1. The issue
Transnational reproductive travel (sometimes packaged with holiday time in tourist destinations) is a largely unfettered multibillion-dollar global industry that flourishes, in part, by capitalizing on differences in legal regimes, wages and standards of living, and cultural and ethical norms. Indeed, as Scott Carney explains with respect to the commercialization of human eggs for third-party reproduction, “internationalization has made oversight laughable. … [R]egulators are dogs with no teeth” (Carney 2011, 117). While professional organizations can introduce guidelines and nation-states can introduce laws, the fact is that patients can (and do) travel to places where there are no (or very few) restrictions on what reproductive goods (i.e., gametes) and services (i.e., gestational services) can be purchased. Not all transnational reproductive travel, however, is to avoid legal or other prohibitions. Other reasons for such travel are to reduce costs, to access better-quality care, to access medical resources otherwise not available in one’s home country, to reduce wait times, or to avoid legal or professional prohibitions on access by particular demographic or social groups (Crozier and Baylis 2010).
In recent years, transnational reproductive travel has come to involve the cross-border movement of gametes or embryos, as well as persons. Consider, for example, complex reproductive projects involving the cross-border movement [End Page 1] of reproductive materials, reproductive laborers (i.e., women who provide eggs for third-party reproduction and women who provide gestational services), and intended parents. One such scenario might involve the shipment of gametes or embryos to a foreign clinic in a country where a gestational carrier resides, to which the intended parent(s) will later travel in order to pick up the child(ren). While this is not yet a common occurrence, it is not an unfamiliar narrative, especially among those who are unable to adopt or arrange a contract pregnancy in their home countries. Consider, for example, the well-publicized case of Yo-nathan Gher and his partner, Omer. This gay Israeli couple contracted with an Indian woman to bear and birth a child for them, using the egg of another Indian woman whom they selected from an online database (Gentleman 2008).
As this and similar cases illustrate, at the heart of the global reproductive travel industry are women who sell their reproductive materials and/or labor. Typically, these women have no or limited options to earn the money they need to live and pay their bills. In low- or middle-income countries, they are generally poor women, and sometimes poor immigrant women. In middle-and high-income countries, the egg providers are generally young college students who need money to pay school fees or debts; the gestational carriers are women of lower socioeconomic status.
This special issue of IJFAB makes a unique contribution, from an explicitly feminist perspective, to the ethical debates surrounding transnational reproductive travel. The original call for papers invited reflections on vulnerability, exploitation, coercion, commodification, and inequity in anticipation that such reflections would be relevant to the following sorts of questions, some of which are tackled by the contributors to this special issue:
• Does transnational reproductive travel increase or cloud our understanding of vulnerability?
• Does transnational reproductive travel benefit women in low- and middle-income countries by increasing employment opportunities, or does it further subjugate women who are at increased risk of exploitation and coercion?
• Should women be paid for their eggs? If so, what is a fair price? Should women be compensated for their reproductive labor? If so, what is a fair wage?
• What rules should govern the import and export of reproductive materials, whether for reproductive or research use? [End Page 2]
• When the motivation for transnational reproductive travel is to avoid domestic legal or professional ethical constraints, should health-care providers help to facilitate transnational travel with a view to promoting access to safe and effective interventions, or should they actively discourage such travel?
• How should national self-sufficiency, as a strategy to reduce transnational reproductive travel by individual and couples, be evaluated?
2. The articles
Some of the articles in this special issue speak to the work of other authors, while some of them speak to the authors’ own previous work. Together, these articles move forward ongoing conversations on the ethics of transnational reproductive travel.
In 2010, Dominique Martin, in response to the ever-expanding business of reproductive travel, introduced the concept of self-sufficiency in reproductive resources. In this initial contribution to the literature, Martin identified reproductive travel as symptomatic of domestic failures to meet the needs of citizens for equal access to reproductive goods and services (i.e., donor gametes and gestational surrogacy). A few years later, Martin expanded on this initial discussion in an article coauthored with G. D. K. Crozier (Crozier and Martin 2012). In this article, Martin detailed some of the benefits of self-sufficiency as a response to the problem of unmet needs for reproductive resources (which she characterized as insufficient supply), while Crozier advocated for a regulated global marketplace in reproductive resources. In this issue of IJFAB, we are treated to a reprise by each of these authors, both of whom team up with new colleagues to expand further on their contrasting views on the right response to the rapidly expanding transnational market in reproductive resources. Martin writes with Stefan Kane, while Crozier writes with Jennifer Johnson and Christopher Hajzler.
