The human tragedy associated with the war in Ukraine hasn’t shown any signs of relenting. It includes not only the massive displacement of civilians, but also some “collateral damage” to the country’s lucrative surrogacy business. According to the UN High Commissioner for Refugees, out of a population of 45 million, 7 million civilians are estimated to have left their homes, and another 6 million to have left the country. Among all these tragic displacements are women who have signed contracts with surrogacy agencies. Some have recently arrived in France in order to “finish off their surrogacy contract “. Despite the fact that surrogacy is prohibited in France, French sponsors bypass the law once the surrogate mother arrives by having her give birth anonymously, with an X or a blank left in the place for recording the name of their biological mother. The claim for the adoption of the child has already been prearranged by the man providing his gametes for conception and recognized as the biological father. His spouse will later file for full adoption of the child, in order to be declared as the child’s “mother”.
Globalizing the Least Ethical Scenario
To deal with these painful situations which affect both the surrogate mother and the baby, some are arguing in favor of legalization, or “supervision”. They maintain that practices which are legal in one country always end up being exported elsewhere, just as for illegal products. Some jurists are thus arguing that in this current era of globalization, it is futile to defend bans against illegal products and services. A rather strange argument, for many reasons. Does this surprising assertion indicate that the promise of “happy globalization” for this millennium is starting to crumble? Are many starting to feel somewhat disillusioned by the ecological and social outlays? Even worse is the mere use of the term “globalizing surrogacy” because it means acknowledging the business nature of this practice, in an emotionless manner. Is it ethical for the business vocabulary used for products to be attributed to human beings: globalization, division of labor, cross-border trade? Beyond the widespread media attention given to these cases, there is a deeper and more sordid reality. According to one of its promoters, “surrogacy must necessarily be a business, otherwise it wouldn’t exist“. But is all “business” really inevitable?
Supervision: Disguising Predictable Developments with Pragmatism
Calling for practices to be supervised is a well-oiled mechanism. An exception is used to justify the rule, and in the end the rule becomes an exception. A recent op-ed asserted that prohibitions lead to underground channels, and even trafficking. This line of reasoning is obviously flawed and cannot be applied to all kinds of activities nor to the economy. As seen in many ad hoc arguments, factual observations are alluring. Unfortunately, prohibiting human trafficking, or child labor, cannot not prevent its existence. But it this a reason to give up the idea of a ban ? Concerning surrogacy cases, some contend that the surrogate mother has given her legal consent. Even so, it is important to understand the underlying circumstances for giving that consent.
Surrogacy Produced by a State of Necessity
The lawyers defending the few Ukrainian women giving birth in France invoked “the state of necessity” to justify circumventing French law. Admittedly, war does cause unforeseen and painful upheavals. It does lead to real dangers and imminent threats where people require protection, especially civilians. But this state of necessity resulting from the war should not conceal the original cause for resorting to surrogacy , namely the state of necessity of poor women who resort to this practice in order to survive. In Ukraine, this has already been amply demonstrated. In some cases, a surrogate mother may receive the equivalent of 5 years of salary. Thus, the genuine “state of necessity” to be considered is the social injustice that pushes a woman to sign a contract to lease her body.
An Insecure Red Line?
The French Minister for Justice, Eric Moretti had asserted that “surrogacy is a red line that we absolutely do not wish to cross”. However, some decisions are nibbling away at this red line to the point where there may no longer be any need to cross it. These include allowing surrogacy to take place in a country where it is unlawful, accepting that the practice is advertised, and not combatting it on an international front. War is indeed an undertaking that causes irreplaceable damages. So is surrogacy. It is more than urgent to create an international ban on surrogacy and human trafficking.
For further information : [Video Replay] – Webinar “The reality of surrogacy” – Alliance VITA