“Pandemic Disruptions” in Surrogacy Arrangements in Germany, U.S.A., and India during COVID-19

By Anika König, Heather Jacobson, and Anindita Majumdar

Gestational surrogacy is a medically assisted reproductive technology (ART) in which a woman carries a child for others and hands it over to them after birth. This ART is marketed as a service to those experiencing a “reproductive disruption” on their journey to parenthood due to infertility or the inability to become pregnant or sustain a pregnancy to live birth. Legal regulation of surrogacy greatly differs between countries. Some, like Germany, strictly prohibit it, while others, such as Ukraine, do not regulate it at all. Still others, such as the United States (and, in an increasingly restricted way, India) allow for and facilitate it.  Despite these legal variations, over the past several decades, the global surrogacy industry, which is heterogeneous, flexible, and adaptive to change, has become somewhat institutionalized, with practices and bureaucratic procedures established to facilitate the transfer of children.

For many “intended parents” (IPs) and surrogates, travel is an essential and expected component of their surrogacy arrangements. During the COVID-19 pandemic, however, travel has been severely restricted. Even despite challenges to parents’ mobility, children were (and continue to be) born via surrogacy — resulting in the dilemma of intended parents being unable to retrieve their newborns to bring them home. This presents a significant disturbance not only to individual lives and parent-child relationships but also to the global surrogacy industry.

In this essay, we focus on three spaces of reproductive disruption within surrogacy: the U.S., Germany, and India. In the last several decades, the U.S. surrogacy market has attracted a diverse population of international intended parents. The United States boasts a robust ART industry, uniquely providing all available procedures to client/patients of every sexual orientation, age, and marital status. While ARTs in the U.S. come at considerable cost and U.S. residents who cannot afford these technologies (including surrogacy) at home sometimes travel to other countries to do so, the U.S. performs the second highest number of ART cycles annually in the world. At the other end of the spectrum, Germany strictly prohibits surrogacy, which means that for German IPs, ART necessarily involves crossing borders in order to circumvent national laws. Until 2015, India was the most important “low-cost” surrogacy market worldwide. However, pending legislation bans commercial surrogacy in favor of “altruism” (and only amongst Indians with kin volunteering to surrogate), leading to a significant decline in foreign clientele, and resulting in the curtailment of the once thriving transnational surrogacy industry.

Prior to the COVID-19 pandemic, the U.S. was highly popular with wealthy international intended parents due to a “surrogacy culture” that promised to be more ethical than in other, low-cost countries, and to the availability of a wide variety of ART services to those able to afford the high price-tag. The United States also promised smoother bureaucratic processes for those seeking to obtain U.S. citizenship for their newborns and, unlike virtually all other markets, allows for gay intended parents. However, at the beginning of March 2020, newspapers began to report on international intended parents who were unable to travel into the U.S. to collect their children born via surrogacy to bring them home. While in other surrogacy locations, like Ukraine or India, infants whose parents were unable to reach them were reportedly cared for by agency and clinic staff or hired caregivers, in the U.S., reports surfaced of surrogates or former surrogates assuming this care. One U.S. surrogacy agency senior partner said, “We have an army of former surrogates who are ready and eager to act as helpers and guardians for as long as necessary.” This arrangement of current and former surrogates continuing postnatal care, while highly unusual, is coherent with the culture of U.S. surrogacy, which is predominantly based on an “open” model in which surrogates and parents often have ongoing direct contact. Contact is frequently facilitated through the shared use of the English language, and what might be called assumed cultural proximity between international intended parents and U.S. surrogates. In this context, intended parents and surrogates are encouraged to—and often do—create meaningful relationships with each other, at least during their journeys and frequently afterwards. However, this approach also leads to the creation of more expectations for surrogates, especially in a situation of crisis like the COVID-19 pandemic, when intended parents were unable to travel to the U.S. to be united with their children. Here, surrogates became the most obvious choice as temporary caretakers.

