I. Introduction to the Problem

Cross-border surrogacy is a global industry that offers intended parents options for family formation by providing foreign surrogate mothers remuneration, directly or via an intermediary, in excess of their actual out-of-pocket expenses. It is a multi-million-dollar business with no international regulation.Footnote ¹ In most countries, limited domestic regulation or oversight is in place. Many countries − such as Australia, the United Kingdom, New Zealand, Canada, Hong Kong and South Africa − only permit altruistic surrogacy, while Germany and France ban surrogacy entirely.Footnote ² Fully legalized commercial surrogacy is the model followed in some states in the United States of America (USA), as well as Georgia and Ukraine.Footnote ³ This unregulated cross-border market has produced a lucrative business, with surrogacy arrangements growing by nearly 1,000 per cent between 2006 and 2010.Footnote ⁴ The for-profit surrogacy sector has expanded and fertility not-for-profit organizations have also entered the market.Footnote ⁵

This piece examines the growing role of not-for-profit surrogacy organizations based in Australia in cross-border surrogacy, along with their potential impact on the human rights of surrogate mothers. These organizations establish relationships with offshore for-profit service providers to promote cross-border surrogacy, with a particular focus on countries in the Global South. The rise of this unregulated international surrogacy industry entails human rights risks, including for surrogate mothers in the Global South who report exploitation and a lack of decision-making power.Footnote ⁶ Cross-border surrogacy, which has been described as ‘outsourcing the womb’, can exacerbate gender, class and racial inequalities.Footnote ⁷

While concerns about human rights abuses in relation to cross-border surrogacy have been explored extensively in human rights and feminist literature, the problem of exploitation of surrogate mothers has not been framed in relation to the activities of not-for-profit surrogacy organizations.Footnote ⁸ Thus, the involvement of these not-for-profit surrogacy organizations in cross-border commercial surrogacy have, to date, also been ignored by the business and human rights (BHR) field. This gap means that there has been no analysis of the behaviours of these organizations and the applicability of cross-border or extra-jurisdictional regulatory frameworks to their activities.

The aim of this piece is to draw the attention of the BHR field to the role of not-for-profit surrogacy organizations. The qualitative data upon which the piece is based were collected from not-for-profit surrogacy organization websites and non-participant observations of surrogacy seminars held in Australia by not-for-profit surrogacy organizations from October 2019 to October 2020.Footnote ⁹ While there is a need to respect and protect the human rights of all parties in cross-border surrogacy, this piece focuses on the interests of the surrogate mothers. The discussion is not only situated within human rights discourses but also draws on feminist literature.Footnote ¹⁰

Regulatory schemes in countries across the world are not designed in a way that is protective of the rights of the surrogate mothers.Footnote ¹¹ Prohibitive regulations, where commercial surrogacy is banned, have caused heightened exploitation because a ban in one country has been shown to lead to surrogacy service providers moving their practices to locations where there are greater human rights risks for the surrogate mothers.Footnote ¹² In contrast, permissive approaches, where commercial surrogacy is allowed, focus on improving the market function, while falling short of fully protecting surrogate mothers’ rights, indicating scope for improvements in this approach.Footnote ¹³

Arguably, under international human rights law, surrogate mothers have rights to health, autonomy, to be free from degrading treatment and to be free from discrimination.Footnote ¹⁴ However, international human rights law does not offer a ‘univocal answer’ regarding how to protect surrogate mothers and may be interpreted to allow both permissive and prohibitionist regulatory approaches.Footnote ¹⁵ One solution would be the development of a multilateral treaty, but a significant barrier is that prohibitionist countries may be unwilling to ratify.Footnote ¹⁶

The United Nations Guiding Principles on Business and Human Rights (UNGPs) provide an authoritative statement on the relationship between business and human rights.Footnote ¹⁷ However, the UNGPs have not yet been applied to the context of cross-border surrogacy. Using Australia as a case study – where it has been suggested that the surrogacy market should be regulated to protect human rightsFootnote ¹⁸ – this piece sees not-for-profit surrogacy organizations as important players in cross-border commercial surrogacy and proposes an innovative solution to protect human rights by calling on the Australian government to regulate these organizations in accordance with the UNGPs. Without presuming transferability, this discussion may also prove useful for other countries looking to improve regulation of surrogacy organizations and businesses.

II. A New Mode of Surrogacy Organization: Not-for-Profit Surrogacy Organizations in Australia

In Australia, commercial surrogacy is prohibited in all states (except the Northern Territory) and the Australian Capital Territory, Queensland and New South Wales extend their prohibition to arrangements that are entered into by their residents outside Australia.Footnote ¹⁹ These regulations are likely to be ineffective in cross-border situations because the courts have determined that the best interests of the child should outweigh public policy considerations, and persist in granting intended parents parentage where the surrogacy arrangements are transnational and commercial.Footnote ²⁰ Furthermore, while the guidelines of the National Health and Medical Research Council state ‘Do not undertake or facilitate commercial surrogacy’, it is noted that there is no definition of, or guidance on, what exactly constitutes ‘facilitating’ commercial surrogacy.Footnote ²¹ This lack of clear definition and guidance contributes to a significant governance gap with respect to surrogacy facilitators.

