Even as New York City just announced its expansion of employee-reproductive benefits to include $10,000 reimbursement for costs incident to adoption, egg and sperm donation, and surrogacy, Italy passed a law shuttering the practice of surrogacy – now preventing all citizens from even seeking the service outside the country.
“Providing resources for adoption, surrogacy and other options is essential for LGBTQ+ families, who have historically lacked this support.”
- Melissa D’Andrea Sullivan, executive director of PFLAG NYC.
To promote “traditional family values,” Italy’s restriction is targeting the very same community that New York, motivated by its desire to equalize the reproductive playing field for gay couples and to attract top talent, is trying to protect.
Commenting on the decision on X, Prime Minister Giorgia Meloni, who was responsible for the restrictive Italian legislation, called it “a common sense rule against the commodification of the female body and children. Human life has no price and is not a commodity.”
While surrogacy has been illegal in Italy since 2004, the new law criminalizes Italians who seek surrogacy abroad, imposing jail terms for up to two years and fines of up to one million euros. The move, which can be considered self-sabotaging given Italy’s declining birth rate, targets the LGSBTQ community, which comprises only 10% of those seeking the procedure.
In the words of another Italian Senator:
“Motherhood is absolutely unique, it absolutely cannot be surrogated and it is the foundation of our civilization.” - Senator Lavinia Mennuni
Abuses in the Surrogacy-System
Unquestionably, the practice of surrogacy has invited abuses. One includes baby-selling via the internet, a form of human trafficking (at the cost of $100,000 a baby, plus an add-on of about $14 for sex selection), a practice adopted by two firms in China, where surrogacy is also illegal.
Not quite a decade ago, Thailand came under scrutiny when a Down syndrome child, born by a Thai surrogate, was abandoned by his biological parents. In response, Thailand clamped down on surrogacy tourism, enacting laws that “allowed only married Thai couples or couples with one Thai partner, who have been married at least three years,” to seek surrogacy and banned commercial surrogacy. But last March, Thailand revealed plans to resurrect its commercial surrogacy trade.
Trafficking Fears
The new Thai initiative is not without controversy. Fears of baby trafficking are surfacing along with concerns over the subjugation and exploitation of women, although others claim these risks are overstated. Some experts advise that Thailand should continue improving women’s earning power and employment options so they don’t turn to surrogacy out of desperation.
“So, if they’re choosing to engage in commercial surrogacy, they’re making that choice freely, and they’re able to choose commercial surrogacy from an array of ... other types of decent work opportunities.”
- Maya Linstrum-Newman, Head of policy for the Global Alliance Against Traffic in Women.
One advocate urged the government to create clear rules for the hospitals and clinics licensed to provide surrogacy services, such as constructing standardized contracts for the couples and surrogates and urging vigorous follow-up even after the babies are delivered. (Surely, once the process is decriminalized, people will feel freer to report violations).
While contractual legal issues have long been with us (e.g., the claim of whose baby it is when the surrogate reneges and refuses to give up the child), those issues can be addressed with careful contracts and stringent enforcement. Perhaps of greater significance, and most overlooked, are health concerns to the surrogate. Interestingly, that aspect has been most carefully evaluated in the country with the most encouraging yet most careful regulation of artificial fertility – the United Kingdom.
US
While some countries focus on the commercial aspects of the practice, it’s important to focus on the medical indications, as done in the US where the “The American Society for Reproductive Medicine (ASRM) recommends surrogacy in cases where “a true medical condition precludes the IP [intended parent] from carrying a pregnancy or would pose a significant risk of death or harm to the woman or the fetus.” While artificial reproduction (e.g., IVF, embryo or sperm “donation”) is generally hardly regulated in the US, surrogacy laws are enacted on a state-by-state basis.
While some critics argue that gestational carriers (GCs) are exploited, proponents disagree.
“ASRM guidance stating that GCs must be of legal age and preferably 21 or older, have a stable home environment and social support, and ideally have experienced at least one straightforward pregnancy and delivery”
- Vanessa Brown Calder, CATO Institute
However, this rosy picture ignores the fact that any pregnancy, whether natural or via surrogate, impacts the birth mother. These risks can be unpredictable, including low-lying placenta, placenta previa, breach or transverse positioning impacting delivery, hyperemesis gravidarum, and gestational diabetes. According to a recent, robust, longitudinal study reported in September, the risks of severe maternal morbidity in Canadian surrogates were significantly increased compared to those involved in unassisted conception, particularly hypertension and postpartum hemorrhage. [1]
Another concern is the impact of the health of the gestational carrier on the health of the fetus and, ultimately, the health of the baby.
It Doesn’t Have to be All or Nothing:
In countries where surrogacy (and IVF/artificial fertility generally) are not carefully regulated, the health variable is often overlooked or short-changed. However, even in countries that are regulated, like Canada, untoward results can be produced. [2]
Things tend to be better in the UK, which regulates artificial reproduction under the Human Fertilisation and Embryology Authority (HFEA) and carefully reviews the regulations and outcomes. To illustrate, one UK company, Surrogacy UK, has a rigid and robust “admissions policy” and rejects over two-thirds of all surrogate applications. Their comprehensive risk assessment evaluates:
“obstetric health, BMI, age, physical health, emotional health, previous and current medical conditions, and any medications taken. Social factors such as family composition and support systems are also thoroughly considered. Further checks include background checks on all adults in the household, social services checks, and an assessment of the applicant's understanding and potential vulnerability. This includes identifying any risks of coercion, including financial coercion” [3]
Risk-Benefit Analysis
Like all medical procedures, the ethics of surrogacy boils down to a risk-benefit analysis and full, knowing, and voluntary assumption of the risks. Latent coercion - when women are exploited or are destitute - complicates the informed consent analysis. Calibrating a risk-benefit analysis when the risks and benefits are born unequally by different parties also poses thorny questions. To a biological couple desperately seeking a child- the risks are non-existent or de minimus; not so for the surrogate.
Besides payment, the benefits to the surrogate should involve some true altruistic motive- or perhaps a nationalist desire to help a country whose population is in decline. Focusing on a definitive benefit to the surrogate, such as altruism, might help better balance the equation. Additionally, requirements (and reimbursement) for top-level medical care should be a legal requirement.
Tourism and Equal Availability
Regarding reproductive tourism, that possibility beckons only where cost-effective options are unavailable back home. Getting by on the cheap (due to skimping on medical attention) only guarantees the gestational carriers are not getting top-flight care (and may not be in prime health), features most would-be parents would want guaranteed.
As for legislatively limiting the miracle of birth by denying surrogacy – I wring my hands and wipe my eyes.
[1] Severe Maternal and Neonatal Morbidity Among Gestational Carriers: A Cohort Study Annals of Internal Medicine DOI: 10.7326/M24-0417 “Surrogates were found to have a 14.9 percent risk of hypertension and postpartum haemorrhage, compared to an 11 percent or 12 percent risk, respectively, for women who have a baby following IVF. Women who conceived naturally experienced a six percent risk of postpartum haemorrhage, and seven percent risk of hypertension.”
[2] The study involved Canadian surrogates, who were older and less healthy than, for example, the recommendations issued for surrogate selection in the US.
[3] Surrogacy health risks-Do UK surrogates need to be worried? PET BioNews
