“Collateral damage”: The invasion of Ukraine reminds us of the cost of surrogacy, and who pays the price

The term “collateral damage” is used in military contexts with reference to the immunity of non-combatants, in terms of the principle of distinction between civilian and military targets. The use of the term is a recognition that military action has effects, some intended and some not, for which the actors may be held morally and legal responsible. In its more common and more cynical usage, “collateral damage” has become euphemistic code for wanton destruction that is simply shrugged off by those who “can handle the truth”. Since at least the time of the Iraq war, the term no longer commonly refers to the consideration of “unintended damage” — such as in traditional Catholic moral reasoning — but rather to “intended damage” that is calculated and factored into the planning of a military mission. And everyone knows this, even if we don’t always say it out loud.

The international surrogacy industry too is calculated in the damage it inflicts to women’s lives. This is, in part, because the surrogacy system works on a franchise model — in other words, it doesn’t look like a part of global late-capitalism; it looks like the creation of happy families. And these “families” are not presented as what they are: part of the damage and exploitation of global capitalism. Instead, the pictures on surrogacy websites are of glossy people who are said to have taken a “journey”: a “surrogacy journey”.

These pretty pictures, and this pretty language, disguise — indeed, we claim, are intended to disguise — a dirty industry which traffics in women’s lives as well as the lives of newborn babies. It runs parallel to other industries that put a price on the bodies of persons, like the trade in bodily organs, parts, and fluids. But the organ trade is unlawful. The traffic in organs is one of the targets of the UN Global Plan of Action to Combat Trafficking in Persons, with the UN General Assembly’s most recent resolution to combat organ trafficking being adopted in 2018. Few people can be found to defend organ trading.

Not so with surrogacy. The surrogacy journey has a seemingly endless line of philosophers and public health exponents waiting to defend the industry and its practices. One of its most effective rhetorical defences is to refer to what is known as “altruistic surrogacy” as an exemplar of what surrogacy could be like if it were better organised and regulated. But it is just another pretty picture that serves as a screen for an industry based on the commodification of the person: a woman turned into a container for an embryo, whether for payment or expenses. All states and territories in Australia make a distinction in law between commercial and non-commercial surrogacy (except for the Northern Territory, which has no legislation on this question), with the former being unlawful in all states. In the case of New South Wales, Queensland, and the ACT, entering into international commercial agreements for surrogacy is also unlawful and is punishable by a heavy fine and/or gaol. The reality is that altruistic surrogacy — commonly defined as those arrangements in which no money but only the baby changes hands — is simply a wing of the main part of the surrogacy industry.

Women are the collateral damage of the surrogacy industry — not only its unintended damage, but its intended and calculated damage. For the industry and what it calls “clients”, the damage done to the woman who fills the role of “surrogate” is considered as entirely proportionate to the “happy ending” — a new healthy baby — that is the selling point of the industry.

Surrogacy is a human rights violation of the woman who is turned into a breeder of the “product”, an embryo manufactured by the IVF industry and grown in her body into a baby which is then removed (mostly by caesarean). Often, she is not allowed to hold her child, whom she is not likely to see ever again.

Surrogacy is also a human rights violation of the child who never consented to be a take-away baby. The practice of surrogacy violates several international conventions. It can be likened to slavery, which Article 1 of the 1926 Slavery Convention defines as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. This is now universally accepted as the base definition of slavery, with the status of jus cogens in international law. The conditions of standard surrogacy contracts leave little doubt as to the status and compulsion of what many buyers refer to as “my surrogate”. Surrogacy also profoundly violates the rights of the child. Article 35 of the Convention on the Rights of the Child requires: “State Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form”.

These important provisions in international conventions are ignored by those who profit from the surrogacy industry. A common defence of the surrogacy industry is that money changes hands, not for the baby, but for the “services” of the “surrogate”. But the industry rests on providing a baby — and a baby of a certain condition — without which payment is unlikely to be made, as heartbreaking stories of the abandoned children of the Ukraine surrogacy industry have made clear. There is simply no way to present surrogacy arrangements as anything other than commodification of the woman who gives birth, and of the child who is paid for. Ukraine has become known in certain circles as the “womb of Europe”. This is itself a euphemism for what are vectors of exploitation of women in poorer countries. The former surrogacy hubs of India, Nepal, and Thailand have taken steps to outlaw international commercial surrogacy, with Ukraine becoming a new centre of the industry as one of the poorer countries of Europe. It is hardly a coincidence that Ukraine has also become a source country for the brothels of western Europe.

