Citizens’ Right to Parenthood as the Paramount Consideration

The interviews show that the interests of the Israeli intended parents dominate the perceptions of the public and private actors concerned, and that all other interests, including those of the surrogates and the children born through surrogacy, are marginalized. As the interviews revealed, this was true especially in the first few years, when the phenomenon of transnational surrogacy into Israel was just beginning to be felt and its regulation was barely formed. We found that, certainly in the context of the judicial regulatory perspective, and among the private actors involved in shaping the transnational surrogacy contracts, this is still very much the case.

From the outset, there was agreement among the interviewees that the Israeli intended parents are willing to do whatever it takes to become parents and that they largely ignore any other interests. They were described by one agency owner (2)Footnote ⁹ as “crushed, lacking belief … after years of [fertility] treatments” and by the judge as “in very great distress, willing to pay and do anything on earth” to bring a child into the world. Another agency owner (1) observed that the intended parents are willing to even sell their homes, and one of the legal advisors (4) went as far as suggesting that they might turn to illegal child trafficking, as the desire to become parents is so intense.

The extreme pronatalist Israeli culture, documented also by other researchers (see, for example, Birenbaum-Carmeli Reference Birenbaum-Carmeli2016, 16; Yeshua-Katz Reference Yeshua-Katz2017), which helps explain the obsession of the Israeli intended parents with having a child at any price, was also echoed in the world view of two of the most powerful state actors interviewed. According to this world view, Israeli citizens have an undisputed natural right to parenthood, regardless of sexual orientation or marital status, and therefore to the option of crossing the border for surrogacy. One of the legal advisors (4) observed:

Likewise, the judge we interviewed relates to parenthood as a basic right when she explains the judicial motivation to assist in a swift and effective procedure to recognize the parent’s spouse as a second legal parent and, by that, to bring the transnational surrogacy to completion:

Unsurprisingly, the private commercial actors are the most forthright in placing the interests of the intended parents (their paying clients) at the top of the list. Two of them who we interviewed had used transnational surrogacy as intended parents themselves, which had motivated them to open their own business. Their personal experience drove them to look for quicker and cheaper ways to enable people to become parents through transnational surrogacy. As one of them (agency owner 1) explained:

The feminist activist was the only interviewee that doubted the natural right to parenthood, in the name of which intended parents are allowed to shop for surrogacy abroad: “It is the legal arena that signaled to us, as a society, that a right to parenthood exists, this is the whole story. Like, this was one of the problematic sources in my opinion, which turned it into ‘I deserve it,’ ‘I also want,’ ‘I also can.’”

As she identified, the perception of the right to parenthood as almost absolute is prevalent within the judicial decisions over transnational surrogacy that we have studied. Israeli courts have ruled that gay couples are allowed to resort to foreign surrogates (such as in Mamat-Magad v. Ministry of Interior [2014]), though they are not allowed to use the services of Israeli ones, according to the ISL, and they have recognized the right of relatively old intended parents to access foreign surrogacy services (as reported by one of the agency owners (2)), though, again, in this case Israeli surrogacy is prohibited. In fact, the right to parenthood of the Israelis who can afford transnational surrogacy is much broader and easier to fulfill than that of Israelis who turn to Israeli surrogates, as the former are not governed by the much stricter and more limiting regulations governing domestic surrogacy.

In 2014, the Israeli Supreme Court stated:

While the court mentions the duty to guard “other interests worthy of protection,” our study reveals that, ultimately, in all Israeli legal procedures related to transnational surrogacy—even in cases where the legality of the process is questionable—all babies are allowed into Israel, and probably will be allowed in the future. As one of the legal advisors (3) confirms: “In the end, they all enter. Yes. In the end they all enter.”

Interestingly, some of the government legal advisors voiced criticism against the intended parents, in the name of the child’s welfare or the surrogate’s health. One of them (6) expressed concern over the ability to cope of one gay couple who have had seven children through transnational surrogacy with triplets and twins, calling this scenario “unnatural” and “an insane burden” that the Israeli legislature should have prevented. Likewise, another (4) criticized couples who use multiple surrogates implanted with multiple embryos: “And then you find out that simultaneously they had fertilized four [eggs], ‘just in case’ … What is that about? What is this? Cows? Your right isn’t mirrored by any obligation? Your right is absolute?” The criticisms against intended parents who choose to implant multiple embryos in the surrogate’s womb also included the higher risk of premature births in such cases and the economic burden that this places on the Israeli health system.

One could argue that the interests of the intended parents correlate, to some extent, with the best interests of the child. Naturally, in almost every case, the newborn’s best interest is to be recognized as an Israeli citizen and as the intended parent’s child, as soon as possible, so as not to be left stateless and parentless for any length of time. Surprisingly, though, references to the best interests of the child in this context were virtually absent during the interviews, and other interests of the children (for instance, to have access to information regarding their origins) are not part of the regulators’ agenda or of the public discourse in Israel related to surrogacy.Footnote ¹⁰

Following one legal advisor’s (4) criticisms in the interview (noted earlier), we mentioned the minority opinion—supporting the abolishment of commercial surrogacy in Israel—that had been expressed in a public committee report (Mor-Yosef Reference Mor-Yosef2012). She responded thus: “The minute I start, I cannot stop. A right I granted, it is impossible to refute. It might not be expanded, but it is impossible to refute this right.” It appears from this reaction that the legal advisors who constructed the permissive regulation now find themselves trapped and constructed by it.

