(UPDATED) Human Rights and the Business of Reproduction: Surrogacy Replacing International Adoption from Guatemala

Karen Smith Rotabi

As international adoption has become more difficult, the global surrogacy industry has begun to surge to meet the fertility demands of individuals and couples seeking to secure healthy infants.

This is the first in a three-part series of articles on the global surrogacy trade.

UPDATE: Subsequent to the publication of this article, MLJ , a firm cited below, changed their website to delete any reference to Mark Reder’s expertise in “surrogacy arrangements,” text originally cited in this piece.   This change occurred roughly 72 hours after publication.

Since the turn of the Millennium, approximately 200,000 children have been adopted from abroad by U.S. families. Success stories include positive outcomes for children who make significant developmental gains as compared to children left behind in institutions in their home countries. However, one down-side has been what some call a “baby trade” in which some adopting families have paid at least $25,000 and upwards to $50,000 to be matched with very young and healthy children.

The most alarming and systematic problems in recent times were in Guatemala. While there were legitimate adoptions, especially of older children, it is believed that payments to birth mothers for their infants became routine. It was estimated that at the peak of this practice, Guatemala sent 17 children a day to other countries as inter-country adoptees. Under these conditions, the demand for infants became such that Claudia Rivera, a child rights advocate, asserts that “children were manufactured” in the nation to supply the system. Another Guatemalan women’s health advocate, speaking on the grounds of anonymity about her assistance to sex workers, underscored the contribution of inter-country adoption pressures to the grave situation of human trafficking in the nation.

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The indigenous population represents approximately 50 percent of Guatemala’s population. Because of systemic discrimination, the majority of indigenous women have had little or no education, are unable to read and have few economic options beyond selling goods in markets. Marketers may earn as little as a dollar-a-day and experience some of the greatest gender-based oppression in the Americas. Photo by Karen Smith Rotabi.

She recounted the experience of a 17-year old girl who was sold by her parents into prostitution; when she later became pregnant, her infant was sold into inter-country adoption. That particular child most likely lives in the United States today as an adoptee.

Coercive child relinquishments are also a problem in an environment of extreme poverty where there is no attempt to provide the birth mother with counseling to insure informed consent and to protect her basic rights. In Guatemala there have been allegations of child theft to supply the adoption industry and today several kidnapping cases remain unresolved. During a recent US speaker’s tour on violence against women, Guatemalan human rights defender Norma Cruz recently reminded audiences that this form of child kidnapping is the cruelest kind of violence against a mother, describing the experience as an “eternal suffering.”

Cruz’s advocacy efforts include legal actions on behalf of women who have experienced this pain and she has been seeking international legal resolution without satisfaction. Cruz further underscored that these alleged kidnapping crimes took place in an environment already characterized by the highest rate of violence against women in the Western Hemisphere and, as such, seeking legal advocacy to exercise rights is a dangerous act in and of itself.

In response to concerns for child sales and theft, a new era of reform has been underway in both Guatemala and the United States, in accordance with the Hague Convention on Intercountry Adoption. Both nations, along with over 70 other countries, have ratified the international agreement which was developed to prevent child sales and theft and ultimately promote the best interests of the child. Practically speaking, the Convention has cooled the international adoption industry with regulations that set forth standards for agencies to act with financial transparency and improved child placement practices, and with obligations to prevent child sales and theft. This is a tall order in sending nations where bribery, corruption, and human trafficking are known problems. Still, for those concerned about adoption practices and ethics, this has been an important step forward in curbing abuses and raising standards of care.

With this new system, combined with problems like the recent adoption scandals in Russia and other nations, inter-country adoption has undergone radical decline and it is no longer the opportunity it once was for building families.  In the US, the practice peaked in 2004 with 22,990 children sent to the nation as adoptees as compared to only 12,753 in 2009.

As adoption has become more difficult, the global surrogacy industry has begun to surge to meet the fertility demands of individuals and couples seeking to secure healthy infants.