Perhaps a majority of women entering surrogacy arrangements in Ukraine do so through the company BioTexCom, although it is difficult to provide an exact estimate given that, even under conditions of legality in Ukraine, a substantial proportion of the industry there operates without even minimal adherence to the law. These problems in Ukraine, and their implications, are acknowledged by apologists of the industry, as well as being evident to most of those who procure a child through such arrangements. For example, Sam Everingham, director of the Australian NGO Growing Families and coordinator of seminars in all capital cities with invited surrogacy proponents from overseas countries, has been reported as stating the following:

“Contracts between surrogacy companies and intended parents basically state, ‘You’re on your own after the birth’. There are some excellent clinics in Ukraine, but because they have smaller marketing departments to BioTexCom, it’s harder for foreign couples to learn about them.”

Everingham said couples often complain that clinics have “lost” their embryos or fail to explain the reasons behind a failed embryo implantation, forcing some to take legal action. In other cases, he added, surrogates who miscarried or had a stillborn birth did not receive any payment. “Some companies have it set up so that they can’t be held responsible for negative outcomes. It’s so important that people educate themselves about the risks.”

It is seldom suggested, except in regard to this industry, that the answer to “negative outcomes” (another euphemism akin to collateral damage) is to “educate yourself”. It is also clear that by “the risks”, Everingham is primarily referring to the risks of non-delivery of a baby in a certain condition. What he fails to mention is that it is precisely in the seminars he offers — including in Australian states where international surrogacy is a criminal act — that potential baby buyers learn about their options from representatives of surrogacy clinics in Ukraine and other poorer countries.

In other words, without the (paid for) “help” from Growing Families, so-called “intended parents” would not have known of, let alone entered into, a surrogacy contract with a clinic in that country. The arrangements endorsed by Everingham have placed in great danger those women who are pregnant with babies for foreign buyers. The arrangements have also placed the buyers themselves in distress: “clients” who fear that their “commissioned product” — the baby — might be no longer on the market. And it is clear that it is this “distress” that endangers the profitability of the surrogacy industry, not the state or status of the women who bear the product.

In the midst of the Russian invasion of Ukraine, the language of surrogacy has been stripped back to the basics: profit and its maximisation. Various reports reveal a common response by the surrogacy industry and its buyers to catastrophe in source countries. For example, after the 2015 earthquake in Nepal (at that time a surrogacy hub), the industry’s customers panicked — not about the people of Nepal, nor the so-called “surrogate”, but about whether “clients” would be able to take possession of “their” babies that they had paid for. Many buyers flew into Nepal to “rescue” their babies. Similarly in Ukraine now, reports of buyers from Argentina, Spain, England, as well as from Australia (among other countries) detail the panic of buyers about taking possession of their child in a war zone on nuclear alert — and their relief when they are able (in some cases) to “get out” with the child, with women left behind and out of concern.

It is at such times that the surrogacy industry comes clean — its language as openly brutal as the practices it mirrors. As Sam Everingham is quoted as saying in a recent report referring to the experiences of a man called Adam and his wife as an example of the Ukraine surrogacy “nightmare”:

Ukraine is also a major provider of donor eggs. While Adam and his wife used their own embryo, many couples fly sperm over to inseminate an egg provided by a Ukrainian donor. “Many people are worried about the safety of their embryos if Kyiv gets bombed”, said Mr Everingham. “Some spend a lot of money on donors over there, they want to make sure those embryos are safe”.

The shamelessness of this language which places value on the safety of monetary investment in embryos without mentioning the women who are treated like objects in the incubation of the embryos is staggering. As a matter of urgency, we need to place the focus of our concern instead on those who bear the costs and pay the price of the entirely foreseeable “nightmare” that is the surrogacy system itself. And rather than following its organisers and propagandists in calling for greater legalisation in order to prevent the industry and its associated practices from going “further underground” (wherever that is), it is time to demand the abolition of the exploitative surrogacy industry with the misery and pain it imposes on poor women in particular.

We need to refuse to treat women as the foreseen and calculated collateral damage of surrogacy arrangements, whether in war or in the time we call peace — before women known as “surrogates” become pregnant and before their babies are born.

Helen Pringle is Associate Professor in the School of Social Sciences at the University of New South Wales.

Dr Renate Klein is a feminist critic of reproductive and genetic engineering, including surrogacy. She has contributed, most recently, to Towards the Abolition of Surrogate Motherhood, edited by Marie-Josèphe Devillers and Ana-Luana Stoicea-Deram.

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