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Chapter 8
Unsustainable Surrogacy Practices: What We Can Learn from a Comparative Assessment
Elly Teman and Zsuzsa Berend1
Abstract
What are best practices in surrogacy and what are unsustainable ones? Comparing our long-term
ethnographic studies of gestational surrogacy in Israel and in the United States, we analytically explore
practices and outcomes we have found to be unsustainable in surrogacy agreements. We then outline
three key finding that explain better outcomes for babies and surrogates: regulated contracts,
standardized screening of all participants, and supportive relationships between participants. By
shedding comparative light on practices emergent from the "field," whether sustainable or not, we can
better identify the central regulatory mechanisms that may shield surrogacy participants from harm.
Keywords: surrogacy, surrogacy contracts, regulation, screening, intended parents
8.1 INTRODUCTION: QUESTIONS ABOUT SURROGACY
Our starting point is that transnational surrogacy has spread across the globe in recent decades
and controlling or managing it is becoming increasingly difficult. After surrogacy became available to
foreigners in India in 2005 and before it was banned there in 2017, much scholarly attention was
directed to documenting assisted reproductive practices, and Indian surrogacy became a hot topic for
sociological and anthropological research (Markens 2012; Rudrappa 2015; Pande 2014; Deomampo
2016). Critics raised the alarm about outsourcing pregnancy and childbirth to the “Global South” (e.g.
Harrison 2016). However, what seems to be happening is that several countries, such as India, Thailand,
and Mexico have banned international couples from accessing surrogacy services and these bans have
redirected assisted reproductive service providers and intended parents (IPs) (Whittaker 2016). Many of
the new locations are not in the “Global South” but in Ukraine, Russia, the Czech Republic, and others,
and much of the traffic has been flowing toward an already busy destination, the US.
Since so-called commercial, or compensated, surrogacy has been somewhat distasteful for many
people, and critics have painted a picture of exploitation, commodification, and oppression of financially
needy surrogates, some countries such as Australia, the UK, Thailand, and most recently India have tried
to ban commercial surrogacy but maintain altruistic surrogacy. However, the difference between
commercial and altruistic surrogacy is often illusory, and so-called “altruistic” practices can veil
oppression and exploitation (Berend 2016) and be more problematic than compensated surrogacy. It is
clear that sustainable solutions will require some regulation to ensure that the rights of all parties
involved are balanced and protected in ways that the market cannot provide.
1 Elly Teman, Senior Lecturer, Department of Behavioral Sciences, Ruppin Academic Center, Emek Hefer, Israel.
mslula@gmail.com
Zsuzsa Berend, academic administrator, Department of Sociology, University of California Los Angeles, Los Angeles,
CA, USA.
2
All these developments raise questions about the role of regulation and the social organization
of assisted reproductive practices, including surrogacy, in terms of outcomes because they make it clear
that banning assisted practices in some countries simply redirects those practices to others. In the
following, we compare practices in two countries where surrogacy continues to be practiced legally, yet
has received less ethnographic attention--the US (Ragoné 1994; Berend 2016; Jacobson 2016; Markens
2007) and Israel (Kahn 2000; Teman 2010), in order to illuminate better approaches or solutions to some
common problems in surrogacy. Through comparative discussion of our respective research, we aim to
highlight findings that can broaden the conversation on sustainable birth practices in other countries
where surrogacy is currently practiced, such as the UK, Greece, Russia, Ukraine, the Republic of Georgia
and Iran.
By “sustainable practices,” we mean practices that can be maintained without harming the
parties involved; we are not advocating for or against surrogacy itself. Our empirical work in Israel and
the US indicated both similarities and differences in how surrogates and IPs engage in and make sense
of surrogacy to meet their needs, as well as how surrogacy practices are organized and regulated by the
state and other actors. It is clear that sustainable solutions will require some regulation to ensure that
the rights of all parties involved are balanced and protected in ways that the market cannot provide.