In “National Self-Sufficiency in Reproductive Resources: An Innovative Response to Transnational Reproductive Travel,” Martin and Kane argue that national self-sufficiency, with its commitment to social solidarity, is consistent with a feminist bioethics: “the self-sufficiency model resituates reproductive resources in a framework of mutual care and relatedness consistent with feminist bioethics. … Within the self-sufficiency model, the social context of procurement and use of reproductive resources is recognized, and relationships in the [End Page 3] personal and public spheres are nurtured.” They summarize the practical elements of progress toward self-sufficiency as the POLIS model:
Public health, for the prevention and treatment of needs; Organization, with a national authority taking responsibility for oversight and coordination of various strategic elements and infrastructure; Legislation, to protect interests of intending parents, donors and children; Information, through systematic and transparent collection of data to inform policy and practice through quality and safety evaluation; and Societal engagement, through debate and education to encourage solidarity and enfranchise all members of the community in opportunities to donate or receive resources when needed.
For their part, Crozier, Johnson, and Hajzler, in “At the Intersections of Emotional and Biological Labor: Understanding Transnational Commercial Surrogacy as Social Reproduction,” defend a market-based response to transnational reproductive travel. Following Wertheimer, Crozier and her coauthors recognize that “a contract between two agents is unfair when one party has a power advantage that permits them to exploit the other party to their advantage, and to negotiate a contract wherein their net benefit exceeds the net benefit of the other party.”
As a corrective to this exploitative potential, they defend the view that commercial transnational gestational surrogacy should be recognized as a legitimate form of paid work. The pivotal issues then are how to value and compensate social reproductive labor that includes much unpaid or invisible biological and emotional labor, and how to establish a fair wage for surrogates so that these women don’t find themselves in that uneasy space between potential exploitation and economic gain.
Crozier and colleagues address these questions from three discrete perspectives: philosophical bioethics, economics, and materialist feminism, which, taken together, point to the undervaluation of social reproduction in the transnational commercial surrogacy market. One possible response to this undervaluation is to introduce a legislated minimum wage for commercial transnational surrogacy. The authors reject this approach, suggesting that it is likely to cause greater harm than benefit to potential sellers. Another possible response, which the authors conditionally endorse, is the introduction of government subsidies.
The next article, “Exploitation in Cross-Border Reproductive Care” by Angela Ballantyne, interrogates the familiar (and, according to Ballantyne, often misplaced) claim that women in low- and middle-income countries who [End Page 4] provide reproductive services for foreigners are exploited. Ballantyne suggests that, in specific instances, there may be legitimate concerns about potential harms, certain vulnerabilities (whether inherent, situational, or pathogenic), invalid consent, unfair treatment, undue inducement, or commodification. In her view, however, no one of these legitimate concerns should be mistaken for exploitation. More specifically, while vulnerability is a precondition of exploitation, it is not to be conflated with exploitation.
Ballantyne relies on Wertheimer’s parsing of exploitation into harmful exploitation (when a person is made worse off by her participation in some activity/transaction), coercive exploitation (when a person is deceived or forced into participation in some activity/transaction), and mutually advantageous exploitation (when a person receives less than her fair share of the benefits from participation in some activity/transaction). Ballantyne’s concern is with mutually advantageous exploitation, when a person is better off as a result of her participation in some activity/transaction than she would otherwise be, but she does not get her fair share of the benefits. Ballantyne maintains that, in the absence of a convincing model of fair distribution of benefits, it simply is not possible to affirm that women who provide gestational services or human eggs for third-party reproduction are treated unfairly and, as such, are exploited.
Ballantyne argues further that, even if commercial transnational trade in reproductive services is exploitative, there may be reason to tolerate such exploitation, while at the same time seeking to increase the potential long-term benefits for women in low- and middle-income countries who sell their reproductive labor.
The next articles shift to a consideration of transnational reproductive travel in specific jurisdictions. First, there are two articles on surrogacy—one by Andrea Whittaker that looks at this practice in Thailand and another by Jennifer Parks that looks at surrogacy in Japan. These are followed by two articles on human eggs for third-party reproduction. The first is by Charlotte Kroløkke, and the second is our contribution to the special issue.