Furthermore, the feminist activist we interviewed argued that the growing criticism among legal advisors is not motivated, first and foremost, by genuine concern over the surrogates’ or the children’s interests, but rather evolved: “because Israel gained a very bad reputation, very bad. Don’t mind the Occupation [of the Palestinian territories]. The reputation is that Israelis go to places around the world, and rapaciously manage this industry.”

Indeed, two of the legal advisors voiced deep concern over Israel’s interests as a state. One of them (2) explained Israel’s insistence on the free consent of the surrogate thus: “I want everybody to confirm that they consent, so that nobody can say we kidnapped a child. Our fear is that we will be accused of kidnapping children. This is always the fear.” In responding to our question, “So as far as you are concerned, the surrogate is also a source of concern for Israel?” she added:

It is in this context that we should understand the criticism we heard from four out of the six government legal advisors interviewed, regarding the courts, for not assisting them in shaping some limitations around transnational surrogacy, and instead, legitimizing it almost in all circumstances. For example, one advisor (3) described her disappointment with the Supreme Court: “I expected that the Court would express some kind of criticism of Israelis going, acting in another country, without checking the [foreign] legislation [in advance], and then demanding that [Israel] allows them to do so [use surrogacy abroad]. The exact opposite happened; the judges looked at the State Attorneys and asked ‘Why are you making it difficult? And how can you better facilitate it?’” Another advisor (2) stressed:

A third (5) concluded: “It is out of control. We lost control. The judges are completely on board and see these couples and are willing to allow everything.”

In sum, Israeli intended parents, private commercial agencies, judges, and governmental legal advisors position the right to parenthood as an almost absolute right that legitimizes transnational surrogacy, even in circumstances in which it is not allowed in relation to domestic surrogacy, a situation labeled by the second author as “globordered hypocrisy” (Hacker Reference Hacker2017, ch. 4). The parents, agencies, and judges, unlike the governmental legal advisors and the feminist activist, also seem to turn a blind eye to the moral dilemmas and risks involved in transnational surrogacy. As one of the legal advisors (4) commented: “If someone wants a child, there is no traffic light, it is a freeway. Nothing here will surprise me, I already went through all the surprises.” Even among the legal advisors—who became the regulators of transnational surrogacy in the face of the Israeli parliament’s inaction and who gradually became aware of its complexities—a major source of concern is Israel’s reputation as a developed and international law-abiding state, rather than the interests of the surrogates or children born of the surrogacy process.

Indeed, the right to parenthood of Israeli citizens, as well as their interest in an expedient and relatively cheap surrogacy procedure, triumphs over any other consideration, and, as our study reveals, results in 100 percent entry and citizenship approvals for babies born through surrogacy abroad with one Israeli genetic parent. However, as will be explored in the next section, this does not mean there is a lack of awareness of the vulnerabilities of the foreign surrogates. Such awareness has indeed developed among regulators over time. However, as the legal advisors of the government ministries admit, this awareness has yet to evolve into satisfactory and enforceable regulation.

Foreign Surrogates through the Israeli Gaze

The findings corroborate that Israel, as a state, did not plan to become part of the transnational surrogacy phenomenon. Rather, it became involved by default, due to the actions of Israeli citizens who took it upon themselves to start using surrogates abroad, in around 2010, without permission ex ante. The interviewees repeatedly described the intended parents’ actions as challenging the unprepared Israeli authorities with a fait accompli, demanding at the embassy abroad ex post citizenship status and parental recognition for babies already born. As one of the legal advisors (2) noted: “If I recall correctly, I simply received a call from our embassy in India and they said ‘Listen, we don’t know what to do, people are showing up here with preemies [premature babies] … what do we do? They are saying it’s surrogacy ….’ And then we didn’t know what … I mean, it’s like the first time you encounter it.” And another advisor (1) noted: “It reached us while there were already children standing on the doorstep, meaning, we weren’t in some academic debate about how to address the phenomenon. And that’s part of the difficulties in dealing with it, that in the end it’s about children so we have to decide what to do.”

The interviews revealed that, when first faced with these requests, Israeli officials were not aware of the dangers of exploitation of the surrogates. One legal advisor (3), for example, recalled: “I think it started with a big sense of justice. You know, a sense that we are saving babies and bringing them [home] … truly, I say, I remember my first cases.” Awareness of the risks of transnational surrogacy grew, in particular, thanks to the feminist organization Isha L’Isha – Haifa Feminist Center, which organized roundtables and discussions on the issue,Footnote ¹¹ and to the international antitrafficking discourse that was transplanted into Israeli discourse and legislation in the beginning of the third millennium, mainly in relation to prostitution (Hacker Reference Hacker2015). As the advisor to the Minister of Health reflected: “[The state is concerned] also by the rights of the women in Third World countries, this is something that deeply troubles the Ministry of Justice, they have the Human Trafficking Unit.”