Our ethnographic research is grounded in local socio-cultural and political contexts; we do not
argue that our findings are broadly generalizable to very different countries or settings. By shedding
comparative light on practices emergent from our respective fieldwork sites, we can better understand
the issues involved and point to what we view as the most central regulatory mechanisms that may
shield participants in surrogacy agreements from harm. Given the fragmentation and deregulatory
impulses of the medical landscape that have intensified under the Trump presidency in the US, as well
as the limitations of our own data, we cannot in good conscience propose legal, financial, or regulatory
policies for surrogacy in the US or elsewhere. However, we think that our comparison between Israel
and the US may contribute to more informed policies by providing empirical findings that support the
beneficial role of regulatory policies adopted in Israel. After a short background on our methods and the
legal context in each country, we outline three emergent elements that we believe can minimize harm
to those involved in surrogacy: (1) standardization and regulation of contracts as well as clinical
practices; (2) mandated screening of surrogates and IPs; and (3) open surrogacy relationships.
8.2 METHODS
The research described in this chapter draws from each of our research projects on surrogate
motherhood arrangements. While our methods are expanded upon elsewhere (Berend 2016, 2010,
2012; Teman 2010), here we briefly outline these methods and the contexts for our studies. The Israeli
study, conducted by Elly between 1998 and 2006, used multi-sited ethnographic research, including in-
depth, open-format interviews with 26 Jewish-Israeli gestational surrogates and 35 Intended Mothers
(IMs).2 Elly updated that study with interviews in the summer of 2016 with 20 Israeli surrogates who had
given birth in the past two years.
The American study, conducted by Zsuzsa between 2002 and 2013, consisted of online
ethnographic observation of discussion threads on the largest public surrogacy website in the US
(www.surromomsonline.com, henceforth “SMO”), including email exchanges with 35 surrogates
2 All the names are pseudonyms.
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recruited from SMO.3 Founded in 1997, by 2013 SMO had roughly 30,000 members, both IPs and
surrogates; many of them posted stories, questions, advice, and engaged in heated debate on critical
issues in over 30 forums. Because the overwhelming majority of SMO surrogates live in the US, we refer
to this sample as our US sample. Not all surrogates in the US participate in the SMO network, although
many read the site to gain information or advice.
8.3 THE REGULATORY CONTEXT
The legal and regulatory contexts for surrogacy in the US and Israel differ greatly, and as a result there
are key differences in how parties are protected in both countries. In the United States, there is no
federal law governing surrogacy; every state regulates it differently and some refrain from regulating it
altogether. Regulation pertains only to contracts, if that. For example, while New York, Michigan, and
Louisiana ban compensated surrogacy, other states like California allow it and IPs can establish legal
parental rights before the birth (Markens 2007). Surrogacy-friendly state legislation further encourages
a commercial market in private surrogacy agencies and fertility clinics that, unlike in Israel, are
unregulated in the US. It makes sense for agencies and clinics to flock to states whose legislation makes
it easier for the parties to enter into a surrogacy arrangement. Thus, many different couples and single
people, who may not be eligible in Israel based on age, health issues, sexual orientation, etc., are able to
become IPs in the US precisely because it is a lucrative business in an largely unregulated market.
Specific surrogacy regulations differ among states, but most of the states that allow compensated
surrogacy do not limit who can contract a surrogate or require mandatory contracts or screening,
enabling surrogates and IPs to negotiate the conditions of their arrangement either through an agency,
a lawyer, or privately (Berend 2016; Teman 2010).
Available statistics on US surrogacy are notoriously unreliable. Agencies have no reporting
obligation, independent online matching of IPs and surrogates is on the rise, and fertility clinics report
IVF cycles, not surrogate-assisted cases. There are non-binding medical guidelines for clinics about
embryo-transfer practices, and the American Society for Reproductive Medicine recently revised its
recommendation, favoring single embryo transfer. However, SMO discussions reveal that many
surrogates had more embryos transferred (as a result of the reproductive endocrinologist’s
recommendation, IP’s insistence, or their own desire to get pregnant for the couple) than the previously
recommended two maximum.
One example from SMO sheds light on some of the reasons: “After three devastating failed
transfers, we are aggressive and transferred five [embryos].” The resulting multifetal pregnancies often
require further negotiations about selective reduction (a procedure that reduces the number of
embryos in a multiple pregnancy to decrease the risk of preterm delivery or other complications).
Surrogates very often say they want to create life, not take it. However, in the earlier days of SMO, they
more often discussed their responsibility to the IPs and their desire to make them parents. Increasingly,
they articulated their changing sense of responsibility in the following way: “Isn’t our responsibility for
the babies who cannot speak for themselves? The little embryo entrusted us with its life.” Yet multifetal
pregnancies can be dangerous for both the surrogate and the babies: SMO stories testify to late
pregnancy loss, hospitalization, emergency C-sections, and premature, low-birth-weight babies who
often spend weeks or months in a NICU and may face multiple developmental challenges and long-term
health risks.
