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Definition of surrogacy
First, it is important to define what surrogacy is—or whatever name this practice is known by—to clarify that it is in no way an assisted human reproduction technique, but rather the social practice of hiring a woman, with or without remuneration, to gestate and bring into the world one or more children, conceived or not with her own eggs, in order to hand them over to one or more people who wish to be designated as their parents, obtaining the transfer of parentage in their name and erasing the mother who brought them into the world.
Human trafficking is legally defined in the Palermo Protocol
Trafficking in persons shall mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, fraud, deception, abuse of power or of a position of vulnerability, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Consent given by a victim of trafficking in persons to any form of intentional exploitation described in any way shall be disregarded where any of the means set forth above have been used.
This legal definition of human trafficking is introduced in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, a protocol to the United Nations Convention against Transnational Organised Crime. Popularly known as the Protocol against Trafficking in Persons, or the Palermo Protocol, it is one of three protocols adopted by the United Nations in Palermo, Italy, in 2000. It entered into force on December 25, 2000.
It was adopted in 2003, and by 2022 it had already been ratified by 180 States Parties.
The Protocol against Trafficking in Persons is the first legally binding international instrument for States Parties and the first international legal text that establishes a definition of trafficking based on conduct, means and purpose.
Human trafficking involves conduct such as the recruitment, transportation, transfer, harbouring, or receipt of persons in vulnerable situations, and means such as the threat or use of force or other forms of coercion, fraud, deception, abuse of power, or the receipt of payment or benefits, to obtain a person’s consent for the purpose of exploitation. The consent given by the victim is irrelevant.
Deception in the recruitment or enticement of women for the purpose of reproductive exploitation
Surrogacy is human trafficking insofar as all women are recruited to be “surrogate” mothers through the following deception:
- They are not mothers of the creatures they bring into the world. Those creatures they bring into the world are neither daughters nor sons
- Since they are not mothers of these creatures, they neither sell them nor give them away; they only return them to their parents (the limited partners, in reality) once they give birth after completing the gestation process.
- The process they are going to undergo is an assisted human reproduction technique, giving the practice a bias. Although ART may intervene in that process, such as in vitro fertilisation or artificial insemination or embryo transfer, surrogacy as such, with its multiple actors outside the medical field, cannot be classified as ART.
The recruitment of women through deception for the purpose of reproductive exploitation is intrinsic to surrogacy or any euphemism used to name this social practice that consists of impregnating a fertile woman so that she hands over her newborn daughter or son to those who have commissioned it through a verbal or written contract, whether or not it is paid and whatever method is used to make her pregnant: natural or artificial insemination or in vitro fertilization and embryo transfer.
- If it weren’t for this deception in recruitment, there would be no surrogacy.
- If it weren’t for this deception, there would be no industry.
- This deception is systemic in surrogacy.
Women are deceived and convinced—because very few women would sell or give away their children if they were aware that they are their mothers—that, since their genetic material is not involved, they are not the mothers of the son or daughter they give birth to, and that for this reason they have to hand it over to the commissioning parents, who are the ones who have provided their own, donated, or purchased gametes to constitute the embryo that is transferred to the surrogate mother.
This fiction is based on a confusion between biology and genetics: pregnancy is a biological process, so the pregnant woman is the biological mother, and the sperm donor undoubtedly has a genetic link to the child, but since he is not involved in the pregnancy, it is misleading to designate him as the biological parent. Even more erroneous is extrapolating this confusion to the woman, considering her the biological mother only if she has contributed her genetic material.
Why then should they renounce their parental rights if, as is claimed, they are not the children’s mothers? All surrogate mothers, regardless of the legislation or model (commercial or altruistic), must renounce their maternal rights before or after childbirth—because in every country in the world, maternal rights are determined by childbirth—and are entitled to the rights and obligations that come with parental authority, as well as maternal and child benefits, such as maternity leave or benefits, reduced working hours for breastfeeding for working mothers, and other tax benefits.
Since in vitro fertilisation and embryo transfer proved effective in the late 1970s and became widespread as assisted reproduction techniques, they have served two opposing purposes:
To reinforce the association of conception, gestation, and childbirth with motherhood. To tell women that they are indeed mothers to the children they bring into the world, even if those children don’t carry their genetic material, since motherhood is determined by childbirth, which is indisputable in any country in the world. This is what fertility clinics convey to patients with fertility problems who come seeking treatment on their own.
To separate conception, gestation, and childbirth from motherhood, surrogate mothers are told that they are not the mothers of the children they bring into the world because they do not carry their genetic material, and that they must relinquish their parental rights and transfer them to the intended parents. This is what agencies and clinics convey to surrogate mothers and their clients, who will be recognised as parents, even though their only contribution is a sperm sample, their own, donated, or purchased eggs, signing a contract, and putting money on the table.
Coercion in the recruitment of women for the purpose of reproductive exploitation
Surrogacy is human trafficking insofar as all women are recruited to be surrogate mothers through coercion. The sexist stereotype that assumes women have an innate inclination to sacrifice themselves for others and educates them to do so constitutes a vulnerability factor. Coercion can operate on a psychological, cultural, familial, emotional, social, religious, and, above all, economic level, since payment or compensation is a significant incentive, if not the primary one, when it comes to consenting to becoming a surrogate mother.