The activist we interviewed was able to elaborate more (and more eloquently) than any other interviewee on the subject of the harms of surrogacy to the women involved:

Crucially, hearing the voices of the surrogates (see, for example, Huber et al. Reference Huber, Karandikar and Gezinski2017) and of the feminist advocates in their respective countries led this activist, and others in the field, to stop labeling surrogacy as trafficking and to stop comparing it to prostitution. Indeed, a nonparticipatory observation we conducted during a conference entitled “Surrogacy: Feminist Perspectives,” which took place at the Hebrew University in December 2015 and brought together feminist activists, researchers, and Israeli surrogates, taught us that Israeli feminists have abandoned their previous demand to abolish domestic and transnational surrogacy. They have shifted to a discussion framed around the agency of the surrogate and the security of her health—which, they argue, is conditioned by access to information, by protective regulations, and by the right to maximize her profit (see also Shalev et al. Reference Shalev, Moreno, Eyal, Leibel, Schuz and Eldar-Geva2016; Bassan Reference Bassan2016a).

Even within NGOs representing intended parents, we found an evolving awareness of the vulnerabilities of the foreign surrogates. For example, in a parliamentary debate over a crisis that emerged in 2014 due to Thailand’s new antisurrogacy regulation, the representative of an organization for gay parents said: “We need to find a solution to regulating surrogacy in Israel with equality for men, regardless of their sexual orientation, and we need to regulate surrogacy abroad. Because we also, although not everybody thinks so, are in favor of the woman surrogate [being able to] do it with consent, in a country in which it is regulated, that she will not be poor, that she will have other choices and will want to do it” (The Internal Affairs and Environment Committee, The Israeli Knesset 2014).

Similarly, it appears that Israeli officials have gradually become sensitive to a variety of problematic aspects in this sphere. The judge we interviewed, for example, compared the contracts of domestic Israeli surrogacy to those initiated by Israelis abroad:

Indeed, a contract we were shown by one of the private lawyers (between Israeli intended parents and an Indian surrogate), as a typical example, included articles such as that the surrogate: commits to “make herself available to medical tests and/or check-ups, as and when necessary and advised by the Attending Physician”; “will not terminate the Pregnancy in terms of this Agreement at her will”; “will never claim any right nor make any claim over, and in respect of, the Child”; “will keep secret the contents of this Agreement”; “agrees not to take or keep with her any copy of this Agreement or any medical paper and documents relating to her surrogate motherhood”; and understands that the “Intended Parents shall not bear responsibility for any damage incurred as a result of pregnancy or treatment involved.” While the contract details thirty articles related to the surrogate’s obligations, there are only two related to the intended parents, and nowhere does it state how much the surrogate will be paid or under what circumstances. Although surrogacy contracts from other countries, we observed, were also imbalanced in favor of the intended parents, it seems that the Indian ones were the most extreme in that regard, when compared, for examples, to such contracts in Georgia or the United States.

One of the legal advisors (3) elaborated on the question of surrogacy being perceived as human trafficking:

Another legal advisor (2) also raised the concern of “trafficking in women,” and described her findings from going over contracts from the United States, Georgia, and India for a case she litigated: “It repeats itself, that the surrogate must undergo reduction [selective reduction of a multifetal pregnancy], undergo an amniotic fluid test … she is obliged to abort the fetus in the case of a defect, at the complete discretion of the intended parents.” This legal advisor also criticized various practices including obliging the women to sign contracts written in English, which they cannot read, commuting Indian surrogates to Nepal after India closed its doors to transnational surrogacy, encouraging twin pregnancies “that are not necessarily in the best interest of the mother,” and allowing teenagers to be surrogates.

Even one of the private agency owners (1), who specializes in surrogacy in Asia, admitted that the condition of the surrogates “is not utopian … not rosy.” He mentioned that sometimes the women, who are kept in special “surrogacy hostels” during the pregnancy, want to return home to their husbands and children, but the contract prohibits this. He also told us that, within his agency, the rate of twin births is 30 percent and all of the surrogates undergo a cesarean: “Theoretically they have a choice, but it is not really a choice, because once the doctor tells them that this is what they should do … they will go for it.” This agency owner also contrasted the status of the surrogates in Asia with that of American surrogates, explaining that Israelis who are assisted by a surrogate in Asia have no contact with her, and no relationship is established. In the United States, by contrast, the intended parents are in touch with the surrogate during the pregnancy, and often also after the baby is born. This can be explained not only by technology and culture, as the interviewee suggested, but also by the fact that the American surrogates choose the intended parents and at least to some extent negotiate the contract with them, while the surrogates in Asia often do not know the intended parents before the birth, and do not liaise with them over the contract. That agency owner further admitted: “These contracts [in Asia] are practically there for the legal procedure of the states. It is not really a contract … I mean, the contract is read to them [the surrogates].”

However, unsurprisingly, this agency owner and other interviewees from the private sector sought to minimize the impression of harm caused to the surrogates, by offering an alternative narrative of economic empowerment. He presented what he perceives as the ultimate proof that surrogacy is beneficial to the surrogates: the fact that women who have just completed a surrogacy process in a surrogacy hostel do not wish to return home, but immediately “come and ask to do it again.”

Likewise, among the state actors, it was accepted as fact that the money the surrogate receives “can secure her for a few generations,” as the judge argued, or that it allows surrogates to “buy a house later and their son goes to university,” as one of the legal advisors (6) suggested. Even the feminist activist reported, in all honesty, that her Indian colleagues “did not think that prevention is the goal but regulation, because, they said, there are women for whom it is an economic solution.” However, Bassan (Reference Bassan, Jänterä-Jareborg and Tigroudja2016b: 637) argues: “Although surrogates expect the income to improve their lives, higher education institutions cost almost the same; a house in their district, wedding expenses, and dowry all cost more than the amount that they receive.” As we will claim later in the article, the significance of the financial reward and its value to the surrogate vary remarkably from country to country.