3 Since SMO is a public forum no permission for quoting from threads was necessary. However, Zsuzsa asked the
owner for permission to quote without revealing any identifiable information and the permission was granted.
4
Threads on the SMO boards reveal that in this inconsistent regulatory context, agencies, clinics,
IPs, and surrogates take it on themselves to mandate screening and come to agreements about
compensation, payment schedules, the number of embryos to transfer and conditions for termination of
pregnancy. However, although surrogates increasingly pay attention to contractual details, they also
tend to think of the contract as a way not only to protect the parties but also to work out the private
relationship between surrogates and IPs: “It's how you all handle the negotiations which will clue you in
on your future relationship and communications.” Because of how stressful contract negotiations can
be, surrogates say it is a good test of a future friendship. SMO threads show that surrogates want more
protection for all parties but are wary of regulation, even in the case of clinics: "I truly believe that for
that [responsible practices in clinics] to happen...and this can be an ugly word around here...this
industry will need better regulation. ... But regulation is a totally scary thought.”
Conversely, surrogacy in Israel is tightly monitored by the state under a comprehensive law. All
surrogacy contracts undertaken in Israel must be centrally approved by a government-appointed
committee before couples and surrogates are permitted to proceed. Both surrogates and IPs must be
Israeli citizens, share the same religion and cannot be related to one another. Restrictive regulations
prohibit same-sex couples and single men from contracting a surrogate, until recently limiting the option
to married, heterosexually paired couples with one shared child or no children, and proven infertility. In
2018 the law was amended to allow single women to contract a surrogate.
The practice is not officially encouraged by the state but viewed as a "last resort" for genetic
kinship, and is limited in scope to couples in whom the female partner has no womb, has been
repeatedly unsuccessful with other reproductive strategies, or is at severe health risk in pregnancy
(Teman 2010). Only gestational surrogacy is allowed. So-called “traditional surrogacy,” in which the
surrogate is the biogenetic mother, is not practiced in Israel. Once approved by the committee,
contracts are legally valid, the children born are full citizens, and the IPs are recognized as their parents
once a parental order is granted following the birth. We argue that our comparison of these very
different regulatory contexts reveals the most essential regulatory mechanisms that could limit the most
unsustainable practices of surrogacy. These essential mechanisms include regulating surrogacy contracts
and clinical practices while allowing open contact between the contracting parties.
8.4 ELEMENTS OF SUSTAINABLE SURROGACY
8.4.1 Standardization and Regulation of Contracts
Standardized and regulated contracts are the first essential element in eliminating unsustainable
surrogacy practices; the importance of this element emerges clearly from a comparison of the US and
Israeli regulatory contexts and their consequences on possible harm to participants. The patchwork
regulatory scheme in the US means that contracts are not standardized by states. Many surrogates work
out independent (“Indy”) arrangements that are not mediated by agencies, mostly to save the often
hefty agency fees for their IPs. In Indy arrangements, surrogates negotiate contracts with the help of
lawyers paid by the IPs. Some agencies standardize the contract, but even in such cases surrogates now
have more say than they did before to change provisions.
In some cases, surrogates argued for lowering the compensation, saying that the agency-
mandated amount was “ridiculously high.” Surrogates often battle public suspicion, even accusation
that they are “in it” only for the money and want to prove that their real goal is to help. “Most surros
were in this to help other couples and not for financial reasons, so if this is true then there really is no
reason to keep going higher and higher. I have yet to see a golden uterus. I do feel an experienced surro
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should be compensated as such, but to me anything beyond $25k is ridiculous and greedy,” wrote Molly
in 2013. 4
However, surrogates sometimes insist on adding some safeguards, most notably not putting a
cap on reimbursement of lost wages; in difficult pregnancies that require bed rest or frequent medical
appointments, such caps could result in net losses for the surrogate and her family. Others, though,
choose to forgo certain contractual provisions because they do not want to delay the process or fear
that the IPs will not work with them if they perceive the surrogate to be difficult or “money-hungry.” As
Lori explained on SMO, “I don’t want my IPs to feel like I am just trying to get their money, but I think
some of these things [in the contract] aren’t fair to me . . . but I don’t want them to be upset about it.”