Women’s primary vulnerability is economic. The feminisation of poverty is global, with women suffering the most from unemployment, precarious contracts, temporary and part-time work, and the gender pay gap. Unpaid and care work disproportionately falls on women, exacerbating the consequences of multidimensional poverty, which is even more pronounced in countries embroiled in armed conflict, such as Ukraine and Russia, both of which legalise surrogacy. In these conditions of economic and social insecurity and vulnerability, many women are prime targets for trafficking for sexual and reproductive exploitation in exchange for payment or even a promise of payment that is not always fulfilled. This recruitment of vulnerable women operates unchecked online, as seen in the thousands of surrogacy recruitment groups on Facebook.
Multidimensional poverty is more prevalent among women than men across all five continents—27.4% of women in Latin America and the Caribbean live in poverty—and has worsened disproportionately since the COVID-19 pandemic. The capacity for autonomy over sexual and reproductive health is inversely proportional to poverty: the greater the poverty, the less sexual and reproductive autonomy.
The transfer of women for the purpose of reproductive exploitation
In addition to the deception and coercion inherent and intrinsic to the recruitment of women for reproductive exploitation, the transportation of women adds a significant element to trafficking.
In 2021, the International Coalition to Abolish Surrogacy (CIAMS), together with the European Network of Migrant Women (ENoMW), undertook a study of media-documented cases in 72 countries, with Greece, Ukraine, Mexico, and India receiving more in-depth analysis. Despite the considerable amount of information gathered, it was found that very few academic studies or official reports existed on the movement of women in the context of surrogacy, making the findings of the CIAMS and ENoMW research highly relevant.
We have observed that some migrant women, sometimes with personal plans unrelated to surrogacy, are recruited as surrogate mothers in their destination country. Similarly, some women are initially recruited to be used as surrogate mothers in their home country but are later transferred to another, sometimes within the context of human trafficking networks or to give birth in the commissioning parents’ country for their convenience.
Occasionally, this is done to reduce the cost of surrogacy, to circumvent prohibitive legislation, or to provide them with medical procedures unavailable in their country of origin. Whether they migrate to another country with or without the intention of becoming surrogate mothers, whether they migrate after becoming pregnant for the surrogacy industry, or whether they are recruited at their destination, these women share a very similar profile. The vast majority, if not all, of them find themselves in a situation of extreme economic and social insecurity and vulnerability, exacerbated by migration.
This study also highlights a specific type of displacement these women face: they must leave their family environment to undergo all the imposed treatments, particularly embryo transfer and childbirth, which is too often performed unnecessarily by cesarean section. Far from their daily and family surroundings, they are more vulnerable.
These women are victims of human trafficking, often of forced pregnancies, and of physical and psychological violence. Furthermore, they are very likely to be abandoned once they have handed over their baby in the destination country. These women are also victims of fraud, frequently not receiving the promised or agreed-upon payment, and they face a serious risk of being trafficked again for other forms of exploitation, such as sexual exploitation or forced begging.
Fraud in the recruitment of women for reproductive exploitation
Many surrogacy agencies engage in fraudulent advertising to recruit clients. On their websites and social media platforms, such as Facebook or Instagram, they promise very substantial payments that are not realistic or fail to mention that the amount includes twin pregnancies, cesarean sections, or hysterectomies.
Receiving women for the purpose of reproductive exploitation
The reception of women, often under conditions of confinement or semi-confinement, is yet another element that transforms surrogacy into human trafficking. This usually occurs in the third trimester before childbirth, but cases have also been documented throughout the entire pregnancy or after delivery, in order to control the woman while the registration of the newborn and the necessary authorisations for its export are carried out. Only when these procedures are finalised does the surrogate mother receive her full payment and regain her freedom. The vulnerability of these women is exacerbated by their pregnancy or postpartum status, often following a cesarean section.
Women used as surrogate mothers lack autonomy and freedom of movement. They are subject to strict schedules and curfews. It’s not necessary to look beyond the women’s farms in India, Cambodia, Nepal, or Cancún (Mexico); confinement also occurs in Ukraine, where pregnant women are transported to Kyiv and housed in apartments owned by the agencies themselves, in overcrowded conditions and subjected to schedules they are forced to respect. And, in general, and in any country, surrogacy contracts include clauses regarding the radius of free movement that the pregnant woman cannot exceed without express authorisation.
In addition to these imposed living conditions, women recruited to be surrogate mothers suffer restrictions on their sexual freedom, are subjected to surprise tests for tobacco, alcohol, and drug use, and are often forced to follow diets tailored to the client’s preferences. They lose their autonomy as patients and must submit to medical tests and examinations imposed by the agency and the clients, and are also obligated to participate in the reporting and evaluation of results.
Currently, Nigeria has no law addressing surrogacy even though 65% of human trafficking cases occur internally and 35% cross international borders.
This report was first published by ICASM/CIAMS, a coalition with 60 organisations across 20 countries, including Naija Feminists Media. The report has also been forwarded to Reem Alsalem, United Nations Special Rapporteur on violence against women and girls.