A handful of adoption agencies and service providers with prior significant interests in Guatemala have been shifting to meet this need. For example, attorney Mark Reder of MLJ Adoptions based in Indianapolis boasts international surrogacy as a practice area of expertise, calling the activity “surrogacy arrangements.” Because Guatemala is recognized by the UN to have the greatest gender inequality in the Western hemisphere and the nation has no regulatory laws on surrogacy, “expertise” on such matters is more about the how to, where to, and with which vulnerable woman to contract the service. In the current environment, the information and service that will be offered will undoubtedly be tailored to meet the needs of those who have the privilege to pay for surrogacy.  One has to wonder how information will be imparted to Guatemalan women who may well be illiterate and lack the legal savvy to truly understand the contracts they will be required to sign.

Armed with information from his agency’s previous adoption work in the nation, Reder has the knowledge and networks to be well-positioned in this emerging market. North American and European families are now looking to him and other entrepreneurs to supply healthy infants but at the societal level, there is no real discourse about the inherent ethical dilemmas and human rights concerns involved.

Desperately poor, Guatemalan women will inevitably find themselves being offered an opportunity to earn a wage to birth a baby in this dollar-a-day nation—not unlike previous underground adoption activities. The financial payment for surrogacy in Guatemala is unclear, but inter-country adoption experts estimate that some women earned approximately $1,500 for child-relinquishment signatures in the old adoption system, which amounts to just over $5 a day for a normal 280 day gestational period. For a woman of privilege in the United States looking for fertility alternatives, this is a bargain-basement price, but extreme poverty is the only reason why any Guatemalan woman would agree to such an arrangement. It is a reminder to all of us that poverty is coercive and the fertility choices that are made, on both sides of the global surrogacy arrangement equation, will be determined by both economic opportunity and oppression. 

Those developing surrogacy services in this desperately poor nation should take caution as they pioneer in this area of global fertility practice. As a business model, they are stepping into a grey area of human rights which will challenge us all to consider what is right and wrong and how far to take the privilege of purchasing power. Developing an expanded or more precise definition of human trafficking and a new area of regulatory control will become important considerations in this next wave of the global baby business.

It should be noted that very little is currently known about the exact nature of Guatemalan surrogacy services and the mechanics of such arrangements–how women get impregnated, by whose sperm and with whose eggs and so on. However, in a follow-up report by Dr. Nicole Bromfield, the case of surrogacy in India will be investigated, shedding light on these practices elsewhere.

Commentary Human Rights

A Sterilized Peruvian Woman Seeks Justice From the Americas’ Highest Human Rights Court

Cynthia Soohoo & Suzannah Phillips

I.V.'s case, I.V. v. Bolivia, illustrates the all-too-common scenario of medical providers making decisions on behalf of women who are deemed unfit or unable to make their own choices.

In 2000, a Peruvian political refugee referred to by her initials, “I.V.,” went to a Bolivian public hospital to deliver her third child. According to court documents, the doctors decided during the cesarean section that a future pregnancy would be dangerous for I.V. and performed a tubal ligation—for which they claimed they had I.V.’s consent. When I.V. learned that she had been sterilized two days later, she said, she was devastated.

After her complaint against the surgeon who sterilized her was dismissed by Bolivian courts, I.V. brought her case to the Inter-American Court of Human Rights (IA Court), which heard oral arguments earlier this month. In a region where there are widespread reports of forced sterilization, the case is the first time the court will consider whether nonconsensual sterilization is a human rights violation.

The IA Court should hand down its decision in the coming months. A favorable ruling in this case by the IA Court—the highest human rights court in the Americas—could require Bolivia to, among other things, pay reparations to I.V., investigate and possibly punish the doctors who sterilized her, and take steps to prevent similar situations from occurring in the future. The decision will also have ramifications across the region, establishing a binding legal precedent for the 25 countries that are party to the American Convention on Human Rights.