The interviewee taking the most radical stance in terms of playing down the risks and harms to the surrogates and celebrating surrogacy as a win-win-win situation (intended parents–surrogate–private sector) was the agency owner (2), who specializes in surrogacy in Georgia:

He elaborated on his agency’s “different way”:

He also claimed his agency pays the surrogate between 16,000 dollars and 20,000 dollars when a child is born (“understand, this is a ten-year salary”; “with that sum they can build a house”); 8,000 dollars in the case of an early miscarriage (“it is not her fault”); and the full sum in the case of a late abortion demanded by the intended parents due to a detected embryo defect (“so what does she care?”). The agency apparently has a twin-pregnancy rate of just 18 percent and a 20 percent cesarean rate. For this agency owner, treating the surrogate relatively well is not only for “the conscience,” but it is also a business strategy: “They [the surrogates] talk among themselves, and they say ‘look, [name of agency] is a company of human beings.’ It has an impact.”

Indeed, when it comes to surrogates from Georgia and the United States, it seems that the actors in the research field assume that there is no need to be concerned over potential abuse of the surrogate. They assume that, in these countries, unlike in Asia, the surrogates are insured and are paid very generously (see also Markens Reference Markens2012). The Advisor to the Minister of Health, for example, argued that no regulation should be applied to surrogacy performed in the United States and other developed countries. He also stated, in relation to the discussions over the desirable regulation of ova selling and surrogacy: “Every feminist or feminist organization that we sat with dealt only with Nepal, India, and Thailand. We heard no complaints on Mexico. No one dealt with Ukraine, Georgia, Canada, or the US.” Moreover, a few of the interviewees even suggested that, in countries such as the United States and Georgia, the surrogate is the more powerful party, compared to the desperate intended parents, and that regulation is needed to prevent her from exploiting them, and not only the other way around (see also Triger Reference Triger2015; Prosser and Gamble Reference Prosser and Gamble2016). For example, the judge, explaining why she prefers all surrogacy for Israelis to be domestic rather than transnational, argued that:

Interestingly, though, of all the interviewees, the owner of the agency that specializes in surrogacy in Georgia was the most critical of the lack of regulation in relation to the agencies, regardless of the country they operate in. He argued that many in the private sector are “charlatans” who act irresponsibly due to the lack of state supervision, and that, as a minimum, there should be transparency of success and failure rates: “I want the publication of how many coffins returned from Nepal. How many returned with deficiencies? How many births? How many preemies? How many [cases of hospitalization via] intensive care? How many twins?” Clearly, this (unpublished) information is crucial also for the evaluation of the risks to the surrogates.

Although research shows positive findings regarding the surrogate’s well-being in the United States, Canada, and the United Kingdom (Busby and Delaney Reference Busby and Delaney2010), transnational surrogacy presents problematic aspects even for surrogates from the most developed country on the list of Israelis’ surrogacy destinations: the United States. For example, one of the private lawyers interviewed (2) admitted that he and his colleagues try to minimize the bargaining power of the US surrogates: “[In the United States] they have social laws for surrogates and they can demand things. We … anchor it pretty strongly in the agreements in advance … so there will not be demands on … there is a certain limit. So she will not ask for Chinese acupuncture every Monday and Thursday, and a car, and … Because such things have actually happened, and were protected by the law.” But, most importantly, and much to our surprise, we discovered that US surrogates earn less than their Indian counterparts and those in other countries, when payment is analyzed in relative rather than absolute terms (see Table 1).

Table 1: Payment to Surrogates in Absolute and Relative Terms (2016)

^a Data obtained from a contract we analyzed. This data correlates with the average amount said by other scholars to be paid to American surrogates. See Mutcherson (Reference Mutcherson2018, 157), indicating the range of 25,000 dollars to 45,000 dollars.

^b Data obtained from a contract we analyzed. According to commercial Web sites, the surrogate’s compensation is much higher. Needless to say, higher compensation strengthens our argument. See, for example, https://www.fertility-miracles.com/Surrogates/benefits.html and https://southernsurrogacy.com/surrogates/financial-benefits.

^c Data obtained from interviewees. These data correlate with other sources (Niezna Reference Niezna2012). However, the exact amounts are unclear and probably vary from case to case. See Voigt, Kapur, and Cook (Reference Voigt, Kapur and Cook2013).

^d Real per Capita Income for Texas 2016 ($28,714) and for the United States in general ($31,128). https://www.deptofnumbers.com/income/texas (original source: US Bureau of Census).

^e National Statistics Office of Georgia. “Households Income.” http://www.geostat.ge/index.php?action=page&p_id=182&lang=eng (1 USD = 2.613 GEL).

^f https://tradingeconomics.com/india/gdp-per-capita.

^g The minimum wage in Texas is US$7.25 per hour (see https://www.minimum-wage.org/texas). Calculation based on $7.25 hourly wage x 8 hours per day x 5 days per week x 52 weeks.

^h The monthly minimum wage for public sector employees has been approximately $48 since 2015. The minimum wage for private sector employees was GEL20 ($8) per month but was not applied in practice (see https://www.minimum-wage.org/international/georgia). Calculation based on $52 x 12 months.

