Baby Gammy: the responsibilities of ART professionals in international surrogacy

The
'Baby Gammy' case has sparked worldwide interest and comment. At the time of
writing at least some of the 'facts' of what happened, when, and why remain
contested. However, as Sascha Callaghan and Ainsley
Newson note in
their commentary (see BioNews 766), the case highlights troubling
issues that have been exercising the minds of some of us for some time (1-4).

Among the key questions that
Callaghan and Newson ask are: whether it is 'reasonable [for rich countries] to outsource reproductive requirements to countries where women from deprived backgrounds can
obtain a slice of the baby marketplace?' and 'whether selling reproductive
services between countries is moral?'; the latter begging the question of
whether selling reproductive services anywhere is moral.

While the 'Baby Gammy case' has
unleashed global outrage, it would be naïve to think that any national or
international body is going to take action soon to address the problems
associated with international surrogacy. In 2011, the Hague Conference
on International Private Law began to consider the possibility of drawing up
internally accepted standards and regulations for international surrogacy
similar to those in operation for international adoption (5). However, the
formulation of such regulations, if they ever materialise, is a long-term rather
than a short-term undertaking (6-8), with the Conference deferring until Spring
2015 a decision on whether and how to pursue this project.

In
the meantime, given the divergence of regulatory arrangements between different
countries (where they exist), unilateral action by individual governments is
likely to perpetuate or aggravate existing problems that have resulted in
commissioning parents and babies being stranded — sometimes for years — in both
geographical and legal limbo. In the UK, proposals to reform the
well-intentioned but ill-conceived laws on domestic surrogacy by removing some of the 'push' factors that drive the
international surrogacy market, by legitimising domestic commercial surrogacy,
relaxing the requirements for granting a Parental Order, or reducing the rights
of surrogates through the introduction of binding pre-conception contracts and transferring
legal parentage earlier, are likely to bring about their own
problems.

Regardless of their partiality to
external regulation, a number of major fertility professional bodies, such as
the American Society for Reproductive Medicine, British Fertility Society, European
Society for Human Reproduction and Embryology, and the Fertility Society of Australia, nevertheless recognise
that responsible fertility care involves paying due regard to the interests of
fertility patients, donors (in this case also including surrogates) and
children born as a result of fertility procedures. While there will continue to
be debate about the precise parameters of such interests (for example, whether the
interests of children born as a result of fertility procedures can be secured
where they are prevented from knowing the identity of genetic parents or where
their conception has been the result of a commercial transaction), there should
be little argument with the fundamental principle of 'First do no harm'. Most surrogacy
arrangements involve gestational surrogacy and are therefore dependent on the
services of an IVF clinic, with attendant professional staff.

Professional bodies and leaders in the field have
both the opportunity and the responsibility to be proactive in promoting
acceptable standards of care for patients, donors, surrogates and children,
wherever IVF services are provided. They can do this by raising these issues as
a matter of priority within the global umbrella body, the International
Federation of Fertility Societies.