While U.S. surrogates are helping to assume care of “surro-babies,” across the Atlantic in Germany, intended parents sit and wait for permission to travel, hoping to reach their newborn children. Two countries are currently the most important destinations for German surrogacy travelers: the U.S. and Ukraine. The former caters to comparably wealthy clients (each surrogacy costs upwards of US$150,000), while the latter can be understood as a “low-cost destination” (approximately US$57,000 per surrogacy). In addition to lower costs, one of the reasons why German intended parents choose surrogacy in Ukraine is geographic proximity. In terms of distance, travel to the U.S. requires a long-haul air journey, whereas Ukraine can be reached within two hours by plane or two days by train, bus, or car. In light of COVID-19 travel restrictions, German IPs interviewed on their experiences by AK shared that they were glad they had chosen Ukraine and not the U.S. because their surrogacy agencies promised to help them apply for transit permits, thereby enabling them to pick up their children by car if there were no flights. In contrast, during the pandemic, the U.S. only permitted U.S. citizens and residents to enter the country. Accordingly, there was no chance for German intended parents to reach their newborns in the U.S. Thus, for German IPs, the surrogacy “journey” always entails the physical overcoming of geographical distance—a fragile aspect of this ART that is prone to disruption, as the COVID-19 pandemic has shown.

Within India, even as surrogacy arrangements are now largely limited to domestic intended parents, the wait for a child does not subside for intended parents. Infertility management is a largely privatized medical practice in India, and statistics regarding the scope and size of IVF are unavailable, or misleading. So-called “IVF-Surrogacy” led to the proliferation and popularity of infertility technology in India, creating a lucrative enterprise. For a long time, IVF specialists have claimed rights to the babies born via commercial surrogacy, vesting these physicians with “god-like” status. Now, due to the pandemic, stranded newborns pose a crisis of credibility. In the context of a nationwide COVID-19 lockdown, intended parents unable to travel to reach their newborns increasingly began to depend on private IVF clinics to take on the responsibility of caring for their newborns. Dr. Nayna Patel of the  Akanksha Clinic in Anand, Gujarat, is quoted as highlighting the double-duty required of clinicians as they must care for both stranded newborns and their anxious parents. This care becomes “exclusive,” repositioning the clinician as the primary “savior,” often excluding the surrogate who birthed the child, which is contrary to the situation in the U.S., where surrogates became “essential” caretakers.

In transnational imaginings regarding surrogacy, mobility challenges become marked as a new form of disruption through the conflict between waiting, being stuck, and providing care. This further exacerbates the reproductive disruptions experienced by intended parents, which they had to overcome in their initial recourse to ART and now experience again in their anxious wait to be united with their newborns. This disruption also extends to new dilemmas of infant care needs, which clinics and surrogates navigate. Clinics scramble to find appropriate caregivers for newborns and to reassure clients, while U.S. and Indian surrogates are robbed of essential rites of passage held by many surrogates in the arrangement: having IPs witness the birth and handing over the child to them (U.S.); or being recognized for their labor (India). For most intended parents, their “long wait” for parenthood is extended by these disruptions, and remote viewings through digital interactions (which clinics—in Ukraine and India—and surrogates—in the U.S.—are offering) cannot fulfil the desire to hold their child. It remains to be seen how the global surrogacy industry, currently in limbo, will develop in the aftermath of the COVID-19 pandemic and what the effects will be for the clinics, surrogates, intended parents, and children. The lack of interface between IPs and surrogates may become more exacerbated without contact, raising various concerns, including surrogates or other caregivers developing bonds with the babies. The practice of “outsourcing surrogacy” may begin to follow a template of social distancing globally.

Anika König is a senior lecturer at the Department of Social and Cultural Anthropology at University of Lucerne, Switzerland. Her research focuses on reproductive health, especially medically assisted reproductive technologies (such as surrogacy) and prenatal genetic testing. She has also extensively worked on large-scale violence in West Kalimantan, Indonesia.

Heather Jacobson is Professor of Sociology at the University of Texas at Arlington where she directs the Master’s in Sociology program. Her research centers primarily on various routes to family formation in the contemporary United States. She is the author of Labor of Love: Gestational Surrogacy and the Work of Making Babies and Culture Keeping: White Mothers, International Adoption, and the Negotiation of Family Difference.

Anindita Majumdar is Assistant Professor at the Department of Liberal Arts, Indian Institute of Technology Hyderabad, India. Her ongoing areas of interest are commercial surrogacy, intimacy, kinship, assisted reproduction, and reproductive decline. Anindita has published Transnational Commercial Surrogacy and the (Un)Making of Kin in India  and Oxford India Short Introductions: Surrogacy.

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