ⁱ Federal law sets health and safety standards, but state laws set minimum wages, hours of work, and health and safety standards. The daily minimum wage (with local cost of living allowance included) varies from 197 rupees ($2.89) in Bihar to 447 rupees ($6.57) in Delhi. State governments set a separate minimum wage for agricultural workers: https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2016&dlid=265536#wrapper. Based on a $6.57 daily wage x 5 days per week x 52 weeks = $1,708.20.

^j All data retrieved from the World Economic Forum: “Global Gender Gap Index 2016.” http://reports.weforum.org/global-gender-gap-report-2016/rankings.

^k Data retrieved from the World Bank, “Unemployment, Female (% of Female Labor Force).” https://data.worldbank.org/indicator/SL.UEM.TOTL.FE.ZS.

The perception that, in the United States, the surrogate is paid “more money, much more money” than in other countries, as one of the legal advisors (2) claimed, is based on the fact that US surrogates are paid, per single pregnancy, more than twice the amount a Georgian surrogate is paid, and almost five times what an Indian surrogate received when India was still open to transnational surrogacy. Yet, in real terms, a US surrogate receives much less than surrogates in these two countries (especially compared to Georgia), when the average and minimum salary and purchasing power in each country are taken into account. Hence, while in countries such as India, and especially Georgia, surrogacy can constitute a dramatic economic opportunity that is unlikely to arise in any other way (Choudhury Reference Choudhury2015), in the United States it is a relatively minor economic event. These counterintuitive findings highlight how problematic it is to treat surrogacy in the United States as if it were in no need of any kind of transnational regulation, since, unlike surrogates in developing countries, US surrogates are supposedly not vulnerable at all—as was suggested, for example, by the Advisor to the Israeli Health Minister. Of particular interest are the conditions in the surrogacy contract, offering low compensation for different procedures (such as surgeries) and losses caused by pregnancy and delivery to the surrogate.Footnote ¹²

While our analysis points to differences in the kinds of potential abuse that surrogates in developed countries face, compared to developing ones, the guidelines regulating transnational surrogacy of Israelis, formulated by the legal advisors interviewed, do not differentiate between countries. Moreover, their drafting was triggered by the abusive elements of surrogacy in Asia, as well as evidence of illegalities taking place in Asian countries (such as forgery of identification documents and signatures). The legal advisors have attempted to address the latter concern by securing the surrogate’s informed consent to deliver the baby to the Israeli intended parents, through an affidavit signed by the surrogate, in person, at the consulate, after she has identified herself by providing two identity documents (the requirement to be identified by two documents was imposed in 2014). One of the advisors (3) explained, in relation to the guidelines she and her colleagues developed: “I think that, for us, as [we] are a long way away and [we] try the most to make sure that this procedure is done according to some standards that we can live with, these demands are minimal demands. To see the surrogate at the consulate is not a small thing. I mean, to see that she comes, to see that no one is putting any pressure on her; that no one comes with her, pushes her to sign a document she does not understand.”

Hence, the guidelines are targeting only the end of the surrogacy process, to secure the safe departure of the child to Israel, with no future claims of child trafficking on the part of the surrogate or the host country. Although the guidelines demand that the intended parent displays the surrogacy contract at the consulate, no substantial demand (such as reviewing the content of the contract) is made. The guidelines do not address the need for informed consent before embryo transplant, or the terms of the contract, including the sums to be paid in different circumstances and the right to privacy and medical autonomy of the surrogate.

Notwithstanding, the legal advisors reported that their ongoing involvement also began to have the effect of “soft law,” in the sense of affecting the conduct of the agencies. For example, in the beginning, contracts in India were signed by the surrogate only after she became pregnant, but later on they were signed beforehand, although this is not specifically mentioned in the guidelines. Still, the legal advisors are well aware that the guidelines and evolving additional effects are still far from securing the surrogate’s rights and interests. As the aforementioned advisor (3) observed:

In an attempt to work toward broader—and international—regulation, the state of Israel was among the first to approach the Hague Conference on Private International Law (HCCH), calling for an international convention on surrogacy (Hacker Reference Hacker2017, 145). The legal advisors we interviewed expressed disappointment at the international community for failing to draft such a convention and to regulate surrogacy on a global scale, as it had done in the case of intercountry adoption. Next, the advisors had pushed for a national law that would regulate transnational surrogacy performed by Israelis. The resulting proposal was drafted by the Ministry of Health in 2014. The section on transnational surrogacy includes, among other provisions: supervision of the commercial agencies or the authorization of contracts with a surrogate without the mediation of an agency, subject to approval of the surrogacy agreement by a special committee; a guaranteed payment to the surrogate, even when the process does not culminate in a live birth; a demand that the agreement will be explained to the surrogate; and conditions that aim to ensure the surrogate’s free choice, privacy, and human dignity. In the case of these provisions not being fulfilled, the proposal includes sanctions of one year’s imprisonment in the case of an individual and a fine of about 10,000 dollars in the case of a company, albeit no civil sanctions, such as not allowing the child into Israel. The Advisor to the Health Minister explained that a no-entry sanction was included in the law proposal by the Ministry of Justice, but was later removed due to the Ministry of Health’s pressure in the name of the child’s best interests not to be left behind, parentless and stateless.

