Morality and commerce: the financial future of surrogacy tourism

This is the second in a two-article series. Click here to read the first article.

Surrogacy tourism is today’s medical tourism scandale.

The main objection to the practice of surrogacy seems to be the commercial nature of it. The moral argument of whether surrogacy itself can be justified is not a very loud one in a place like Bangkok, Thailand. Most of the debate centers on the financial nature of the practice of surrogacy. Some argue that “agents” need to be denied the opportunity to make money off a practice that responds to sensitive personal needs.

A current bill before the Thai governing council explicitly bans both advertising and the use of third parties and other agents. In practice, surrogacy services may be restricted to public hospitals instead of private clinics or private hospitals.

The new Thai law, if passed, specifically denies surrogacy services to same sex couples and to single individuals. Grey areas in the bill may be resolved prior to its passing into law or may be left to interpretation in practice. For instance, commercial surrogacy may be allowed for “non-medical” reasons.

Morality, commerce and bad business

Planet Hospital has been a medical tourism facilitator for the past decade, providing surrogacy tourism services in India, Thailand, Mexico and, according to the owner, Rudy Rupak, possibly Brazil, Argentina and Uruguay.

Now, the Federal Bureau of Investigation is questioning the company’s owner Rudy Rupak and former clients are preparing a class action lawsuit against the company for misusing funds paid it to arrange surrogacy in Mexico and other countries.

The company has been around long enough that many people in the industry have a favorite Planet Hospital or Rudy Rupak story or anecdote. While the Wall Street Journal featured Planet Hospital in an article on global babies in 2010, the New York Times earlier this year deemed the problems of the company’s surrogacy services important enough to place on its front page. The company’s troubles have been exposed in documentaries on major American and Australian television networks.

[See also: Medical Travel Quality Alliance to certify medical tourism agents.]

According to media reports, Planet Hospital has been offering surrogacy services for couples who will travel to Cancun, Mexico. However, commercial surrogacy is illegal in Mexico except for the state of Tabasco. Tabasco’s main city, Villahermosa is 450 miles from Cancun, which is in the state of Quintana Roo, at the furthest tip of the Yucatan Peninsula.

Planet Hospital brought couples to Cancun for the fertility treatments and implantation. The surrogate mothers stayed in housing provided and supervised by Planet Hospital in Cancun. As the delivery date approached, the surrogate mother was put on a flight to Tabasco to give birth in that state where birth certificates can legally state the names of the contracting parents and not the birth mother.

Although contracting parents may feel that skirting laws in this way may at some point place them in legal jeopardy and their babies’ citizenship or birth status in question, this is not what is causing Planet Hospital’s troubles.

Geoff Moss, a former associate in Planet Hospital has said that Planet Hospital did not escrow the money from parents that was intended to pay the clinics and the surrogates. Comingling money meant for payouts over several months with operating funds creates opportunities for abuse of trust and financial mismanagement.

Surrogacy tourism needs well conceived regulation

There is a danger that too quick a reaction in drafting a law to cover the many domestic, international and legal issues involved in surrogacy may lead to unintentional consequences.

The main thrust of these laws is to protect the rights of the babies, the rights of the surrogate mother, and the rights of the contracting parents.

Laws have recently been enacted or amended in several countries both in support of and against surrogacy. In some countries, the law denies commercialization of surrogacy services and the right of same sex couples or single persons to engage a surrogate mother. 

In other countries, court rulings seem increasingly to favor commercial surrogacy in all its forms. A U.K. mother last year won a landmark legal case in which two British parents were allowed to keep a child who had been born via commercial surrogacy in the U.S.

Belgium, which has long prohibited all surrogacy, is considering making surrogacy legal. Bulgaria is reconsidering its law that bans commercial surrogacy. An updated surrogacy law is currently before Israel’s parliament to permit gay couples and single men and women to obtain surrogacy services.

Greece is one of the few countries in the world that has introduced a complete and comprehensive regulatory framework for medically assisted human reproduction. The Greek law has been described as one of the most progressive in the modern legal world. Along with conditions for surrogacy, the law includes provisions for a variety of issues such as human cloning, artificial insemination, cryopreservation of embryos, and gamete donation.

Addressing the problems

The medical tourism industry has to respond to the problems found in surrogacy tourism. The first is the need for medical tourism companies, brokers, clinics and even hospitals to hold patient funds in escrow, which is in an account under the control of a third party, often a lawyer. Abuse of trust by misappropriating funds will no longer be an issue.

Medical tourism certification offers some reassurance to those seeking surrogacy around the world. For medical travel companies engaged in surrogacy, organ transplantation or other “large ticket” procedures, the Medical Travel Quality Alliance requires they set up escrow accounts before the agencies can become certified.

The second immediate need is for transparency especially in pricing and payments, and in doctor and clinic qualifications.

The medical tourism industry in general must gain a greater appreciation of the care management needs of their patients/clients. In the case of surrogacy tourism, this means developing protocols for the physical and emotional care of the parents, and also for the health, physical and emotional needs of the surrogate. Legal issues must also be made clear so that parents and surrogates can make appropriate informed choices.

Agencies around the world vary in the care (or case) management they provide. Some charge an all-inclusive fee that covers surrogate expenses, hospital and doctor fees, legal fees (contracts, DNA testing, embassy travel documents, etc.) and include monitoring or supervision of the surrogate’s care. Others leave the care management to the doctor, accepting doctor assurances that appropriate medical, nutritional, emotional and legal issues are being handled.

Back in Thailand, doctors and agencies are already looking for alternative destinations where they can establish commercial surrogacy services. Among the countries under consideration are Cambodia and Nepal.

Commercial surrogacy is not going away

Commercial surrogacy is an offshoot of the success of fertility treatments. As more women consider in vitro fertilization an acceptable option for pregnancy, those for whom IVF is not possible refuse to deny themselves offspring and a full family life. Adoption and surrogacy are the remaining choices. A child through adoption tends to be more difficult and restricted than a child through surrogacy.

For those in the medical tourism industry, the issue of “surrogacy tourism” or commercial surrogacy is not an issue of morality. Whatever one believes, that every woman has the right to motherhood or that women are being commoditized, the facts are that there is a need for surrogacy services and that people will take chances with the law in order to have children and to be families.