Whittaker, like many of the other authors in this issue, extends her previous work on transnational reproductive travel (Whittaker and Speier 2010). In “Merit and Money: The Situated Ethics of Transnational Commercial Surrogacy in Thailand,” her article in this issue, she interrogates the structural conditions and the local moral economies that sustain this practice. Particularly worthy of note, from her perspective, is the local ethics of surrogacy “as a selfless meritorious act of Buddhist merit” and “dutiful motherhood.” This stands [End Page 5] in some tension with the view of surrogacy as a commercial transaction. Whittaker suggests that this tension can be understood through the lens of “situated ethics.” Indeed, her paper embodies what she describes as “a key principle of reproductive justice,” where the interests of the people who are made most vulnerable by the reproductive technologies are brought to the center of the debate. She examines the lived experience of commercial surrogacy in Thailand, against the backdrop of the regulatory context and the values of Thai Buddhism, and suggests that transnational surrogacy might best be characterized as an “intimate industry.” In the end, we are left with the possibility that “carrying merit” might be a new metaphor for the subordination and exploitation of women and that transnational surrogacy leaves women in Thailand vulnerable to exploitation.
Parks, in “Feminist Issues in Domestic and Transnational Surrogacy: The Case of Japan,” looks at the role of Japanese culture (with its emphasis on traditional values, family, and community) in shaping the practice of transnational surrogacy both within Japan and abroad. To illustrate her concerns with current social and legal approaches to surrogacy in that country, Parks summarizes two recent controversial cases. The first case is that of Aki Mukai and Nubuhiko Takada, a Japanese couple who arranged for a woman in the United States to gestate their genetically related embryos. The services of a surrogate were required because Mukai had had a hysterectomy and radiation therapy to treat uterine cancer, but had first cryopreserved some of her eggs for her own future reproductive use. Mukai and Takada were the biological parents of the twins born of the surrogacy arrangement. Mukai was not able to register the children as her “natural” (biological) children, however, because she had not birthed them. Meanwhile, Takada was recognized as the legal father under the principle of presumptive paternity. The second case described by Parks is that of Ikufumi and Yuki Yamada, a Japanese couple who commissioned a child from a woman in India. The couple divorced, and both Yuki and the gestational carrier disowned the newborn. Eventually, the baby’s paternal grandmother claimed her, at which time a certificate of identity was issued for Baby Manji; the certificate did not include a mother’s name or nationality.
Parks details the harms experienced by Baby Manji and other children born of surrogacy arrangements in an earlier article (2010). In her continued study of surrogacy in Japan in this issue, the emphasis is on the principle of respect for women and the importance of eliminating the koseki or Family Registration Act, which stipulates “that only birth mothers may register children as [End Page 6] their ‘natural’ children.” In brief, Parks argues that the Japanese government should eliminate the koseki and recognize all forms of surrogacy.
In “Eggs and Euros: A Feminist Perspective on Reproductive Travel from Denmark to Spain,” Charlotte Kroløkke looks at reproductive travel in Europe. The article is informed by mixed methods empirical research, including on-site clinical observations, semistructured interviews, and a critical review of web-based marketing materials. The ethnographic work is situated against the backdrop of a description of Danish law as well as legal and bioethical discourses. The foundation for the ultimate ethical analysis is relational philosophy as developed by feminist bioethics scholars. Through the results of the study reported on in this article, Kroløkke explains how Danish women and couples who experience infertility and engage in reproductive travel to Spain to purchase human eggs reconcile their actions with the dominant bioethical discourse that prizes altruism. She suggests that Danish women use affects/emotions/mantras to downplay commercialism and emphasize altruism, and thereby naturalize transnational egg donation. And, for their part, the women egg providers in Spain (European or immigrant women) embrace narratives of solidarity and altruism (where eggs are given, received, and shared, but not sold), and an understanding of eggs as “excess” reproductive material. From the ethnographic material and insights of feminist relational theory, Kroløkke explores the development of an approach to transnational egg donation grounded in fair trade and reciprocity.
Next, in “Achieving National Altruistic Self-Sufficiency in Human Eggs for Third-Party Reproduction in Canada,” our contribution to the special issue, we focus on transnational reproductive travel involving Canadians who seek to circumvent the law by going abroad to purchase human eggs. In an earlier article, we called for national self-sufficiency in human eggs (Downie and Baylis 2013). In this article, we answer this call, both nuancing and advancing our original claim.