In some states the contract has no validity. Still, contracts are an important issue for surrogates;
they say that the process of negotiating the contracts is how the parties get to raise and discuss all the
issues and come to an agreement. If they cannot agree about some key issues, such as selective
reduction or reasons for termination of the pregnancy, as well as essential financial provisions,
surrogates maintain that it is best to part ways. SMO stories indicate that some surrogates realize too
late that the IPs may not agree that a Down syndrome fetus is a healthy and “much loved baby” and ask
the surrogate to terminate the pregnancy, or selectively reduce a triplet pregnancy. Whether it was the
surrogate’s mistake to agree to contracts with no clear provisions about these issues is immaterial; she
suffers the consequences of such procedures, both physically and emotionally.
Years’ worth of stories and advice on SMO notwithstanding, some surrogates cannot imagine
that the IPs they “clicked with” who are “desperate to have a child” would terminate a pregnancy for
less than a life-threatening condition or would selectively reduce in case of multi-fetal pregnancy.
Because they believe they are “on the same page” with their IPs, some fail to specify in detail the
conditions for termination or selective reduction. Surrogates repeatedly urge one another, indicating
that the issues persist: “You absolutely must be on the same page as your IPs regarding things like
termination and reduction. You can’t just sign a contract and think something won’t happen to you.”
Some SMO threads were started with the explicit goal of educating surrogates about the necessity of
specifying all these matters.
There are no standard provisions about setting up an escrow account for surrogacy-related
expenses. SMO discussion threads reveal cases in which payment stopped or expenses were contested
by the couple or the escrow was held by an agency that went out of business and surrogates were left
unpaid. Some surrogates have been left with hospital bills because, as the patients, they were the legally
responsible party. Most health insurance plans have instituted surrogacy exclusions, thus IPs often need
to buy separate insurance, such as the Surrogate Maternity Contractual Liability Insurance plan, to
covers their contractual obligations to pay the surrogates’ medical expenses.
Surrogates know that suing IPs is very costly and time-consuming, and when they were not fully
reimbursed for expenses, most women maintain that having closure is more important than getting
justice. Laura’s argument was fairly typical:
Suing is worthless…unless you have limitless money to afford the time, cost and energy
of a lawsuit . . . there isn't much that can be done in regards to the contract. Ironic since
everyone says how important contracts are. But it takes hours of legal work,
depositions, travel and so on to pursue a case, especially if you decide to throw
4 All the quotes for the American study are from SMO.
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emotional distress into the mix... In the end you have to figure out how to make peace
with it all.
Conversely, in Israel, although there is no standard contract distributed through the state, the
surrogacy committee reviews each contract and asks for revisions and additions--to the degree that
lawyers involved in drawing up these contracts now include a set of standard elements they know the
committee will request. These include the amount of compensation to the surrogate and the name of
the lawyer in charge of distributing the surrogate's fee. Contracts must be submitted together with
confirmation that all funds have been deposited in escrow, including funds for psychological counseling
for the surrogate and her children up to six months following delivery, life insurance for the surrogate
and salary replacement if she has to go on bed rest; and to cover childcare, house cleaning and
maternity clothes.
Even if a surrogate feels uncomfortable with these provisions, the committee requires them,
and many surrogates end up signing contracts that include protections or benefits that they might have
forgone had they not been required. As Hanna said: "Everything that you write in the contract makes
you feel really greedy, and there are some standard things. Like if the lawyer tells you that from the 38th
week you get a cleaning person to come once a week on the couple's bill, it makes you say, ‘Wait, I feel
uncomfortable taking more money from them.’"5
Israel's medical system covers all maternity related expenses as well as the costs of IVF.
However, such practices are best understood in the context of Israel’s nationalist and pro-natalist
policies. Contracts specify the number of embryos surrogates are willing to have transferred, as well as
the conditions under which the contract will dissolve, namely, after six embryo transfers are attempted
or after a year and a half has passed since the first transfer is attempted. Surrogacy contracts are
submitted to the regulatory committee for review and are signed by the surrogate and the couple in the
presence of the committee after both surrogates and IPs are medically and psychologically screened.
Couples reported in interviews that the committee asked for revisions and additions to the contract up
to seven times before it was approved. Other couples reported that they were asked to add last-minute
corrections while they were standing in front of the committee for the final review and signing.
Surrogates meet with two members of the committee privately before contract signing and are asked
about details of the contract to make sure they are fully aware of and understand what they are signing.
