Should Singapore legalize surrogacy to better protect all parties involved?

[Angelica Cheng]

https://pubmed.ncbi.nlm.nih.gov/36493695/
Dear Editor,

I read with great interest, the case report of a tragic maternal death in Sri Lanka arising from unregulated surrogacy.1 Such an unfortunate incident may have been avoided if there had been proper healthcare regulations in place for surrogacy that would require prior medical screening of prospective surrogate mothers. Indeed, this case more than ever highlights the risks that unregulated surrogacy poses to all parties involved, particularly poorer women from economically less-developed countries. Currently, there is an increasing global trend of richer countries outsourcing surrogacy to poorer countries, which has generated much controversy.2,3 One prime example is Singapore, an affluent city-state in Southeast Asia with ultra-low fertility rates. To evade the ban on surrogacy within the country,4 some Singaporean couples travel abroad to do the procedure overseas, but often face legal hurdles in applying for adoption, residency, and citizenship for their surrogate child.5

Although Singapore has increasingly leveraged on new assisted reproductive technologies to boost its fertility rate,6 surrogacy has largely been overlooked, probably because of its many thorny legal and ethical issues,7 in addition to strong objections from various local religious groups.8 From time to time, the issue of permitting surrogacy in Singapore would surface, whenever some controversial cases appear in the news that highlights the risks that local couples and their surrogate child face when the procedure is being done overseas. For example, when Cambodia suddenly instituted a temporary ban on all surrogacy arrangements in November 2016, many foreign couples were left in legal limbo and were unable to obtain travel documents to bring home their surrogate child.9

An even more notorious and controversial case is that of baby Gammy, a Down syndrome child born in December 2013 to a Thai surrogate mother who refused to abort him after positive prenatal testing, and who was subsequently abandoned by his commissioning Australian parents.10 Besides obvious moral and ethical issues related to abortion and the abandonment of a disabled child, the case also elicited much controversy over the exploitation of economically-disadvantaged women from poorer countries, which led the Thai government to ban surrogacy arrangements involving foreigners.11

By legalizing the procedure, the Singapore government can ensure its stringent regulation, which would protect all parties involved. Hence, it is imperative to look at pertinent safeguards to prevent similar occurrences of the baby Gammy saga and other controversial cases, if surrogacy is to be permitted in the country. For example, before any surrogacy arrangement can proceed, it must be mandated that the surrogate mother and commissioning couple should first make a formal but non-legally binding agreement on what to do if prenatal testing or birth were to reveal congenital deformities. Whether to abort the unborn child, continue with the pregnancy and accept it after birth, or give it up for institutionalization or adoption. This still needs to be documented, signed and notarized, in case of future disagreement that would require arbitration by social workers and/or legal professionals.

 

[Angelica Cheng]

Although preimplantation genetic testing (PGT) of IVF embryos can certainly avoid genetic defects such as Down syndrome,12 it cannot prevent congenital deformities that are partly or wholly attributed to environmental factors during pregnancy, such as spina bifida,13 atrial septal defect (hole in the heart),14 cerebral palsy15 and fetal alcohol syndrome.16 Professional counseling should therefore be provided to both the surrogate mother and commissioning parents to facilitate reaching a consensus between both parties. It is not possible to have a formal legally-binding agreement in place to abort the fetus in the event of a positive diagnosis of congenital defects. This would be difficult to enforce if the surrogate mother suddenly has a change of heart in refusing to terminate her pregnancy. Any putative legally-binding agreement made for such purpose can easily be challenged in the common law jurisdiction of Singapore courts based on human rights violation of the surrogate mother, and be declared null and void.

In any case, if the surrogate child is born with congenital deformities and the commissioning couple refuses to accept it, they should be made financially liable for the high cost of its "special needs" upbringing, upon deciding to give up the child for institutionalization or adoption. Because forcing the commissioning couple to accept the disabled child would not be in its best interest, and would likely lead to neglect and abuse. At the same time, it would be grossly unfair for the government/ taxpayer to pick up the bill for the upbringing of a disabled child within state orphanage. After all, it must be noted that in a conservative Asian society like Singapore, there are hardly any local couples who would be willing to adopt a child with disabilities.