First, we briefly explain how the Canadian Assisted Human Reproduction Act (AHR Act 2004) prohibits the purchase of human eggs and how this prohibition appears to have had a direct (albeit unintended) consequence of increasing transnational commercial transactions in eggs, with the destination country of choice for many Canadians being the United States. Then, we advocate national altruistic self-sufficiency as an appropriate response to transnational reproductive travel to purchase eggs. Our commitment to national altruistic self-sufficiency in human eggs is “grounded in the belief that one doesn’t protect the Canadian public from ‘practices that may contravene morality’ (AHR Reference 2010, [End Page 7] para 21) or ‘may undermine fundamental moral precepts’ (AHR Reference 2010, para 23) by prohibiting the sale of human eggs, but then fail to prohibit participation in transnational trade thereby allowing Canadians to export the commercialization of reproduction to other countries.”
For us, achieving national altruistic self-sufficiency in human eggs for third-party reproduction in Canada is an important means to the end of not exporting the commercialization of human reproductive materials. Our article details myriad practical strategies both to increase the domestic supply of and to decrease the domestic demand for third-party eggs for human reproduction.
The last article in the collection, “Cross-Border Sex Selection: Ethical Challenges Posed by a Globalizing Practice,” is by Rajani Bhatia. Bhatia interrogates the contemporary use of two pre-pregnancy technologies for nonmedical (lifestyle) sex selection. The first of these technologies, sperm sorting, aims to sort and select sperm in order to preselect the offspring’s sex. Only sperm of the desired sex will be used for fertilization. The second of these technologies, pre-implantation genetic diagnosis, involves the biopsy and screening of eight-cell embryos to preselect the offspring’s sex by selectively transferring only embryos that are of the desired sex.
Bhatia shows how, with each of these technologies, we are witnessing the transnational movement of information, biomaterial, patients, providers, and equipment across borders as the users of these technologies seek to evade legislated constraints. Of particular interest are the ways in which the United States is not only a destination and a departure country for these emerging global forms of sex selection, but also, in many ways, a driver of lifestyle sex selection.
Bhatia argues that international documents that address the ethics of sex selection fail to consider the implications of clinic-based and clinic-driven sex selection. Instead, the focus is on the obligations of nation-states to address discrimination against girls and women in ways that do not limit access to abortion. The problem of sex selection is thereby positioned as a problem for the Global South and Eastern countries, with only passing (if any) attention to sex selection for “family-balancing.” Treating sex selection as a reasonable family limitation strategy essentially gives clinics (mostly in the United States) free rein to grow their businesses within and across borders, as their businesses are not responsible for population sex ratio imbalances. In this way, libertarian values prevail. Individual preferences for a child of a particular sex that are acted upon at the clinic level are legitimated and are, at the same time, divorced from cultural preferences in the broader social, cultural, and political context. [End Page 8]
With the publication of this special issue of IJFAB, we come to a (brief) pause in the conversations about the ethics of transnational reproductive travel. However, there is no doubt that the authors will continue the conversations internal to their own work, and others will now be able to join the conversations and move forward our understanding of the complex and often controversial aspects of transnational reproductive travel. By doing so, it can be hoped that we will continue to advance the protection and promotion of the interests of those who are most vulnerable in the context of such travel, owing to the discrete risks of exploitation, coercion, commodification, and inequity.
Françoise Baylis is a professor and Canada Research Chair in Bioethics and Philosophy at Dalhousie University. Her collected edition, with Carolyn McLeod, Family-Making: Contemporary Ethical Challenges (OUP 2014) includes a chapter on “Transnational Commercial Contract Pregnancy in India.”
Jocelyn Downie is a fellow of the Royal Society of Canada and the Canadian Academy of Health Sciences. She is also a professor in the Faculties of Law and Medicine at Dalhousie University and a faculty associate of the Dalhousie Health Law Institute. She has been the director of the Health Law Institute and a law clerk to Chief Justice Lamer of the Supreme Court of Canada. She has served as a member of such bodies as the National Blood Safety Council, the Royal Society of Canada Expert Panel on End-of-Life Decision-Making, the Experts Committee for Human Research Participant Protection in Canada, and the Committee of Inquiry on the Olivieri Case.