Israeli surrogates described feeling as though they were being "tested" by the committee and
compared the interview to exams for entering university or an elite military unit. Hadas said: "They
investigated me there for something like three hours." Hanna explained that the committee made her
rethink and subsequently reaffirm her choice to become a surrogate: "The committee really checks that
you are not doing this out of some kind of desperation. What wound is this sitting on? They really sit
there and dig into you. It makes you think--is this really what I am choosing to do?" Raz felt the
committee had tried to dissuade her from becoming a surrogate:
And then comes the most stressful part when you are sitting in front of the committee and you
feel like they are trying to make you fail, so you won't do it, not supportive but the opposite.
They ask you questions and they give you all the answers for why you shouldn't do it. A
thousand and one reasons. . . On the one hand, I understand they want me to be aware of it all,
but on the other hand, it gave me a bad feeling, like why do I have to go through all this?
5 All the quotes from Israeli surrogates are from Elly’s interviews.
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While the Israeli approach to regulating contracts may be too unwieldy for the more
individualistic and libertarian ethos in the US, we argue that regulating surrogacy and implementing
some standards within contracts is crucial to protecting all parties involved. Contractually specifying IPs’
financial obligations and setting up mandatory escrow accounts would help protect surrogates from not
being compensated, as well as from making unwise decisions for fear of being seen as “greedy.”
Mandating that IPs cover health insurance and life insurance for the surrogate for the period following
contract signing through to six months after the birth could mitigate cases where surrogates ended up in
financial jeopardy because of out-of-pocket surrogacy-related medical expenses.
Health and employment issues related to the pregnancy may be unpredictable and never fully
preventable, but risks can be reduced with regulation. Moreover, setting limits for clinics on embryo
transfer and specifying all the reasons for termination of pregnancy would protect surrogates, help
prevent some conflicts between IPs and surrogates, and would lead to better health outcomes for the
babies created through this process. Our comparative findings show that better regulated practices
protect all parties, especially the babies who have no say and are the most vulnerable.
8.4.2 Mandated Screening of Intended Parents
The second element essential to eliminating unsustainable practices is regulation regarding the
screening of IPs, and not just surrogates. Mandatory physical and psychological evaluation of both
surrogates and IPs can screen out people who are not fit to become surrogates or to be parents via
surrogacy, yet only the former screening is done somewhat seriously in the US. Most agencies include
some background checks to ensure that IPs do not have criminal records but usually do not go farther
than that. Lack of comprehensive screening of IPs has resulted in some problematic outcomes in cases
such as when twins were handed over to a 62-year-old single man who subsequently was visited by
social workers because concerned neighbors reported his failure to care for the girls. Another case
involved an unmarried couple in their late 50s and early 60s who failed to show up to claim triplets,
conceived with donor gametes. The surrogate took them home, cared for them, and after going to
court, gained custody and put the babies up for adoption.
A third, recent case involved a 50-year-old single deaf man who wanted the California surrogate
to abort all fetuses in a triplet pregnancy. He later changed his mind and wanted her to selectively
reduce the triplets to twins, because he claimed he was not able to care for triplets financially. The
surrogate refused and after a prolonged legal battle, the intended father was granted custody. It may be
difficult to be certain who is or is not eligible for contracting with a surrogate as decisively in the US as in
Israel. Nevertheless, regulation may address some of the issues, such as how many embryos to transfer
and who is responsible for the babies once they are born, that arise when it is mostly up to surrogates to
decide with whom they are willing to work. Some surrogates are willing, even eager, to work with
anyone who wants a baby; for surrogates, saying that anyone who wants a child is unfit for parenthood
is problematic—who is to decide? However, not fully screening IPs can lead to poor social and health
outcomes and protracted legal battles that do not serve the best interests of surrogates, IPs, or babies.
In Israel, both surrogates and IPs are screened and IPs must submit a file to the committee that
includes documents attesting to their, and the surrogate's, clean criminal record, a full medical history,
and the result of recent medical tests showing that they are all healthy, disease free, and not substance
abusers. Screening procedures maintain that there will be a genetic connection between the baby and
one of its parents; the sperm is provided by the intended father and the egg by the intended mother
(IM) or an anonymous donor. The IM must be 22 to 45 years old if using her own eggs, and 22 to 51
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years if using donor eggs. Single women--permitted to contract a surrogate since the law changed in
2018--must use their own eggs since they are using donor sperm.