Not-for-profit surrogacy organizations are distinct from traditional, for-profit surrogacy service providers.Footnote ²² The latter set up the transaction and charge intended parents thousands of dollars, while the not-for-profit surrogacy organizations provide a platform to connect for-profit surrogacy service providers with intended parents, asking intended parents a small registration fee for attending seminars.Footnote ²³ In these seminars, agents, lawyers and counsellors from several countries are invited and function as sponsors, introducing surrogacy services relating to their businesses to intended parents.Footnote ²⁴ A global, cross-border network is formed, which enables intended parents to access surrogacy services.

Growing Families and Families through Surrogacy are not-for-profit advocates for intended parents wishing to access cross-border surrogacy.Footnote ²⁵ These organizations hold seminars to inform intended parents about the pathways to cross-border surrogacy. They discuss how to maximize the success rates of surrogacy and minimize costs and risks, as well as how intended parents can secure sole custody of the resulting children; they also make arrangements with IVF clinics, airlines and cryoshippers, expediting travel of intended parents or freezing and shipping sperm and embryos.Footnote ²⁶

III. Human Rights Risks Raised by Not-for-Profit Surrogacy Organizations

It is argued by feminists and human rights defenders that cross-border surrogacy arrangements threaten the surrogate mothers’ rights to health and autonomy, especially in the Global South.Footnote ²⁷ Such human rights risks are largely ignored in seminars held by the not-for-profit surrogacy organizations.Footnote ²⁸ The presentations do not address structural factors, such as the relatively low levels of education or socio-economic status, that frequently constrain the surrogate mothers’ ability to provide informed consent; nor of the potentially devastating health consequences caused by coercive multiple embryo transfers, caesarean deliveries or the abortion of fetuses.Footnote ²⁹ Furthermore, particular countries recommended at the seminars − such as Ukraine – are less costly than other destinations, but this cost advantage comes with fewer legal protections for surrogate mothers.Footnote ³⁰ While representing a more attractive option for consumers, recommending surrogacy arrangements in jurisdictions such as Ukraine risks exacerbating exploitation. Although Growing Families lists minimum standards on its website with which all for-profit service providers should abide in order to ensure the rights of surrogate mothers,Footnote ³¹ these claims seem to function as marketing strategies to meet the intended parents’ need to mitigate uncertainty while smoothing the way towards a surrogacy process resulting in a healthy child.

This new mode of surrogacy organization in Australia and the network of surrogacy service providers now operating have adapted with great dexterity to legislative developments. Although New South Wales, the Australian Capital Territory and Queensland have criminalized cross-border surrogacy arrangements, not-for-profit surrogacy organizations frame surrogacy-related services as being for educational purposes.Footnote ³² These organizations carry out their functions in the grey area between providing education to reduce risks associated with cross-border surrogacy and brokering offshore commercial surrogacy services. This unregulated space heightens the risk that surrogate mothers may experience increased vulnerability, marginalization and human rights abuses.

IV. A Call for the Application of the UNGPs

Our observation is that the establishment of a cross-border surrogacy network via not-for-profit organizations invalidates and undermines prohibitive regulations in Australia. A more pragmatic response on cross-border surrogacy facilitation in Australia to reduce human rights risks is therefore necessary. We contend that the UNGPs may be a useful tool on the road to an effective, rights-based regulatory approach to surrogacy practices in Australia. We do not pursue the argument that not-for-profit surrogacy organizations should be classified as businesses per se. We highlight that the grey zone within which these organizations operate has sufficient commercial content for them to fall within the UNGPs’ scope. This means that the concept of the corporate responsibility to respect human rights and human rights due diligence could usefully inform the regulatory model of these entities.Footnote ³³

A clear starting point would be to establish human rights-based professional practice guidelines to protect the rights of surrogate mothers. Currently, no such standards are in place to guide the conduct of not-for-profit organizations that facilitate commercial cross-border surrogacy. A further proposal is that the Australian government should conduct accreditation of not-for-profit surrogacy organizations based on these requirements. Furthermore, not-for-profit organizations should fully disclose the risks and dangers that surrogate mothers may encounter in the surrogacy process and restrict their collaboration with surrogacy service providers in jurisdictions that expose surrogate mothers to significant human rights risks.

Not-for-profit surrogacy organizations are generally small and medium-sized and may not have the capacity to contribute to accessible and effective remediation for surrogate mothers. We believe a more rigorous approach is needed that entails the Australian government providing a means for surrogate mothers to gain compensation and other forms of remedy for various forms of losses. This would require the development of a regulatory framework for not-for-profit surrogacy organizations to impose liability for extraterritorial activities, including their adverse human rights impacts.

These suggestions provide an interlocking suite of reforms that draw from the UNGPs, to provide better protection to surrogate mothers by regulating not-for-profit surrogacy organizations. More work still needs to be done to align the policies which are, at present, fragmented and inconsistent. An additional concern is that not-for-profit surrogacy organizations might use accreditation and human rights due diligence to market themselves as human rights defenders to build their business reputation. Although the transparency and accountability proposed here would be helpful to avoid the risks of ‘whitewashing’ cross-border surrogacy facilitations, more research is required to ensure the design of an effective legal framework. We believe surrogacy industry actors, human rights in surrogacy, and current regulatory gaps deserve the attention of the BHR community, whose notice these issues have not yet attracted.