To Know and Be Known: Commercial Surrogacy and the Subordination of Children's Rights to the Desires of Adults

Abstract

When Russia invaded Ukraine in February 2022, hundreds of couples around the world feared for the safety of their children—children they had never met. These couples are the intended parents to unborn children being carried by Ukrainian women in commercial surrogacy contracts. These surrogates are financially compensated for delivering a healthy infant, a job that becomes fraught with decision in the middle of a war zone. Staying put risks the perils of war but relocating to a safer jurisdiction may endanger the legal parenthood of the child. Most neighboring countries do not permit or even recognize surrogacy contracts. An estimated 2,000 babies are born through commercial surrogacy in Ukraine annually, mostly to foreign couples. Ukraine is a popular destination for “surrogacy tourism” because of its cost-effectiveness compared to other jurisdictions and because it is one of the few countries where the intended parents are named on the birth certificate without the need for a court order. The surrogacy industry in Ukraine is booming, with Kiev recognized as the global hub. There are over 50 reproductive clinics in the country, as well as many agencies and untold numbers of middlemen who match intended parents to prospective surrogates. On the surface, surrogacy seems like a win-win scenario for all parties involved. Surrogate women earn passive income, and an infertile couple receives a much-wanted and long-desired child. However, whenever technology advances to allow humanity to circumvent a natural process, bioethical questions need to be raised. This thesis will give a history of surrogacy and the broader world of assisted reproductive technologies (ART). I argue that surrogacy, even altruistic surrogacy, presents ethical dilemmas that ultimately cannot be resolved. To satisfy the advanced writing requirement for my J.D., I examine the comparative surrogacy laws of various jurisdictions to show that this unethical practice is made even more complicated due to a lack of a multi-state convention governing the practice. I conclude by offering recommendations for laws to be adopted in the United States that protect the rights and interests of children.