The screening of Israeli IPs maintains surrogacy as a "last resort" rather than a free-market
option. The committee is quickest to accept applications from IMs who had a hysterectomy or were
born without a uterus, as well as in cases in which the IM has a life-threatening disease or a condition
that could endanger her during pregnancy. In cases of unexplained infertility or pregnancy loss, the
committee requires that the IM has tried to conceive through IVF at least seven times, or had a similar
number of miscarriages (Teman 2010). The committee requires the surrogate and IPs to undergo in-
depth psychological evaluation, including intelligence tests and interviews with a psychologist to test
their mental stability and suitability for the surrogacy process. While the screening committee has been
criticized by some for limiting surrogacy participants, serving as a mechanism of symbolic control
(Teman 2016), it does prevent some of the problems we have documented in the US.
8.4.3 The Open Surrogacy Relationship
The third element that our data suggest is that surrogacy be an open arrangement in which there is
direct, unmediated communication between surrogates and IPs. A striking similarity that emerges from
each of our ethnographic findings in Israel and the US is that most of the compensated surrogates
nevertheless view surrogacy as a “gift relationship” with IPs—in the anthropological sense that involves
trust, reciprocity, and mutual obligations (Mauss 2016 [1925]). This gift relationship, in their
view, transcends the contractual relationship. Because of the small sample size in the Israeli study and a
large but self-selected group of SMO surrogates in the US, we do not wish to overgeneralize our
findings, but we can say with confidence that in both countries, most paid surrogates think of surrogacy
as far more than a business transaction and do not view the baby as a commodity. The following
response to an IM's question on the SMO boards about the surrogate-IP relationship is typical of the
ongoing relationship with the IPs’ family that many surrogates seek:
[What] I can tell you from my experience is that not every surrogate has the same
expectations of a relationship after the baby is born. I think the majority of emotional pain
comes from the surrogates who were unaware that their relationship with the IPs and their
child would end when the pregnancy was over. . . if your intention is not to continue the
relationship after the birth. . . make certain that is known to the surrogate . . . She may
choose to not be your surrogate. Respect her enough to be honest.
Zohar, an Israeli surrogate whose IPs cut off contact shortly after the birth, expressed how
intentions can change during the process, leading to disappointment:
At first you go into this because of the money issue, and then at some stage it stops being
the money and it's about her--”you'll hold a baby, you'll become a mother.” I remember
going to the store and seeing the tiny shoes and saying to myself that I hope she will need
to buy those tiny shoes soon, that she will have a reason to buy those tiny clothes, that
she'll have a reason to be up all night....The moment it was over, she called me for a few
days to see how I felt because of the cesarean and that was it. Unfortunately, it really hurt
me, there was no more contact….I had hoped there would be some kind of relationship... If
I do it again, I will choose a couple that I am sure will stay in contact afterwards.
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Our findings from the US and Israel indicate that surrogates are happier when they have contact
with the IPs both during the pregnancy and after delivery, as well as being able to formulate a trusting,
rather than a transactional, relationship. Central to both satisfaction and trust is that surrogates and IPs
should have the opportunity to discuss and clarify their expectations about the nature and duration of
their relationship, have informed consent about the process and its procedures, and have realistic
expectations. Further, we have found that surrogates are happiest when there is some clarity about the
future of the relationship after the birth. Surrogacy does not have to result in a life-long friendship, and
most surrogates expect diminished contact in the post-birth period, but they are more satisfied when it
happens gradually. More importantly, they do not wish to be lied to, misled, or unceremoniously
"dumped" after the birth.
Surrogates may wish to form a friendship based on trust with their IPs and may hope for
gratitude and appreciation of their contribution as a gift. Yet closeness, trust, and gratitude cannot be
enforced, and even surrogacy relationships that begin with trust may end with disappointment or
feelings of betrayal. A surrogate who was promised updates but did not receive any after the birth
posted the following: “I feel so used and betrayed . . . I know it is their family and right to do this but it
still hurts because I thought I was super clear with them about what I wanted/needed.” Another
surrogate whose IPs failed to deliver on their pre-birth promises wrote: “I’m a good judge of people. . .
but how can you get the know the real person through lies?. . . They simply tell you what you want to
hear. . . It was hard the first few months after birth. I felt as if I was dying.”
Although regulatory intervention cannot ensure trust or friendship, surrogates and IPs can try to
limit the harm that occurs during the process and after the birth through explicit communication.
