Skip to main content
opinion

Nurse Oksana Martynenko feeds a surrogate-born baby inside a special shelter owned by BioTexCom clinic in a residential basement, as Russia's invasion continues, on the outskirts of Kyiv, Ukraine March 15, 2022. Picture taken March 15, 2022. REUTERS/Gleb GaranichGLEB GARANICH/Reuters

Anna Feigenbaum is a professor in digital storytelling at Bournemouth University and the author of the forthcoming book Fertile Fortunes: IVF and the Business of Baby-making.

Among the most heartrending footage that has emerged from Russia’s invasion of Ukraine has been of the children.

They have suffered the misfortune of being born in what is now a warzone, and many have been orphaned, injured and killed by Russian violence. According to UNICEF, 7.1 million people have been internally displaced in Ukraine so far, including up to 2.8 million children; more than 4.5 million people, 90 per cent of whom are women and children, have been forced to flee the country altogether. An entire generation of Ukrainians now threatens to be hollowed out.

Yet for some in the West, the focus has been on a different category of Ukrainian children: the surrogate-born babies promised to foreign couples around the world.

Ukraine has long been an international surrogacy hub, as one of the few countries in the world that allows foreign parents to hire a local woman to gestate a child on behalf of a commissioning couple or party before the child is handed over at birth.

So ever since Russia’s invasion began in February, dramatic stories of foreign parents uniting with their surrogate-born babies from a country at war have emerged. One Australian couple flew from Melbourne to Poland before crossing the border to meet their newborn daughter in Odesa, enduring nearly three weeks of shelling there before being evacuated to Moldova. Another couple, meanwhile, hired a team of U.S. Army veterans to undertake Operation Gemini: a mission to spirit their prematurely born twins from Kyiv to safety. There were also the four babies born to surrogate mothers who were discharged from a maternity hospital in Kyiv and sent to neighbouring Romania, so that three Irish couples could come to collect them. BioTexCom – one of Ukraine’s leading fertility companies – even released video footage of staff nurses working to keep newborns safe in a bomb shelter until they can be transported out of the country to their intended parents abroad.

But now, controversies around surrogacy have been reopened – ones that flared up in Ukraine as recently as two years ago, when COVID-19 travel restrictions stopped would-be parents from uniting with their children. The pandemic left dozens of surrogate-born babies in Ukraine without homes or even nationality, since they are stateless in the country until naturalized in the client parents’ countries.

The issues around surrogacy are long-running and profound: They tap into our beliefs about parenthood, genetic kinship, race, pregnancy and child safeguarding, and about the line between protecting women from exploitation and supporting women’s rights over their own bodily labour. War in Ukraine, then, has only amplified what has already been true for decades: Surrogacy is far from simple.

The practice has been around for thousands of years; historical records suggest that informal surrogacy goes as far back as ancient Egypt and Babylon. But the establishment of formal surrogacy contracts and a for-profit commercial surrogacy industry only began to take shape in the 1980s.

Scientific developments in artificial insemination and in-vitro fertilization (IVF) then led to “gestational surrogacy,” an arrangement in which the sperm and egg of intended parents or donors can be placed in a woman who would carry the pregnancy, and who would thus have no genetic ties to the baby. This reproductive process made it easier for intended parents to become the legal parents, especially where at least one intended parent is the sperm and/or egg donor.

It did not take long, however, for surrogacy arrangements to attract controversy. The mid-1980s saw the highly politicized cases of Baby M in the United States and Baby Cotton in Britain, both of which had been arranged through then-nascent surrogacy agencies.

In the Baby M case, the contracted surrogate mother, who was also the egg donor, tried to claim parenthood from the intended parents; in the Baby Cotton case, social services intervened, taking custody from the newborn’s British surrogate and blocking the claims of the intended U.S.-based parents. Judgments in both cases upheld the rights of the intended parents on the grounds that it was in the babies’ best interests.

While the Baby M case led to debate over what counts as motherhood and if a surrogate could really detach from her child, the Baby Cotton case led to conflicting opinions over payment for surrogacy and fears of baby-selling both nationally and internationally. These debates then influenced the formation of early regulation and put the commercialization of surrogacy on the international agenda.

However, fast-paced advances in reproductive technology and continuing ethical debates made it extremely difficult for policy makers to find regulatory solutions that could balance protecting women from exploitation with supporting women’s rights over their own bodily labour. In response, some Western countries have banned the practice outright; others, such as Canada, have made marketing such services illegal, while only permitting reimbursement rather than compensation to the surrogates. The premise in such countries’ laws is that surrogacy should be “altruistic,” a gift that is not influenced by self-interest.

But unsurprisingly, given how much the process demands, this has led to a small to non-existent “supply” of surrogates in Western countries, while demand has only grown. That boom has been driven by a rise in infertility, trends around delayed parenting, more LGBTQ couples seeking to start families, celebrity success stories and increased international regulation around adoption that has made that process more intrusive, slower and more expensive.

This high demand for surrogates has led to the “outsourcing” of surrogacy to countries around the world with looser laws. As University of Bern Professor Carolin Schurr wrote, “Just as other kinds of services have been outsourced to low-wage countries to reduce costs within a global commodity chain, reproductive labor is outsourced in global fertility chains to women living in deprived socioeconomic conditions.”

For many years, India and Thailand served as surrogacy hubs for foreigners until national and international outcry exploded over exploitative practices, child safeguarding and profiteering agencies. These controversies resulted in both countries imposing a ban in 2015, leading industry entrepreneurs to seek out other potential sources of surrogates. They landed on Ukraine.

