Surrogacy and Child Protection

Professor Büchler, surrogacy is seen as ethically dubious, why is that?

Surrogate motherhood is a very complex relationship and raises a lot of questions – questions about our understanding of motherhood, the wellbeing of children, the process itself, and the limits of reproductive autonomy. With international surrogacy in particular, there is significant potential for exploitation.

What is the legal situation?

Different countries have quite different laws concerning surrogacy: In Switzerland, for example, it is forbidden; in some countries, England for example, it is permitted if it is altruistic (i.e. no money changes hands); while in other places, California for instance, commercial surrogacy is also permitted. Each approach has specific ethical challenges.

What are those ethical challenges?

A complete ban on surrogacy is a simple answer, but it is an ineffective response to what is a very complex phenomenon. A government in a democratic country can’t just ban something without being able to justify it. That means the lawmakers would have to be able to prove that surrogacy in general and in each specific case is damaging to a person or to society.

With altruistic surrogacy, on the other hand, there is the risk that a woman might feel obliged to do it for a close relative, and that the surrogacy will put pressure on the relationships between the people involved. Plus, it doesn’t really seem reasonable that no compensation should be given for such an activity.

With commercial surrogacy, there are other risks involved: Given the legal and social inequalities of the global society and the poverty that exists, the risk that surrogate mothers are exploited is high. There’s also the risk that a market for “trading” children is created.  

Why is it so important to develop international agreements for the legal approach to surrogacy?

Because surrogacy is an issue that transcends national borders and directly affects human rights. When the parents in a cross-border surrogacy arrangement bring their newborn child to their country of residence, the recognition of the baby as their legal offspring is in question. It would make a lot of sense if the conditions to be fulfilled for such recognition were defined at international level.

Last week, experts got together at UZH to discuss the issue of surrogacy. Who initiated this meeting?

It was initiated by the International Social Service (ISS), an international NGO represented by a network of national organizations. The ISS supports children and families who face social and legal difficulties as a result of international migration or displacement. In 2016, it was tasked with formulating child-protection guidelines for surrogacy. The consultation meeting in Zurich was the second time the group has convened.

You are one of the members of the group. What is your relationship to the topic?

I have been researching and publishing for several years on the legal questions relating to international surrogacy. I have also had the opportunity to visit the USA and India (countries in which surrogacy is practiced legally) to talk to people involved in surrogacy and to observe it in practice.

What was the aim of the expert consultation meeting?

The group of experts brought together by the ISS is drawing up a range of principles for the protection of children’s legal rights in the context of surrogacy. These principles are based on regional and international human rights standards. They are intended to serve as guidelines to help governments and other stakeholders with the regulation of surrogacy. As the process is consultative, a few more meetings will still be required before the principles can be published. The group includes medics, ethicists, lawyers, anthropologists, and representatives of several governments and international organizations.

What were the outcomes of the consultation in Zurich?

The experts agreed that national governments have a duty to take measures to protect the children involved – to protect their identity, their integrity, and their dignity. However, it became clear that people around the world have very different views on surrogacy and that the needs and concerns of individual countries differ considerably. Despite that – or rather because of that – this consultation process is really important.

How likely do you think it is that the project will be successful in regulating the international surrogacy market?

It is not easy to find a consensus on these matters. But it is urgently required, as there is currently no international regulatory framework. Such principles really could serve as useful guidelines for governments to protect children’s legal rights. But that alone is not enough, of course. Further efforts are required, nationally and internationally, to clarify the difficult ethical and legal questions surrounding surrogacy.