Ultimately, this law proposal was not given parliamentary approval, due to unexpected elections that resulted in a new government. The ultra-orthodox Health Minister, Yaakov Litzman, was not in favor of promoting it, mainly due to the section that permits domestic surrogacy among single individuals (which might be interpreted as also including gay couples). Moreover, while the legal advisor to the former Health Minister was very proud of how the proposed law sought to safeguard the surrogate’s interests (“if you read it, not one single detail is missing”), one of the other advisors interviewed (1) was more skeptical: “Your ability to control what happens in a foreign country [where the surrogacy takes place] and to ensure [compliance] via remote control is very limited. At the end of the day, we’re trying to do it through the law proposal, but it’s still a very limited, long-distance control.”

Finally, it is important to stress that the surrogates’ voices are not heard within the Israeli regulative field. First, the interviewees were not aware of any legal suit against Israel, an Israeli agency, or Israeli intended parents brought by a foreign surrogate, either in Israel or in her home country. It appears that litigation, which could have provided a channel to express the surrogates’ grievances, is simply not used, either because they do not have such grievances, or because the contract blocks them from suing, or because they cannot afford the costs involved. Second, the interviewees revealed that there had been no active attempt on the part of any of the relevant Israeli ministries to communicate with foreign surrogates or to learn directly from them about their experiences and needs. Third, it would appear that the interviewees have not read the studies that include surrogates’ narratives, particularly from India (see, for example, Pande Reference Pande2014; Rudrappa Reference Rudrappa2015).

But while Israel has not sought or received any feedback from surrogates, it is currently facing a harsh backlash from most of their home countries. Since 2012, India, Thailand, and Nepal have closed their doors to transnational surrogacy. Attempts to turn to Mexico failed, as it was also quick to prohibit this option. The Israelis were caught by surprise, and even refused, initially, to accept the new reality, causing diplomatic commotions. As one of the interviewees (who asked to remain anonymous on this point) detailed: “There are agencies here that promise the moon and the stars. They didn’t check the legal situation [abroad]. They didn’t check what is happening there. Come on, go ahead, give me [the money] … I’ll do it [secure a baby] for you. They gain the whole bonanza. And then bang! The gates close; bang! You can’t take the child out.”

Further study is needed to understand the forces that successfully challenged global hypercapitalism and reduced the scope of transnational surrogacy in countries that profited from it quite substantially. Whether there was a wish to end surrogates’ exploitation, as one of the legal advisors interviewed (6) implied, or a reaction to damaged national pride and a refusal to supply “spare parts to the Western world,” as another (4) argued, is yet to be explored. Or it may have been a result of several high-profile scandals related to pedophilia and disabled babies deserted by the intended parents (Fellowes Reference Fellowes2017: 254), or a mixture of such motives, along similar lines to those that caused the drastic decline in transnational adoption (Hacker Reference Hacker2017, ch. 6). What is certain is that, while Israel—and the international community—failed in securing the rights and interests of foreign surrogates, those who live in developing countries are increasingly protected from transnational surrogacy due to its prohibition, for better or for worse.Footnote ¹³ Surrogates living in the United States, Georgia, Ukraine (Mohapatra Reference Mohapatra2012; Kirshner Reference Kirshner2015), and Greece (Chortara et al. Reference Chortara, Penasa and Busatta2016), on the other hand, are still part of a very lightly regulated transnational arena.

International Law

The most commonly suggested solution to transnational surrogacy is to regulate it by means of an international treaty to enforce certain standards on the ratifying countries. As we saw in the Findings part of this article, the state of Israel was among the first to actively call for the drafting of such a treaty. One of the related avenues proposed is to adapt the existing 1993 Hague Convention on intercountry adoption (Thomale Reference Thomale2017). Some are calling for the adoption of a private international law instrument designed specifically for the surrogacy context. Margalit (Reference Margalit2016) proposes that a treaty be drafted to ensure: that the intended parents are suitable, to protect the best interests of the child; that parentage is determined before the birth so that the child does not remain stateless (among other reasons); and that the surrogate mother is suitable and her welfare and autonomy in the surrogacy process are protected. Moreover, argues Margalit, such a treaty should establish some kind of authority to facilitate an information-sharing mechanism between different countries and agencies.

However, efforts to reach a consensual treaty have, so far, proven futile. In 2001, the HCCH attempted to tackle transnational surrogacy. But it was not until 2012 that a Preliminary Report to the Member States was submitted, followed by a council instruction to circulate a questionnaire to determine the issues that should be addressed and current state policies regarding surrogacy and filiation. In 2014, following the presentation of the status reports, the council decided to consider establishing a working group on the topic, which has not concluded its work due to a lack of consensus. Not only has a treaty not materialized, but, reading the conclusions of the Experts’ Group of the HCCH and its recommendations, “The Parentage/Surrogacy Project 2017” (Hague Conference on Private International Law 2017), it appears that there has been little focus on the status and needs of the surrogates.

The European Union (EU) has also considered several options for regulating transnational surrogacy—either by adapting the existing 1993 Hague Convention on intercountry adoption; by drafting a new treaty on the subject; or by relying on “soft law” instruments and support action at the national level (Rigon and Céline Reference Rigon and Céline2016). Very much like the HCCH, the EU Parliament briefing is focused on the children: their legal parenthood; their entitlement to leave the country of origin; and their entitlement to reside permanently in the receiving country. The surrogates’ interests are mentioned only in passing.

