Global Surrogacy and Stateless Children

I’ve written in the past about the globalization of surrogacy.   One of the major destinations is India, and there’s been a lot of publicity over the past couple of years about out-sourced surrogacy.  

As I think about it now, I realize I can link this topic to the ongoing thread I’ve got on over-paying egg providers.   The same concern–are people tempted to do something we really wish they wouldn’t do because of the amount of money to be made–underlies both discussions.   

We worry (and I say “we” meaning to include myself) about the exploitation of women in India who become surrogates because of the financial inducements.   (Mother Jones had a terrific article about this that I’ve been meaning to discuss for quite a while.  Since I haven’t gotten around to it, I’ll just link to it for now.) 

But surely the solution to this isn’t to offer less money, as that only leaves desperately poor women with even fewer options for survival.    Better to think about ending global poverty, even if that seems like rather a tall order.    

But putting concerns about the surrogates in India to one side for a moment, a number of recent stories highlight a different set of issues.    Because of variations in law, the children being born to surrogates in India may be of uncertain parentage.   And since this is a globalized trade, where the intended parents plan to take the children to some other country, uncertainty about parentage results in uncertainty about citizenship.   And that means the children (and perhaps the intended parents) are stuck in limbo. 

For example, here’s a story about an Israeli man who is stuck in India with the twins he commissioned from a surrogate.  I’m not an expert on Israeli law, but it seems to me that Dan Goldberg is stuck in a perfect Catch-22.   If he is the father of the twins then the twins get Israeli citizenship, which allows them to enter Israel.   But an the Israeli court won’t determine parentage until the children undergo blood tests in Israel.   And of course, the children cannot be brought to Israel for those blood tests unless they have the proper papers which they cannot get until their parentage is determined.  

This is obviously not the first time an Israeli has used a surrogate in India, and it apparently generally works out better than this.   That’s a good thing, but it is the total unpredictability of all this that is so disturbing.   Efforts to address this via Indian law have so far been unsuccessful.   This article recounts other instances where things have gone similarly awry.

I’m not sure I’ve any larger point to make here beyond the fact that the actual globalization of surrogacy has far outpaced the globalization of the law, leaving endless hazards for individuals who go this route.  Sad to say, I see no prospect of it being all nicely organized any time soon.

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6 responses to “Global Surrogacy and Stateless Children

  1. I previously stated that Prospective Parents traveling abroad for fertility treatment need to be mindful of the social, legal, psychological and financial aspects of their choices.

    I do not fault anyone for trying to set out a decision making paradigm that provides great deference for the financial aspect.

    It appears in too many situations, that the legal and social implications are sacrificed in favor of the reduced cost offered by third world countries.

    Any decision making paradigm needs to be crafted and tempered with professionals who can be relied upon to give competent advice without the taint of conflict of interest.

  2. It’s a massive problem here in the UK too. English law says that the surrogate and her husband are the parents, while Indian (or Ukrainian etc) law says that the commissioning parents are the parents. The result: the baby falls into a legal black hole and is stateless and parentless, with neither a right to remain in India or to enter the UK. There are some possible legal solutions, but can be a minefield.

  3. It’s horrible that the Israeli court would do this. My understanding is that one of the major reasons this happened is because it was a homosexual couple, and that the judge wouldn’t accept the 2 men as a couple [this is from the IndianExpress.com and was a source close to the father]. If this happens to be the case then shame on the Israeli courts. They should be thinking about the best interest of the children and not about the parent’s sexual orientation.

  4. Actually Israeli law has very clear laws regarding the use of surrogates. Only an unmarried woman can be a surrogate. A surrogate can only be used when a woman cannot carry her own baby, and the surrogate may not see or touch the child she has carried. The baby must be taken from her presence immediately after delivery and the surrogate cannot know the identity of the couple/woman she has carried for, or the sex of the baby or its health. I personally regard the laws as highly immoral but what can be expected from a country which regards donor anonymity as absolutely sacred.

  5. Israeli law makes it very clear that a surrogate is considered as merely a vehicle and has zero relationship with the child she carries. In a way this is highly consistent with rabbinic decisions that a Jewish woman conceiving through donated eggs cannot transfer Jewish status to the child she carries since she is ‘not the real mother’ of the child.

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