complications than mothers who use IVF or conceive naturally. They are also more likely to give birth prematurely. “We can’t step on the rights of children and women…for the desires of some couples to have children,” says Olivia Maurel, who was born in America through surrogacy, but now campaigns against it.
Yet the wider body of research, including a systematic review of 47 studies in 12 countries, does not support the claim that acting as a surrogate has a negative effect on women, according to a paper published in 2024 in the BMJ, a British medical research journal. Instead, the evidence suggests that most surrogate mothers in countries such as America, where it is well regulated, found the experience rewarding. Moreover, blanket bans tend to push surrogacy to places where there is no regulation, and thus greater potential for abuse. “Hoping it goes away isn’t going to happen,” says Natalie Gamble, a British lawyer.
A related argument is over whether it is unethical or exploitative to pay surrogates. A number of countries besides Britain allow only altruistic surrogacy. These include Canada, Denmark and New Zealand. Such arrangements challenge the notion that all surrogates are poor uneducated women exploited for money, says Sarah Jones, the CEO of Surrogacy UK, a non-profit outfit. Ms Jones ought to know: she has been a surrogate five times. But few women are as altruistic as she is, which is one reason why half of Britain’s surrogate babies are born abroad.
America, Mexico, Colombia and Georgia are among the countries that have booming commercial-surrogacy industries. In America, where the rules are set by each state, this is a highly professional business with protection for mothers and the intended parents. California, a liberal surrogacy-friendly state, uses orders that establish the intended parents as legal parents before the birth. This makes it a popular destination, but also an expensive one, with costs of up to $200,000. This is increasing demand for cheaper—and often unregulated—destinations such as Mexico and Colombia, with costs of around $90,000 and $65,000 respectively.
Race to the bottom
Yet this can lead to a downward spiral into more unregulated and underground markets. “When a ‘new’ destination becomes popular, it can often be overtaken by demand, leading to longer waiting times and pushing costs upwards—meaning it then becomes likely that another new destination will emerge,” notes Kirsty Horsey, a law professor at the University of Kent.
Alejandra Vera, a lawyer and director of an NGO that works to protect women’s rights in Cúcuta, Colombia, says surrogates are sometimes vulnerable women who are trafficked across the border from Venezuela. There surrogacy costs around $65,000, but only a fraction of this is ever paid to the surrogate herself. The rest goes to agencies, lawyers and middlemen. Contracts can force the woman to give up her right to end the pregnancy. Maternity clinics give out flyers advertising the service at their doors. “They know they can get desperate women there,” she says.
No regulation, poor young populations, and fertility clinics galore mean that African countries like Nigeria, Uganda and Kenya are also becoming popular hubs. Olaronke Thaddeus, the founder of Meet Surrogate Mothers, a clinic in Lagos, Nigeria, says when she opened in 2013 she had one couple visit that entire year. Now she welcomes 200-300 potential parents a year, most of whom come from America, Britain, Canada and continental Europe. She declines to say how much she charges or how much she pays surrogate mothers, insisting that her service is “priceless”. The clinic maintains strict confidentiality so the intended parents never meet the surrogate mother—even at the birth.
Some argue that the only way to prevent abuses is through an international treaty, along the lines of the Hague Convention of 1993, which regulated international adoptions. Making surrogacy universally legal, safe and paid could maximise the joy it brings and minimise the risk of it causing harm. That seems fanciful. Years of work on a convention by an intergovernmental group has stalled: countries are still far too divided over whether surrogacy should be legalised or outlawed to even begin to sensibly regulate it. ■