I tweeted recently about an article by Tamar Lewin in The New York Times, “A Surrogacy Agency That Delivered Heartache,” which looked at the disreputable business practices of a “medical tourism company.” The title of this post, (Infertility + Lack of Regulation) x Capitalism = Surrogacy Tourism, was meant to be a little snarky, but it also has deeper meaning. A lack of comprehensive and clear federal regulation of reproductive medicine here in the United States, as well as spotty coverage by insurance companies, impels American patients to look abroad for other options. While the practice is more common for people seeking cosmetic surgery, clinics are beginning to tap into the demand for assisted reproductive technology (ART).
There are different types of ART, but some of that demand is for gestational surrogacy: “The practice of paying a woman to have an embryo transferred to her womb and bear the child for someone else” (Lewin). Couples or individuals work with clinics to procure a surrogate in other countries; Mexico, Thailand, and India are common destinations.
But a lack of regulatory oversight in those countries, as well as the absence of international law regarding medical tourism, can lead to complicated cases. In the cases that Lewin reviews, people have paid money for a gestational surrogate, but the contract is not honored and no child is delivered. Or, in another recent case, an Australian couple has abandoned a child who was born with Down syndrome and a congenital heart condition with his Thai surrogate, even though they took his (apparently) healthy twin sister home with them. These cases reveal how the affected parties have little legal recourse, especially the child who ends up being regarded as a “product” of the transaction instead of a human being with rights.