Another contentious issue in surrogacy is the exploitation of economically disadvantaged women from poorer countries. To avoid this, Singapore should permit only its citizens and permanent residents to act as surrogate mothers. The only exception being foreigners who are close relatives of the commissioning couple which can be confirmed by DNA testing. This should also apply to foreign patients such as expatriate workers, who are seeking surrogacy arrangements in Singapore. Moreover, there is also a risk that if foreign women are permitted to act as surrogate mothers for Singaporean couples, they can easily abscond back to their home country with either the unborn child or a newborn infant. This could in turn lead to a legal tug-of-war for child custody across international borders, which may be further complicated by different jurisdictional views on the legality of surrogacy arrangements. Worse still, the occurrence of such high-profile court cases might sour diplomatic relations between Singapore and the errant surrogate mother’s country of origin. It must be noted that to date, there have already been some court cases involving surrogate mothers refusing to relinquish child custody to commissioning parents.17,18

Yet another controversial issue that Singapore must resolve when deciding to permit surrogacy, is whether surrogate mothers should receive substantial financial remuneration or should instead be altruistically motivated.19,20 On the one hand, it can be argued that there should be fair monetary compensation to surrogate mothers for the risks, pains, and burdens that they must undertake during pregnancy and childbirth. On the other hand, it is often counter-argued that the presence of financial inducements would inevitably entice poorer women to act as surrogate mothers for the rich.19,20 There is also the risk that if altruistic surrogacy is mandated, this could lead to commissioning couples surreptitiously making illicit under-the-table monetary payments to surrogate mothers.

Because there is already the precedent of Singapore legalizing compensation payments to kidney donors more than a decade ago,21 there would most likely be substantial financial remuneration for surrogate mothers, if surrogacy is ultimately permitted in Singapore. In that case, the concern here is not so much monetary payment to surrogate mothers, but instead the presence of exploitative third parties who can unscrupulously profit from surrogacy arrangements.22 For example, private commercial agencies sourcing prospective surrogate mothers for childless couples. In other countries with lax regulation of the medical profession, doctors and fertility clinics can themselves act as third-party agents to source surrogate mothers for their patients,22 thereby earning additional brokerage and transaction profits above substantial medical fees. Hence, Singapore should explicitly ban healthcare professionals and institutions from soliciting surrogate mothers on behalf of their patients, due to undeniable conflicts of interest. Instead, the prerogative of soliciting surrogate mothers and managing their financial remuneration should be handled by an independent government-controlled agency that is specially set up for this purpose.

Then, there are also other potential unethical surrogacy practices by fertility doctors and clinics that can be prevented by the implementation of strict regulations. For example, the non-judicious use of surrogacy by healthy and fertile women to avoid pregnancy and childbirth for spurious reasons, such as to preserve their beauty or to advance their careers.23 Very often, such women connive with unethical doctors to conjure up a medically-valid reason for surrogacy.
In many countries with lax medical regulations, fertility doctors often non-judiciously use IVF procedures and high dosages of hormone stimulation in traditional surrogacy whereby the eggs of the surrogate mother are utilized, instead of that of the commissioning mother. The pertinent question that arises here is whether it is medically necessary to use such expensive, grueling, invasive, and risky medical procedures on a healthy and fertile surrogate mother, where much cheaper intrauterine insemination (IUI) with the husband’s sperm would suffice to do the job.24

Yet another unethical practice is to unnecessarily use donated eggs from a third woman in traditional surrogacy when the eggs of the healthy and fertile surrogate mother would suffice. In this case, are the commissioning parents trying to seek "superior designer" genes from an egg donor over the supposedly "inferior" genes of the surrogate mother from a poorer socioeconomic background?

In conclusion, there are indeed many legal and ethical challenges that Singapore would face in attempting to legalize surrogacy to afford better protection for all parties involved. Perhaps to nip all unethical practices in the bud and keep fertility doctors and clinics in check, Singapore could consider permitting surrogacy on a case-by-case basis that is vetted and scrutinized by the Ministry of Health for each patient.25 Given the extremely small number of childless couples in Singapore that would likely require surrogacy, this would not represent much of an administrative burden and bureaucratic hurdle.

