The International Fertility Trade and Reproductive Tourism: When Old Treaties Meet New Technologies



Surrogates must stay in dormitories at some clinics.
Courtesy of BBC News

By Laura Notess

“Reproductive tourism,” the practice of traveling abroad to receive assisted reproductive technology, is a relatively recent phenomenon. Driven by the increasing availability of such technology and a desire for children of their own, couples around the world have turned to surrogacy and egg donation on an international scale. Yet the resultant fertility industry poses a number of challenging bioethical questions, several of which implicate potential rights violations that have so far received little discussion in the global human rights community.

Background

Laws regarding assisted reproductive technologies (ARTs) are extremely inconsistent across countries. Infertile couples frequently find that overseas fertility options—whether through egg donation or surrogacy—are cheaper and/or present fewer legal restrictions than proceeding with the process at home. While these couples are from many regions of the world and choose diverse locations to travel to, they are overwhelmingly from Western Europe, Canada, and the United States, and travel to the developing world. A large shift in the global fertility industry has thus occurred in recent years, and is frequently accompanied by a concerning lack of regulation. For example, in China, where both surrogacy and egg donation are illegal, a thriving black market has sprung up. India legalized surrogacy in 2002, and has since become a major participant in the surrogacy industry, but with little accompanying regulation. A growing market is also expanding into Latin America.

The relatively recent technological innovations driving ARTs, as well as the complicated bioethical questions engendered by their use, means that they remain largely unaddressed by international human rights conventions. Nonetheless, the practice of “reproductive tourism” creates a nexus of controversial social issues, involving questions of women’s rights, the right to health, and the right to family. Here we will briefly touch upon these various concerns, in an attempt to provide an overview of what human rights concerns governments may need to consider as they attempt to regulate and respond to the fertility industry. Although such ‘reproductive tourism’ has significant impacts on the couples who pursue it, and involves a great deal of sensitive emotional issues related to infertility, the power imbalance created by wealthier couples traveling to poorer regions often results in a lopsided discussion of the impacts of reproductive tourism. For this reason, this discussion will focus primarily on the impacts of reproductive tourism on surrogates and egg donors.

The Inescapable Bioethical Question

Assisted reproductive technologies in general tend to garner a fair amount of bioethical controversy. These questions range from concerns over the commodification of the human body, to the racial connotations of Western couples asking only for white or Asian donors, to questions of when ART use is appropriate. Exploring all of these questions fully is beyond the scope of a single blog post.

One bioethical question, however, is especially relevant to how existing human rights conventions can be interpreted in regards to assisted reproductive technology: can such practices as egg donation and surrogacy be treated as mere business transactions, or do they necessarily implicate broader social and ethical concerns? This question is mirrored in the debate over reproductive tourism itself. While some see the practice as empowering women by providing them with capital in exchange for a service, others are deeply concerned with the exploitative connotations of women essentially "selling" their fertility.

Such questions occur anywhere that ART does, as legal systems adapt to changing technologies. Yet they are especially sharp in regards to reproductive tourism. Here we will first look at how, even if reproductive tourism is viewed strictly through the commercial lens, serious human rights concerns are implicated, and then examine how additional human rights issues are implicated when one views the practice of reproductive tourism itself as ethically or socially problematic.

Women’s rights in a medical industry

Neither the Commission on the Status of Women (CSW) nor the Convention on the Elimination of Discrimination Against Women (CEDAW) explicitly address the issue of assisted reproductive technology. Indeed, adapting their provisions, designed to craft protections for women in the social and political sphere, becomes difficult in the context of the commercialization of fertility. However, many of the concerns related to women’s health are directly implicated.

There is some ongoing medical debate as to the safety of ART participation. In general, the procedures are not extremely high risk. Yet egg donation, which involves several weeks of hormonal injections, can nonetheless result in less-than-negligible health consequences. The line between safe and unsafe donation is not always clear, and countries differ as to how many times a person can donate, and how many eggs can be donated at once. Surrogacy implicates not only the usual concerns surrounding childbirth, but the higher risks associated with in vitro fertilization. Many of these health concerns are necessarily heightened in developing countries with poorer health infrastructure, few regulatory laws, and high rates of maternal mortality.