I.V. v. Bolivia provides an important opportunity for the IA Court to condemn forced sterilization and to adopt clear standards concerning informed consent. It would also be joining U.N. human rights bodies and the European Court of Human Rights in recognizing that forced sterilization violates fundamental human rights to personal integrity and autonomy, to be free from gender discrimination and violence, to privacy and family life, and, as CUNY Law School’s Human Rights and Gender Justice Clinic and Women Enabled International recently argued in our amicus brief to the IA Court, to be free from cruel, inhuman, or degrading treatment or torture.

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Further, the European Court and U.N. experts recognize that possible health risk from a future pregnancy cannot justify nonconsensual sterilization because there are alternative contraceptive methods to prevent pregnancy and women must be given the time and information needed to make an informed choice about sterilization. The IA Court should make similar findings.

Unlike the sterilization of Mexican immigrant women in the United States in the 1970s, recently portrayed in the documentary No Más Bebés, I.V.’s case doesn’t appear to involve a broad governmental policy of sterilizing poor or immigrant women. But it illustrates the all-too-common scenario of medical providers making decisions on behalf of women who are deemed unfit or unable to make their own choices.

Indeed, forced and coerced sterilization is disproportionately perpetrated around the world against women in stigmatized groups, such as women living with HIV, poor women, ethnic or national minorities, or women with disabilities because some health-care providers believe that such women should not have children. Whether driven by animosity against certain women, stereotypes that these women are unfit to become parents, or a paternalistic notion that “doctor knows best,” the end result is the same: Women are permanently robbed of their capacity to have children without their consent.

The parties contest whether I.V. orally consented to sterilization during her c-section. But even if she did so, medical ethical standards and decisions from U.N. human rights bodies and the European Court make clear that consent obtained during labor or immediately preceding or after delivery cannot be valid because the circumstances surrounding delivery—due to pain, anesthesia, or other factors—are inherently inconsistent with voluntary patient choice.

I.V. delivered at a public hospital that predominantly treats indigent women, many of whom are indigenous or migrants. The Inter-American Commission on Human Rights—which effectively acts as a court of first instance for the IA Court—considered the case before it went to the IA Court and noted the special vulnerability of migrant women seeking health care in Bolivia, given their reliance on public services and the lack of care options. It found that I.V.’s medical team was influenced by “gender stereotypes on the inability of women to make autonomous” reproductive decisions. It further concluded that the decision to sterilize I.V. without proper consent reflected notions that the medical staff was “empowered to take better medical decisions than the woman concerned regarding control over reproduction.”

Sixteen years after her sterilization, I.V. still acutely feels the emotional and psychological toll of having been sterilized. Because of the severity of physical and mental harms that forced sterilization imposes upon women, the Inter-American Court should join the European Court of Human Rights and U.N. human rights experts in recognizing that forced sterilization constitutes cruel, inhuman, or degrading treatment and may constitute torture.

In addition to condemning forced sterilization, the IA Court should recognize the multiple human rights violations I.V. suffered. The Inter-American human rights system protects women from gender-based discrimination and violence and violations of the right to personal integrity, information, privacy, and family life, all of which are at issue in this case.

Analysis Law and Policy

State-Level Attacks on Sexual and Reproductive Health and Rights Continue, But There’s Also Some Good News

Rachel Benson Gold & Elizabeth Nash

Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education.

State legislatures came into session in January and quickly focused on a range of sexual and reproductive health and rights issues. By the end of the first quarter, legislators in 45 states had introduced 1,021 provisions. Of the 411 abortion restrictions that have been introduced so far this year, 17 have passed at least one chamber, and 21 have been enacted in five states (Florida, Indiana, Kentucky, South Dakota, and Utah).