Companies that set up shop in the country, which was economically struggling yet medically advanced, weren’t just able to offer prices at half the cost of the U.S. (where commercial surrogacy is also legal); they could, however, promise much laxer regulation.

The benefits of Ukraine that were marketed to consumers included the legal recognition of intended parents as legal parents for surrogacy, no legal rights for surrogates, anonymous egg donors, no age limit for embryo implantation, no limit on the number of embryos that can be implanted and long-term embryo storage, as well as English-speaking clinics. So fertility companies quickly began putting up advertisements on public transit in Ukrainian cities, promising good wages for healthy wombs and eggs.

Ukraine also had another market advantage: Ukrainians’ whiteness. Fertility research over the past decade has shown an increase in the selection of white donors. That is in part driven by “race mixing” – the whitening or lightening of babies through the donor-selection process, when non-white intended parents choose a white donor egg or sperm – and by white people’s desire to select a donor that matches their complexion.

These choices display what Dr. Amy Speier describes as “the reproduction of whiteness” through fertility tourism. As Prof. Schurr argues, whiteness in the surrogacy industry “not only stands for skin colour, but rather serves as a surrogate for economic status, financial affluence, nationality, and class belonging.”

Catalogues of recruited gestational workers, promotional websites and brochures showcase images of youthful white donors, white surrogates and smiling white babies. This reflected my 2019 study of international sales brochure covers at London’s premier Fertility Show, which found that all but one baby picture was white; most often, marketing materials depicted blonde and blue-eyed smiling babies. And in his 2012 study, law professor Jim Hawkins found that 62.93 per cent exclusively had pictures of white babies.

Ukraine, along with certain other post-Soviet countries, find themselves in a unique position in this regard. At the same time as Ukrainians are receiving what some argue has been a more pro-active humanitarian response due to their whiteness, the leaders of the “sub-European” country have still had to plead for inclusion into the European Union.

It should also be recognized that surrogacy is not easy for anyone involved. All pregnancies have potential side effects, ranging from morning sickness to acid reflux, and according to Johns Hopkins medicine, a further 8 per cent of pregnancies involve serious complications, including gestational diabetes and life-threateningly high blood pressure.

As Sophie Lewis, the author of Full Surrogacy Now: Feminism Against Family, points out, these risks are amplified when gestation is part of a contractual arrangement in which payments are often contingent on a healthy live birth; in efforts to mitigate pregnancy risks, surrogates often take on additional lifestyle restrictions, medical treatments and tests. According to Alison Motluk, who writes the Ukraine Surrogacy Dispatches newsletter, intended parents sometimes want their surrogate to relocate, despite her wishes. When surrogates do not have the power to negotiate, the alienating and exploitative conditions of their job intensify.

There are also challenges for the intended parents. Most eligible heterosexual couples – the only type of prospective parents allowed to enter into contracts in Ukraine – do so only after many difficult years of trying to conceive. These efforts often include multiple miscarriages, invasive procedures and huge financial losses incurred through successive failed fertility treatments. Such failure has been shown to cause anxiety, depression, grief, feelings of hopelessness, worthlessness and anger. Infertility frequently leads to increased tension and stress in relationships and can create further health complications.

Then there are the couples that have become, as retired Aurora University associate professor Dr. Ann Bergart wrote, “addicted to trying.” In interviews, they describe being seduced by hope and unable to accept that they would “give up” on having a baby. They also report social pressures and potential social penalties for not having children; across cultures and religions, infertility is often framed as a curse to overcome. Today’s industry marketing taps into these painful emotions, often framing their mandates and even their agency names in the terms of new life and new hope.

The stark contrast of Ukrainian families fleeing from a war zone at the same time as foreign intended parents fly in to rescue their babies has only highlighted a big question: Whose bodies, whose labour, whose choices and whose freedom of movement do surrogacy laws protect?

The service is prohibitively expensive for the vast majority of the world’s infertile population. Even in countries such as Canada, where payments may only reimburse a surrogate for expenses, there are still high legal and medical costs. And in countries where surrogates can be paid for their labour, the majority of intended parents’ money goes to fertility agencies, lawyers and medical service providers – not to the surrogates themselves.

This is why advocates for surrogates’ rights focus on the need for greater recognition of surrogacy as labour, calling for more transparency, more autonomy for surrogates and even professional support, in the form of potential unionization.

Amid the interventions keeping surrogates and intended parents’ babies safe in Ukraine, there are lessons for global surrogacy. First, regulators cannot hide from the complexity of infertility or from the pain of desiring a family one cannot reproductively create on their own. At the same time, pretending that surrogacy occurs on a level playing field around the world, or that it must be altruistic, obscures the reality that gestation is physically and emotionally difficult work. This in turn can deny surrogates the financial compensation and security they deserve – a fact made harrowingly explicit during a war.

Second, regulation must involve scrutiny not only over fertility agencies’ financial and medical practices, but also of their marketing materials. It is in the brochures and billboards, the website testimonials and targeted social-media advertisements that our imaginations of what make a family are shaped by the interests of for-profit businesses. Culture cannot change until marketing standards do.

The war in Ukraine has been tragic and destructive, with complicated multisectoral aftershocks playing out in all the countries with which it has economic and political ties. That’s the case, too, for Ukraine’s surrogacy system, with its effects on policy, labour and representation around the world. Now, the industry as a whole has an opportunity to take the lead in making real change.

Keep your Opinions sharp and informed. Get the Opinion newsletter. Sign up today.