What About Child Rights in Surrogacy? by Catherine Lynch

While reproductive technologies are often discussed in terms of the rights of adults to have children, there is very little discussion from the perspective of the child born of such technologies. In recent years a substantial international market for surrogacy mushroomed in India. Surrogacy is regulated or banned in most developed countries, but it was only last year that the Indian government stepped in with a draft Bill to regulate surrogacy. The Bill proposes to ban commercial and international commissioning of surrogacy, and permit only altruistic surrogacy between close relatives resident here. In this essay, Australian lawyer and adoptee rights activist Dr Catherine Lynch discusses the ethics of surrogacy, making a child-centered case for the abolition of all forms of surrogacy. A version of this article was first published on 28 October 2017 with the title Ethical case for abolishing all forms of surrogacy  in the Sunday Guardian as part of its ongoing series with us called ‘Global Child Rights, and Wrongs’.


ALL surrogacy is cruel to human infants because

even so-called “altruistic surrogacy” demands the

removal of the neonate from her or his gestational

mother when every aspect, every cell, every desire of

that neonate, is geared toward being on the body of

the gestational mother, to suckle and seek comfort

and safety.


          As an adoptee, I was removed at birth from my

gestational mother, her breasts bound for three days

in another room while I screamed for her, and my

hospital records record my growing distress.


          Adoptees around the world testify to their battles with depression and rage, difficulties in

trusting and attachment, and a profound sense of loss and grief caused by the loss of their mothers at



          Scientific studies prove that maternal-neonate separation in the crucial months after birth disturbs the baby’s

heart rate and sleep and other biological systems, predisposing the child to difficulties later in life which can include

relationship and emotional difficulties, mental disorders and illnesses. In taking a child-centered view of surrogacy, we

must take into account what we know of the trauma and confusion of separation from the natural family, especially from

the birth mother, experienced by adoptees.


          The argument that surrogacy can be ethical, as long as it is not commercial and is done “altruistically” for a relative

or friend, does not hold up under inquiry. Kajsa Ekis Ekman in Being and Being Bought; prostitution, surrogacy and the

split self  points out that “if the procedure is legalized – a woman will bear a child as laid out in a contract – the risk that

a black market will develop increases… Just as trafficking is a consequence of prostitution, commercial and altruistic

surrogacy are different levels on the same scale.” In Australia, Ekman’s claim has been borne out. We are the largest

consumers of overseas surrogacy despite altruistic surrogacy remaining legal in Australia. Americans and Britons are

also dominant amongst foreign buyers in India despite commercial surrogacy being legal in their own countries or



          So not only is there “no proof that altruistic surrogacy will hold back the commercial market”, but Ekman also

points out that all women get paid in surrogacy anyway. For example with holidays, a new wardrobe, school fees for the

gestational mother’s other children, and so on.


          Whether surrogacy is altruistic (in whatever limited sense) or commercial, the fundamental ethical issues remains

the same. Ekman sums this up well: “the woman is reduced to a container… Pregnancy is made into a function that

serves others. Functionalisation always precedes commercialization, as we have seen in prostitution. In order for

something to be sold as separate from the seller, it must first be constituted as a separate function. What happens in the

rhetoric of altruistic surrogacy is that it subversively accustoms people to seeing pregnancy as something a woman can

lend to others – if she is not selling it.”



          The term “altruistic surrogacy” does not reflect in any way the neonatal baby’s experience of the surrogacy.  This

shows a tragic failure of empathy between adults and children that is mirrored in other terms used in surrogacy

parlance. For example, “traditional” surrogacy is used to describe the abandonment of a woman’s own child created

from her own egg. It certainly is not traditional inasmuch as it began with modern reproductive technologies. Otherwise

the handing over of the baby is simply no different from “traditional” child abandonment or adoption.



          “Gestational carrier” is used to describe the mother whose child originated as a donated or bought embryo. The

latter situation has the compounding problem, for the child so created, of splitting her or his “biological mother” in two:

something never done before in the history of humankind. In the rush to embrace advances in reproductive technology,

little consideration has been given to how this places the child in a moral and existential conundrum.



          When the commissioning parent is not the donor, this causes yet another fracturing in the child’s identity between

its genetic, gestational and legal parents. Such surrogate children are biologically unrelated in any way to their legal

parents. With this comes the loss of identity: the forced ignorance of the self and of basic kinship and ancestral

structures. This self-knowledge – so important and so intrinsic to self-identity – creates a sense of belonging and

meaningful living within the fabric of kinship/familial connection and has been central to human culture for millennia.


          Surrogacy Australia, an Australian pro-surrogacy NGO, argues that permitting and regulating commercial

surrogacy in Australia will provide safeguards for the rights of children by preventing people taking them from overseas.

But when the rights and interests of newborn babies are prioritized and duly considered as they must be, then it is

obvious that it is surrogacy itself which violates children’s rights and functions against their interests. Legalising

commercial surrogacy only takes this commodification of people and the exploitation of women to its extreme. Human

beings should never be supported by governments to be for rent or sale. Commercial surrogacy should be unthinkable in

a modern society that assumes it is on some sort of path toward a greater or “better” humanity.


          The process of modernisation with its development of reproductive technologies has been liberating in many

respects but without laws to prevent this process being taken to the extreme, liberation could be so relentlessly

modernising as to cut people off from the ways of their ancestors and take away their reasons for living. Surrogacy does

just this, cutting people off not only from their distant ancestors in most cases, but also, in every case, from the person

closest to them: the birthing mother. Either, in the rare instance, forcing her to be merely a visitor or onlooker in the life

of her child or, as in the majority of cases, erasing her altogether.


          The gestational mother is the only person the child knows when they are born. For every single child, their

“mother” is acknowledged as the woman who created that baby by taking them from embryo to fully formed infant,

throughout nine months of symbiotic gestation, establishing that person’s first relationship with a human adult, the

destruction of which damages both mother and child.


          The gestational mother is the natural parent of her own child, whether or not she used her own eggs or implanted

a donor embryo.  It is urgent that nations around the world bring in legislation that enacts the rights of children under

the United Nations Convention on the Rights of the Child which in Article 9 gives every human being the right not to be

separated from their parents. This legislation protection is best achieved by an explicit acknowledgement in domestic

laws that we stand by our commitment to respect the rights of every child to remain with and be brought up by their

gestational mother.


Dr. Catherine Lynch, JD is an Australian lawyer and scholar with several publications on the laws and ethics of adoption and surrogacy. She is the Founder of the Australian Adoptee Rights Action Group.


Kajsa Ekis Ekman, Being and Being Bought; prostitution, surrogacy and the split self, transl. Suzanne Martin Cheadle, (North Melbourne: Spinifex Press, 2013). First published in Sweden, Leopard Forlag, 2010.
Amy Corderoy, “More parents defy law with overseas surrogacy” Sydney Morning Herald, September14, 2013. http://www.smh.com.au/national/more-parents-defy-law-with-overseas-surrogacy-20130913-2tq94.html.
Amrita Pande, “Not an angel, not a whore: Surrogates as “dirty” workers in India.” Indian Journal of Gender Studies 16, no. 2 (2009): 144-173. (Reference from Ekman, 161).