This year’s legislative sessions are playing out on a crowded stage. The U.S. Supreme Court is considering a case involving a package of abortion restrictions in Texas; that decision, when handed down in June, could reshape the legal landscape for abortion at the state level. Moreover, just as state legislatures were hitting their stride in late March, the U.S. Food and Drug Administration revised the labeling for mifepristone, one of the two drugs used for medication abortion. That decision immediately put the issue back on the front burner by effectively counteracting policies restricting access to medication abortion in a handful of states. (Notably, the Arizona legislature moved within days to enact a measure limiting the impact of the FDA decision in the state.)

Progress on Several Fronts 

Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education. By the end of the first quarter, legislators in 32 states had introduced 214 proactive measures; of these, 16 passed at least one legislative body, and two have been enacted. (This is nearly the same amount introduced in the year 2015, when 233 provisions were introduced.)

Although the proactive measures introduced this year span a wide range of sexual and reproductive health and rights issues, three approaches have received particular legislative attention:

  • Allowing a 12-month contraceptive supply. Legislators in 16 states have introduced measures to allow pharmacists to dispense a year’s supply of contraceptives at one time; these bills would also require health plans to reimburse for a year’s supply provided at once. (In addition, a bill pending in Maryland would cover a six-month supply.) Legislative chambers in three states (Hawaii, New York, and Washington) have approved measures. Similar measures are in effect in Oregon and the District of Columbia.
  • Easing contraceptive access through pharmacies. Legislators in 12 states have introduced measures to allow pharmacists to prescribe and dispense hormonal contraceptives. As of March 31, bills have been approved by at least one legislative chamber in Hawaii and Iowa and enacted in Washington. The measures in Hawaii and Iowa would require pharmacist training, patient counseling, and coverage by insurance; the Hawaii measure would apply only to adults, while the Iowa measure would apply to both minors and adults. The new Washington law directs the state’s Pharmacy Quality Assurance Commission to develop a notice that will be displayed at a pharmacy that prescribes and dispenses self-administered hormonal contraception. Under current state law, a pharmacy may prescribe and dispense these contraceptives under a collaborative practice agreement with an authorized prescriber. Oregon has a similar measure in effect. (California, the only other state with such a law, issued regulations in early April.)
  • Expanding education on sexual coercion. Measures are pending in 17 states to incorporate education on dating violence or sexual assault into the sex or health education provided in the state. A bill has been approved by one legislative chamber in both New Hampshire and New York. The measure approved by the New Hampshire Senate would require age-appropriate education on child sexual abuse and healthy relationships for students from kindergarten through grade 12. The measure approved by the New York Senate would mandate education on child sexual abuse for students from kindergarten through grade 8. And finally, in March, Virginia enacted a comprehensive new law requiring medically accurate and age-appropriate education on dating violence, sexual assault, healthy relationships, and the importance of consensual sexual activity for students from kindergarten through grade 12. Virginia will join 21 other states that require instruction on healthy relationships.

Ongoing Assault on Access to Sexual and Reproductive Health Services

Even as many legislators are working to expand access to services, others are continuing their now years-long assault on sexual and reproductive health services and rights. Restricting access to abortion continues to garner significant attention. However, last year’s release of a series of deceptively edited sting videos targeting Planned Parenthood has swept both the family planning safety net and biomedical research involving fetal tissue into the fray.