Especially concerning in the reproductive tourism context is the question of informed consent. Article 7 of the ICCPR specifies that no one should be subjected to any “medical or scientific experimentation without their consent.” This is most clearly implicated in instances of direct exploitation, such as the surrogacy ring uncovered in Thailand in 2011. But softer forms of exploitation are probably more common. Many surrogates are illiterate and sign their surrogacy contracts with a thumbprint. Nor are women always made aware of the social and cultural consequences of participating in ARTs.  And while women the world over can choose to become egg donors and surrogate mothers, the economic inequality between donors and donees inherent to reproductive tourism raises specific concerns of economic coercion.

Furthermore, reproductive tourism allows couples to skirt laws raised by bioethical concerns in their own countries. In the developing world, the economic incentive of the fertility industry may steamroll such concerns. Thus sex selective ART, illegal in most of the world, is legal in Mexico, and India allows implantation of a greater number of embryos in a surrogate compared to most of Western Europe. Reproductive tourism opens doors for the developing world to become a testing-ground for contentious bioethical issues.

Thus, even if viewed strictly as a medical industry, the potential for abuse implicates specific women’s health concerns. Governments should be aware of this potential when crafting policies and laws related to ARTs. The human rights community can also respond through fact finding and other measures designed to ensure women’s health concerns are protected.

The Family Context

A compelling case can be made from within the existing human rights framework for understanding the fertility industry as more than simple business transactions. Both the Universal Declaration of Human Rights (UDHR) and the International Convention on Social, Economic and Cultural Rights (ICESCR) emphasize the family as the basic societal unit. Family ties and connections are thus afforded special protection. This appears to reflect an understanding that human rights do not exist in a vacuum, and are realized in broader social contexts. Under this interpretation, viewing reproductive tourism as merely another health industry ignores the social reality of the role of family in our lives.

The question becomes more difficult, however, as one attempts to understand what exactly is meant by “family.” Does family necessarily include genetic relations? Does the right to know one’s family include the right to know one’s genetic family? Partly in response to this question, Britain outlawed anonymous egg donation, leading to a large decrease in donations. Clearly this invokes difficult questions regarding the best interests of the child and the role of the genetic family in today’s society. But as Britain (and other countries) wrestle with these issues, should couples be allowed to skirt them by going abroad?

This question of family becomes further complicated when one specifically looks at the question of maternity. CEDAW and the ICESCR specifically discuss the right to maternity leave and special protections for mothers. Yet how one defines maternity impacts how these documents are interpreted, and what protections ought to be afforded to surrogate mothers. Does carrying a child genetically unrelated to you make you a mother?

Many surrogacy clinics offer residency programs, in which women stay at the clinic during their pregnancy. While this means they are provided with food, housing, and medical care, it also serves to ensure they don’t smoke or engage in other activities that might harm the child. While this may not be problematic if one sees the process as merely a business transaction, one doctor argues that this practice essentially treats women like cattle. Furthermore, they potentially violate the protections for maternity and mothers established as human rights norms. If non-surrogate women were treated similarly during their pregnancy, there would likely be an outcry from the international human rights community. If maternity extends to surrogate mothers, it seems that similar questions should be raised. Certainly the question of what maternity is, like the question of what family is, ought be raised and discussed as the international human rights instruments are adapted to ART use.

Finding an International and Government Response

Any fast-growing, billion-dollar industry is likely to raise human rights concerns as it looks for cheap labor and resources on a global level—think, for example, of disputes over sweatshop or child labor. At a minimum, a greater awareness of potential abuses and the development of regulations to correct for such abuses should be encouraged.

Yet such regulation should be carefully thought out. India recently enacted new regulations to limit who can participate in India’s surrogacy industry. It remains to be seen what effect these new rules have. But it is concerning that the rules simply limit access to the industry, without fostering any positive change in the industry itself. Couples who are no longer eligible will likely go to other countries, while little change will occur in the industry itself. A broader, coordinated international dialogue regarding the potential uses and abuses of the fertility industry is warranted. Although existing human rights conventions provide some guidance, establishing stronger international norms and guidelines are crucial to limiting the potential for human rights violations to occur. Discussion around such standards should be careful to ensure that the voices and interests of women selling their eggs and wombs are not drowned out by the concerns of the fertility industry and the commissioning couples.