 

[Angelica Cheng]

In some Western societies, surrogacy arrangements are accepted. But Singapore has to find its own balance between allowing parents this option while preventing abuse of this practice, which can be exploitative of poor women.

When reality star Kim Kardashian gave birth to her first child North six years ago, she had to deal with placenta accreta, a condition that can cause complications during pregnancy in which all or part of the placenta attaches to the womb.

"My doctor had to stick his entire arm in me and detach the placenta with his hand, scraping it away from my uterus with his fingernails. How disgusting and painful," she said on her blog, calling her daughter North's birth "the most painful experience of my life".

She also experienced similar issues when she gave birth to her second child in 2015. So when she wanted to try for another child in 2017 , Kardashian and her rapper husband Kanye West decided she would not carry the child on her own.

Instead, an egg from Kardashian, that was fertilised with West's sperm, was implanted into the womb of a surrogate mother, a method known as gestational surrogacy in which a woman carries a baby who has no biological relationship with her. Traditional surrogacy, on the other hand, involves artificially inseminating the surrogate's own egg with the intended father's sperm, or with a donor's sperm.

According to reports, the surrogacy agency was paid a fee of US$68,000 (S$92,000), while the surrogate mother - a married housewife - received US$45,000.

Earlier this month, Kardashian announced that she is expecting a fourth child through surrogacy.

In the United States, where commercial surrogacy is legalised in some states, such arrangements have become more common over the years.

But should Singapore attempt to keep up with the Kardashians when it comes to the issue of allowing for surrogacy to take place here?

The issue was brought back into the public spotlight last month when the High Court granted a gay man's appeal to adopt his five-year-old biological child, who was conceived through commercial surrogacy in the United States. This will make it easier for the child, now an American citizen, to secure Singapore citizenship.

It has exposed grey areas in Singapore's regulation of surrogacy, and led some commentators to call for more clarity on the Government's stance on this issue.

Though Singapore does not have explicit laws against surrogacy here, the Ministry of Health (MOH) prohibits licensed healthcare institutions from carrying out surrogacy arrangements. Over the last decade, though, the Ministry of Social and Family Development has backed adoption bids by 10 married couples who had gone for surrogacy services abroad.

Following the High Court ruling, Minister for Social and Family Development Desmond Lee also said in Parliament this week that the authorities here will look into the complex issue of surrogacy, which has "ethical, social, health and legal implications for all parties involved''.

"Whether we should completely prohibit surrogacy by Singaporeans within Singapore or all over the world... it's something that we must consider holistically and carefully, keeping in mind the wishes, aspirations and concerns of mothers who would otherwise not be able to conceive their own flesh and blood," he said, adding that adoption laws are also being reviewed.

As the Government ponders how Singapore should deal with surrogacy, and perhaps introduce guidelines that can better regulate existing practices, here are three issues that analysts say should be addressed:

1. SHOULD OVERSEAS SURROGACY BE DISCOURAGED?
If the Government allows children who have been conceived abroad through surrogacy to be adopted by their parents here, or grants them Singapore citizenship, it may have the unintended effect of encouraging citizens to pursue overseas surrogacy even if this is not condoned currently, says Singapore Management University (SMU) law professor Tan Seow Hon.

"As a result, the Government indirectly fuels the surrogacy industry and becomes complicit in ethical problems associated with surrogacy," she points out.

If the ethical problems associated with surrogacy are serious enough, the Government may choose to take action, such as by amending adoption laws to specifically prohibit adoption in surrogacy cases, she suggests, thus refusing to legitimise the parent-child relationship. This could then deter many from seeking surrogacy, she says.

If Singapore wants to crack down on such overseas arrangements, it may follow Australian states such as Queensland and New South Wales, which have made it an offence for residents to make commercial surrogacy arrangements in a foreign country.

But SMU law don Eugene Tan points out that such restrictions may not be effective in preventing hopeful parents from pursuing surrogacy, as some may just ignore the local prohibition despite potential penalties.