  • Abortion bans. Legislative attempts to ban abortion fall along a broad continuum, from measures that seek to ban all or most abortions to those aimed at abortions performed after the first trimester of pregnancy or those performed for specific reasons.
    • Banning all or most abortions. Legislators in nine states have introduced measures to ban all or most abortions in the state, generally by either granting legal “personhood” to a fetus at the moment of conception or prohibiting abortions at or after six weeks of pregnancy. Only one of these measures, a bill in Oklahoma that would put performing an abortion outside the bounds of professional conduct by a physician, has been approved by a legislative chamber.
    • Banning D&E abortions. Legislators in 13 states have introduced measures to ban the most common technique used in second-trimester abortions. Of these, a bill in West Virginia was enacted in March over the veto of Gov. Earl Ray Tomblin (D). A similar measure was approved by both houses of the Mississippi legislature and is being considered by a conference committee. (Kansas and Oklahoma enacted similar laws last year, but enforcement of both has been blocked by court action.)
    • Banning abortion at 20 weeks post-fertilization. South Dakota and Utah both enacted measures seeking to block abortions at 20 weeks during the first quarter of the year. The new South Dakota law explicitly bans abortions at 20 weeks post-fertilization (which is equivalent to 22 weeks after the woman’s last menstrual period). The Utah measure requires the use of anesthesia for the fetus when an abortion is performed at or after that point, something that providers would be extremely unlikely to do because of the increased risk to the woman’s health. In addition to these new measures, 12 other states ban abortion at 20 weeks post-fertilization.
  • Banning abortion for specific reasons. In March, Indiana enacted a sweeping measure banning abortions performed because of gender, race, national origin, ancestry, or fetal anomaly; no other state has adopted such a broad measure. The Oklahoma House approved a measure to ban abortion in the case of a fetal genetic anomaly; the state already bans abortion for purposes of sex selection. Currently, seven states ban abortion for the purpose of gender selection, including one state that also bans abortion based on race selection and one that also bans abortion due to fetal genetic anomaly.
  • Family planning funding restrictions. In the wake of the Planned Parenthood videos, several states have sought to limit funding to family planning health centers that provide or refer for abortion or that are affiliated with abortion providers. These efforts are taking different forms across states.
    • Medicaid. Measures to exclude abortion providers (e.g., Planned Parenthood affiliates) from participating in Medicaid have been introduced in five states, despite the clear position of the federal Centers for Medicare and Medicaid Services that such exclusions are not permitted under federal law. In March, Florida Gov. Rick Scott (R) signed a Medicaid restriction into law. By the end of the first quarter, measures had passed one chamber of the legislature in Arizona, Mississippi, and Missouri; a measure introduced in Washington has not been considered. (A related measure enacted in Wisconsin in February limits reimbursement for contraceptive drugs for Medicaid recipients.)

Similar attempts by six other states have been blocked by court action since 2010. These measures include laws adopted by Indiana and Arizona as well as administrative actions taken in Alabama, Arkansas, Louisiana, and Texas.

  • Other family planning funds. Legislators in 13 states have introduced measures to prevent state or federal funds that flow through state agencies from being distributed to organizations that provide, counsel, or refer for abortions; the measures would also deny funds to any organization affiliated with an entity engaging in these activities. Measures in three of these states have received significant legislative attention. In February, Wisconsin enacted a measure directing the state to apply for Title X funds (the state is not currently a grantee under the program); if the state’s application were approved, the measure would ban this funding from going to organizations that engage in abortion care-related activity. A measure that would deny funds to organizations engaged in abortion care-related activity passed the Kentucky Senate in February. A similar measure in Virginia, which would both prohibit an abortion provider from receiving funding and give priority to public entities (such as health centers operated by health departments) in the allocation of state family planning funds was vetoed by Gov. Terry McAuliffe (D) in March.
  • Related funds. In February, Ohio Gov. John Kasich (R) signed a measure barring abortion providers or their affiliates from receiving federal funds passing through the state treasury to support breast and cervical cancer screening; sex education; and efforts to prevent infertility, HIV in minority communities, violence against women, and infant mortality.
  • Fetal tissue research. The Planned Parenthood videos have also led to legislation in 28 states aimed at research involving fetal tissue. Measures have passed one legislative chamber in four states (Alabama, Iowa, Idaho, and Kentucky), and new laws have been enacted in four states (Arizona, Florida, Indiana, and South Dakota) in the first quarter alone. All four laws ban the donation of fetal tissue for purposes of research. These new laws are the first to ever ban the donation of fetal tissue. The Arizona law also bans research using fetal tissue, and the new South Dakota law strengthens the state’s existing ban by now considering fetal tissue research as a felony; four other states (Indiana, North Dakota, Ohio and Oklahoma) have similar provisions in effect.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.