Should Surrogacy be legalized in Taiwan

 yenlin ku  27/05/2024

The Ministry of Health and Welfare introduced a draft revision of the Assisted Reproduction Act last week, adding a new chapter to legalize surrogacy. It specified that "surrogacy should be an altruistic act, not a commercial endeavor for profit." Accordingly, the draft recognizes the surrogate neither as the biological or legal mother of the child nor as a paid laborer. It prohibits the use of her eggs in the conception; and she must surrender motherhood to the intended parents at the birth of the child. Yet she could receive no wage except a limited amount of compensation for nutrition or supplements, required counseling, medical care, transportation, insurance, and loss of work hours. However, she is obliged to perform motherly duties and adhere to the Protection of Children and Youths Welfare and Rights Act, refraining from tobacco and alcohol. Moreover, on top of previous experience of pregnancy and childbirth, she must work non-stop for over nine months at the risk of her own life and health.

      When surrogate mothers are demanded to act altruistically, should all the other actors involved, i.e. medical professionals, brokers, counselors, lawyers and so on, be subject to the same altruistic principle? If it's deemed unreasonable to dictate their free services, why would it be acceptable to impose such request on women?

      In Taiwan, we heard talks of “right to surrogacy” or women’s reproductive right as women’s human right. While it is certainly unfortunate for individuals longing for offspring but unable to conceive, the question arises whether one has the right to use other than her own (or his spouse’s) uterus to fulfill personal wish. The answer is no. The reproductive rights specified in the 1979 CEDAW (UN Convention on the Elimination of All Forms of Discrimination Against Women) and the 1994 Cairo Conference contain women’s rights to safe and healthy pregnancy and birth, decision on number of children to have, timing of getting pregnant, etc. Access to surrogacy is not one of them. Then should surrogacy become a paid service?

      Except for California and New York, where commercial surrogacy is legal but highly costly, the international supply chain of surrogacy, legal or underground, are mostly found in impoverished areas where compliant, low-income women are recruited to do the work. Frequent legal disputes resulted from the complexities of baby production and transaction. Since 2015, commercial surrogacy hubs like India and Thailand have enacted laws to ban commercial and cross-border surrogacy, yet there are always new countries entering the market. But they are few in number.

Most countries in the world, including Germany, France, Italy, Switzerland, Sweden, Finland, Norway and Japan, forbid surrogacy. Others, such as the UK, Australia, the Netherlands and Canada, permits only altruistic surrogacy, which is strictly regulated. There are many practices we can learn from them should surrogacy be legalized here. 

To prevent altruistic surrogacy from being manipulated into a commercial activity driven by market forces, these countries have set up regulations that respect the surrogate's status as the mother, while the interests of her and her family are safeguarded. She is recognized as the newborn's biological and legal mother in order to make sure that she relinquishes her parental rights of her own will. Services are closely monitored, and egg donors, intended parents, surrogates and their spouses must undergo independent psychological, physiological, and legal counseling. Independence ensures there is no interest transferred between counselors and service providers (both individuals and institutions). Brokers and advertisements are strictly regulated or prohibited, with violators facing penalties. The number of medical facilities involved in surrogacy is highly restricted in certain countries. The Human Fertilisation and Embryology Authority (HFEA) of UK mandates that no more than half of its committee members may be physicians or related professionals, and they may not serve as chairpersons or vice-chairpersons in order to prevent them from playing a dominant role in decision-making.

If the government genuinely upholds altruistic principles, the draft should be amended at least in the following ways:

1.     Recognize the surrogate's body integrity and status of legal motherhood. Cesarean section should not be performed unless medically necessary.

2.     Avoid evolving into a profit-driven surrogate industry. Independent from hospitals operating surrogacy, intermediary agencies and counseling services must charge no fees for their work. Advertising should be prohibited.

3.     Consultation committee for assisted reproduction technologies should be open to public scrutiny and include surrogates as its members.