Discussion and support networks may be beneficial for both surrogates and IPs as they learn about
potential “red flags,” common ambiguities, and provide real-life examples of mistakes and lessons
learned. Discussing problems with fellow surrogates can help those entering negotiations to be more
aware and more discerning.
While surrogates may read and hear about wonderful relationships and may expect such a
journey, there will always be couples who promise ongoing friendship but do not intend to stay in touch
or might originally intend to but change their minds later. Regulation cannot meaningfully address
relationship issues because most surrogates want genuine appreciation and friendship, not court-
mandated emails or pictures. It appears that fully protecting the parties from disappointments is not a
realistic aim, but more open communication between them can help mitigate some harm.
8.5 SUMMARY AND CONCLUSION: A CALL TO RETHINK US SURROGACY REGULATION
We end with a fervent call to rethink regulation in the US. Recent developments in the global
surrogacy arena, specifically in Thailand and India, magnify this need. In both countries, inadequate or
non-existent regulation has led to troubling practices. In Thailand, the lack of regulation led to multiple
controversies, including the trafficking of Vietnamese women who served as surrogates for Taiwanese
couples, as well as two notorious cases in which the lack of IP screening went awry (a Japanese
billionaire contracting multiple Thai surrogates and fathering 15 babies, as well as an Australian IP who
was revealed to be a convicted pedophile).
These controversies led eventually to Thailand banning commercial surrogacy in July 2014.
Rather than adopting a cohesive regulatory mechanism as in Israel, the Thai government now restricts
surrogacy to altruistic arrangements between a heterosexual couple (one of whom must be Thai), and a
female Thai relative as their surrogate (Whittaker 2016). The banning of commercial surrogacy in March
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2017 in India did not seem to be a sustainable solution either, for as Rudrappa (2016) warns, the ban led
infertility clinics to shuttle Indian surrogates across international borders in efforts to avoid the ban,
making the women wholly dependent upon agencies and clinics, vulnerable and at risk while far from
home. Christina Weis (2017:242) documented similar risks and hardships involved in both the “agency-
imposed immobility” and the commuting surrogacy arrangements in Russia, whereby surrogates travel
often from afar to St. Petersburg clinics and their movements as well as contact or lack thereof with IPs
are strictly regulated by the agency that recruited them. If surrogates violate the agency-imposed
restrictions that separate them from their children and partners during their pregnancies, they can be
held financially responsible for miscarriages or other medical issues (Weis 2017:244).
What model might work in the US to minimize unsustainable practices? While Israel has
successfully regulated surrogacy for 20 years now, its model of centralized state regulation may not be
feasible in a larger country like the US, where it might be interpreted as an intrusion on privacy and
individual agency as well as interference with states’ rights. Regulating surrogacy through federal
regulations and the courts could, however, improve the landscape of US surrogacy, because it would
prevent the current situation where people simply go to another state with less regulation to avoid rules
in their own states. Yet US federal bureaucracy is not set up to implement mandatory screening of
surrogacy contracts, IPs, or surrogates, let alone fertility clinics, as carefully as in Israel.
Moreover, at this time in US history, any attempt to pass federal legislation on surrogacy would
be impeded by a variety of factors: US state-by-state regulation is rooted in other legal practices and in a
long-standing philosophy of states’ rights, and the free-market model for agencies and clinics is also
connected to other complex structural issues. The fertility industry is hugely lucrative; attempts to
change the framework for its operation would most likely meet powerful opposition. At the time of our
writing (November 2019), the neoliberal state in the US is powerfully bolstered by recent successful
deregulatory legislation.
What is clear in light of recent developments throughout the world is that as countries such as
India, Thailand, Nepal, and Mexico close their doors to foreign or commercial surrogacy, the US
continues to be the central magnet for international surrogacy travel. It is therefore increasingly urgent
for regulation to address unsustainable practices before the US surrogacy market grows exponentially
and before more surrogates, IPs, and babies pay the price of the free-market model of surrogacy. If
surrogacy continues to be practiced, there are regulatory possibilities that can make it less problematic
that policymakers should consider and act upon as we have detailed above and reiterate here: (1)
standardization and regulation of contracts and clinical practices; (2) mandatory screening of IPs; (3)
encouraging open communication between the parties. Our findings indicate that the degree of contact
should be decided by the parties with the help of expert legal professionals, and surrogates should not
be misled about the nature of the relationship.
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