"People can and will pursue such transactions abroad and policing it is a challenge even if it is outlawed. If the relevant parties do not disclose a surrogacy, the Government will be none the wiser."

If the Government wants to permit Singaporeans to pursue surrogacy arrangements abroad, says veteran family lawyer Rajan Chettiar, proper guidelines should be introduced to better regulate the situation.

For instance, it can put up a list of approved countries where such services can be pursued by Singaporeans to ensure that such transactions comply with standards set by the Government, and provisions should be made for a child to be adopted by a couple when they return to Singapore.

A commissioning couple should also make a declaration of how much they have paid, adds Mr Chettiar. Given that it may not always be feasible to enter into altruistic surrogacy arrangements abroad, the issue of payment requires further exploration.

2. SHOULD ONE PAY FOR SURROGACY SERVICES?
Commercial surrogacy involves a fee paid to the surrogate mother and is typically arranged by a broker. Last year, India's Lower House of Parliament passed a Bill that banned all forms of commercial surrogacy while allowing altruistic surrogacy for infertile, married Indian couples, following concerns about the exploitation of young, poor Indian women who bear babies for others.

National University of Singapore law professor Thio Li-ann says such arrangements raise troubling class issues. "Rich folk pay poor folk to be a baby container; the rich will be able to exploit the poor. The surrogacy option becomes a privilege for the wealthy," she adds, noting that the high cost involved in such transactions, which can go up to $200,000, is "prohibitive for most people".

International activists, however, have said that a ban may simply drive such transactions underground.

Though such a ban was enacted in 2016 in Cambodia, brokers and young women in the country continue to engage in such transactions for lucrative payouts from Chinese clients even at the risk of jail time, according to news agency reports.

3. CAN NON-COMMERCIAL SURROGACY BE ALLOWED?
SOME PEOPLE RECKON THAT SINCE IT IS INEVITABLE THAT SOME SINGAPOREANS WILL ENGAGE IN SURROGACY, IT IS BETTER TO SET SOME RULES TO GOVERN THIS PRACTICE.

Mr Chettiar suggests that just as the Singapore Government has addressed potential ethical issues over adoption by having strict regulations against financial incentives and requiring comprehensive checks on parents, the same could be done for surrogacy.

As a first step to take, Singapore could look into allowing for altruistic surrogacy to take place domestically, where the surrogate mother is not paid or paid only for reasonable expenses, he adds. This is allowed in countries like Denmark and Belgium.

But Prof Tan Seow Hon points out that under one possible form of altruistic surrogacy, in which close relatives are asked to be surrogates for family members, some women may feel pressured into being surrogates.

It could also pose other complications, she notes. "What if the surrogate does not want to hand the child over because of her maternal bonds? If the law allows the surrogate to retain the child, it is not fair to the commissioning parents who provided the gametes (egg and sperm), but if the law takes the child from the surrogate, why should a gestational mother be treated as less than the genetic mother? There is no easy way to resolve the ethical dilemma."

Dr Chia Shi Lu, chairman of the Government Parliamentary Committee for Health and an MP for Tanjong Pagar GRC, adds that clear definitions will have to be laid out to differentiate commercial transactions from altruistic ones if altruistic surrogacy is allowed.

"Even if you don't pay a sum of money (to the gestational mother)... would other expenses after the child has been delivered, such as hiring a maid for the surrogate or giving her a place to stay for a few years, be seen as financial incentives?"

To prevent a "slippery slope" of surrogacy backsliding into a selfish and convenient lifestyle option rather than medical necessity to have children, researcher Alexis Heng proposed - in a paper back in 2007 - that the MOH should review and approve surrogacy on a case-by-case basis for each and every individual patient if it is allowed here.

"Otherwise, the younger generation of Singaporean women might be encouraged to delay marriage and motherhood in pursuit of educational and career commitments if they realise that they can easily and conveniently opt to start a family later with gestational surrogates," he said.

Still, surrogacy can be a sensitive issue in Singapore's multi-religious context, as Islam and the Catholic faith may not condone surrogacy, says Mr Chettiar. "On that basis, it could be difficult for the Government ( to take a stand), and it may need to talk to the groups to engage them if it does make a decision."