It is not surprising that efforts to articulate an international treaty have not been fruitful. As Bassan argues, drafting universal rules is difficult due to the disparity between states. While some condemn the practice of surrogacy, others are willing to accept it. Even between states that accept it, a debate is expected regarding the desirable content of this international regulation, as “issues of reproduction, family and parenthood” are “personal, social and cultural issues and thus vary widely from state to state” (Bassan Reference Bassan2016a: 303; see also Ergas Reference Ergas2013). However, we believe that some of this failure can be attributed to the fact that the suggested drafts are not focused on the surrogates and do not address the gap between the attitudes of local systems (which sometimes forbid surrogacy altogether) and the permissive (even if restrictive) position of a planned future treaty. Further, we contend that it is feasible to create an international regulative scheme that bridges, or at least reduces, this gap.

Attempted Prohibition of Transnational Surrogacy by the Intended Parents’ Country of Origin

Countries that strongly oppose surrogacy may try to enforce prohibition of both domestic and transnational arrangements. One example of this stance is France, which decided in 1994 to prohibit its citizens from entering into surrogacy agreements (French Civil Code 1994, article 16–7). While no sanction was applied, any surrogacy agreement contracted domestically or transnationally despite the prohibition was not enforceable, and the intended parents were not allowed to be recognized as formal legal parents by France, or to adopt the child that was born as a result. However, this stance was challenged before the European Court of Human Rights (ECHR) in the Mennesson case (Mennesson v. France, App. No. 65192/11, Eur. Ct. H.R. [June 26, 2014]). As a result, in 2015, the French Cour de Cassation (Judgment No. 619 of July 3, 2015 (14–21.323), Court of Cassation) allowed for the first time the transcription of a foreign birth certificate of a child born through surrogacy abroad. Additional decisions taken by the Cour de Cassation paved the way for the father’s partner (male or female) to adopt the child (Judgment No. 620 of July 3, 2015 (15–50.002), Court of Cassation).

Hence, France was forced by the ECHR to loosen its rules to protect the child. By doing so, the ban on international surrogacy—designed by France—collapsed, as the main incentive not to go into surrogacy was removed. The ECHR decisions in the French case naturally have an effect on other European systems. Several countries that oppose or strictly prohibit the practice, such as Germany (which even has a criminal sanction against it), are nonetheless creating mechanisms to protect children born this way transnationally (Voskoboynik Reference Voskoboynik2016).

Even without international or regional interventions, systems that decided to ban their citizens from entering into surrogacy agreements abroad find themselves in a complicated situation when a child is born despite the prohibition and the parent asks to enter the country with him/her. An enforceable prohibition means leaving the child parentless and nationless or taking the infant from the intended parents and placing him/her for adoption—a heavy price indeed. Even the criminal option is probably ineffective, as can be inferred from the Australian example: while several Australian jurisdictions have criminalized extraterritorial commercial surrogacy, they do not enforce it (Johnson et al. Reference Johnson, Blyth and Hammarberg2014). Sending the intended parents to jail is surely harmful to the child born through the illegal surrogacy as it places his/her future on an even more vulnerable and potentially chaotic path.

While the children are better protected by the current inability of the countries of intended parents to prohibit surrogacy, the foreign surrogates find themselves with no safeguards aimed at protecting their interests, due to the regulative lacuna.

Regulating Transnational Surrogacy via the Legal System of the Intended Parents’ Country of Origin

A more original solution, not yet applied but gaining popularity within the literature, places the responsibility to protect the foreign surrogate on the countries that allow their citizens to shop for transnational surrogacy. Though he does not deal with surrogacy directly, Benvenisti’s theoretical and normative framework entitled “Sovereigns as Trustees of Humanity” can serve as the infrastructure supporting this solution. Benvenisti claims that, in a global world, states should (and already do, to some extent) “assume certain underlying obligations toward strangers situated beyond national boundaries” (Benvenisti Reference Benvenisti2013: 297) and that they are “obligated to take other-regarding considerations seriously into account in formulating and implementing policies, even absent specific treaty obligations” (300). According to his argument, courts are among the institutions with a responsibility to “adapt the law to the demands of global welfare” (328). We would argue that Benvenisti’s claim regarding “strangers situated beyond national boundaries” is even more valid (on a theoretical level) regarding surrogates, who are connected—in a very concrete way—to the intended parents and thus to the latter’s countries of origin. Hence, we contend, they should not be regarded as “strangers.”

Although we believe that transnational responsibility is a desirable goal, our research shows that, currently, it might not be a realistic one. The Israeli example we detailed earlier demonstrates the centrality of the intended parents’ interests within the regulative scheme in their country of origin. The ultimate goal of the Israeli policy makers is to ensure that the intended parents fulfill their desire to become parents. With the exception of Israel’s diplomatic interests, little attention is paid to other stakeholders and their rights and interests. Even when policy makers become more aware of the particular vulnerabilities of the foreign surrogates, it has not led to effective protective measures. The political interests behind leaving a legislative vacuum to satisfy citizens’ demands for transnational surrogacy, courts’ tendency to assist their citizens and the babies already born, and the geocultural distance between Israel and the countries in which the surrogacy is actually taking place are all contributing to the abandonment of a serious attempt to protect the foreign surrogates from abuse.

