In response to various injustices and exploitation, several countries have closed their borders to international surrogacy arrangements in recent years, including India and Thailand.
Regrettably, the current official position of the United States with respect to international surrogacy is that surrogacy does not involve the exploitation or commodification of children. The U.S. signed and ratified the optional protocol to the Convention on the Rights of the Child that prohibits the sale of children, but holds that “surrogacy arrangements fall outside the scope” of the protocol.
The UN Special Rapporteur on the sale and sexual exploitation of children recommends that surrogacy agreements be regulated in order to prevent exploitation of women and sale of children. But she has not called for a global ban on surrogacy, although an increasing number of voices do, including hundreds of organizations from eighteen countries that signed an International Statement for a Global Ban on Womb Rental in 2018.
Within the United States, a patchwork of laws makes for a Wild West situation. Some states allow commercial surrogacy, some limit surrogacy to altruistic arrangements, and some do not recognize surrogacy contracts. But most states do not specifically address the issue. Proposals to more tightly regulate surrogacy, clarify contract legalities, or in the case of the state of New York, provide a full-fledged stamp of approval, don’t resolve the full scope of surrogacy’s challenges and harms.
Time to reframe the conversation
Beyond the debates in state houses and international bodies, it’s time to reframe the conversation. Infertility and other health conditions that render a person unable to have a child of his and her own can be a painful and isolating experience, and our society should have compassion for people who walk the road of infertility and loss. But we should approach the matter of surrogacy from an understanding that the desires of adults to raise a child do not supersede the rights and needs of children.
Listening to the women and children who have suffered deeply because of surrogacy is critically important. Organizations like Them Before Us and the Center for Bioethics and Culture are leading the important work to elevate these voices and tell the stories of women and children that are too often ignored or dismissed.
Clarifying legalities and increasing regulations does not address fully the ethical problems with surrogacy and its harms to women and children. Opposition to surrogacy is not a simple left versus right issue, and people across the political spectrum can agree that American laws and society need to prioritize the dignity and health of women, the needs of children, and the fundamental human rights of all individuals when addressing the matter of surrogacy.
Grace Melton is the Senior Associate for Social Issues at the United Nations in The Heritage Foundation’s Institute for Family, Community, and Opportunity. Melanie Israel is a research associate in Heritage’s DeVos Center for Religion and Civil Society.