To the best of our knowledge, there is not even one country that regulates by legislation its citizens’ involvement in surrogacy abroad, let alone by guaranteeing the foreign surrogates’ rights. Although there are no studies parallel to ours, dealing with the points of view of policy makers, including on the administrative level, in other countries, it seems reasonable to assume that the Israeli case study is not unique in the difficulties it highlights in guaranteeing the surrogates’ interests. A study from Sweden (the only one we were able to identify in this context) reinforces this assumption. Arvidsson et al. (Reference Arvidsson, Johnsdotter, Emmelin and Essén2018) found that, while Sweden bans surrogacy, its social workers are nevertheless faced with Swedish intended parents’ applications to legalize the status of children born through transnational surrogacy. In many cases, these social workers give up their moral beliefs against surrogacy, put aside their concerns regarding the foreign surrogates’ interests and rights, and recommend the children be granted full legal status by the court. If a system like Sweden, which opposes surrogacy, cannot effectively protect overseas surrogates, then those more tolerant toward this practice will be all the more unlikely to do so.

Even Bassan (Reference Bassan2016a), who developed the idea that the countries of the intended parents bear responsibility toward the foreign surrogates, acknowledges that the Israeli case proves that these countries cannot deal with the protection of the surrogates on their own. According to her analysis (which focuses on the legislative level), as indicated by the Israeli proposed law that was ultimately not enacted, even the most well-intended legislature cannot protect the surrogates fully (341–43).

Regulating Transnational Surrogacy via the Legal Systems of the Countries in Which the Surrogacy Is Taking Place

Theoretically, each and every country is ideally placed to create the proper regulation for its own surrogates. The cultural characteristics and unique values of each society provide the most suitable setting for shaping the right regulation: to decide whether to ban surrogacy or to facilitate it; to restrict it only to its citizens or to open it to foreigners; and, if it is permitted, under what conditions and limitations.

As we saw during our research, several countries that were dominant in the transnational surrogacy market—first and foremost India—have decided to restrict commercial surrogacy. Closing the markets can be seen as a desired outcome, especially for those who view surrogacy as the ultimate evil (Raymond Reference Raymond1989; Anderson Reference Anderson1990). However, in view of its potential economic advantages for surrogates and their families, we contend that a more nuanced legal stance may ultimately prove more beneficial. Especially in the less developed countries in which the payment to the surrogate is substantial and most likely cannot be achieved by these women in any other legal way (Pande Reference Pande2010: 974), it might be preferable to enable (regulated) surrogacy rather than ban it altogether.

In any event, the thriving markets for surrogacy that are still operating (and others that will probably open in the future) are not regulated effectively, or they are not regulated at all by the home countries of the surrogates. The United States, which takes a central role in this global market, regulates it state-by-state. Legal approaches to surrogacy vary widely between states: some ban it completely, while others impose very few limitations, including allowing surrogacy for foreigners (see Storrow Reference Storrow, Gerber and O’Byrne2015; Maine Parentage Act, title 19-A, § 1931; 750 ILCS 47/25, § 25; California Family Code § 7962). All in all, “surrogacy [in the United States] remains largely unregulated” (Berk Reference Berk2015: 146) and the legal protections for the surrogate are not yet developed (Beir Reference Beir2018). Ukraine and Georgia are currently allowing transnational commercial surrogacy explicitly, regulating it only at a minimal level and imposing no requirements designed to protect the surrogates (Kariauli Reference Kariauli2016; Khurtsidze Reference Khurtsidze2016; Allan Reference Allan and Miranda2017).

The concern for surrogates’ well-being becomes more pressing when women’s rights and equality in a given country are tenuous or lacking altogether (Tang Reference Tang2016: 201–02). As in other spheres of life, these women—as others have learned from the Indian case—may find themselves subject to male control, whether by their husbands (Choudhury Reference Choudhury2015: 31–32) or the men who run the industry (Rimm Reference Rimm2009; Saxena et al. Reference Saxena, Mishra and Malik2012). Thus, if we want to assure the surrogates’ interests and rights, we should not leave it only to their homeland legal systems.

Market Regulation

Some scholars argue that surrogacy does not need special regulation. Modern contract law, Margalit (Reference Margalit2014) asserts, is well equipped to deal with the unique problems of surrogacy. But, as Margalit himself claims in a later article (2016), the free market with its contract law is less adequate in the case of transnational surrogacy, especially for arrangements involving surrogates from poor countries.

As mentioned earlier, we were able to interview some of the most prominent private sector actors: two who run large surrogacy agencies, and two private lawyers professionally involved in the field. We found, as others did (Berk Reference Berk2015), that the private sector does not—and probably cannot—assure the surrogates’ interests either. The surrogates suffer from structural weakness dictated by their lower class and wealth inferiority, at its most extreme in less developed countries (Rimm Reference Rimm2009). Moreover, the surplus in the “supply” of surrogates in Asia (Tang Reference Tang2016) and probably also in Eastern Europe contributes to women’s weak position and inability to satisfyingly take care of their interests through private negotiation with the intended parents and their representatives (Choudhury Reference Choudhury2015). Even in the case of Western surrogates, as we found both from our research and from other studies (Berk Reference Berk2015), agencies and lawyers articulate the contracts in a way that extensively limits the rights of the surrogates. Their free choice, freedom of movement, and bodily integrity are all restricted during the process. Moreover, as shown in Table 1, surrogates in the Global North receive even less monetary compensation, in relative terms, than surrogates in the Global South.

Although the industry itself has some intrinsic motivation to protect the well-being or at least the satisfaction of the surrogates (so that it may continue to operate unhindered), the main focus of the private actors, almost by definition, is their own profit (Rimm Reference Rimm2009) and the interests of their paying clients—the intended parents.