For the Australian couple Stephen and Michael, having kids involved people from five different countries. Australian law forbids anyone from contracting surrogates or paying women to have children for them, but Stephen and Michael knew other gay couples who’d found a workaround: In developing nations, laxer rules and bigger loopholes would allow them to hire a surrogate abroad. (Because the actions the fathers took are now considered illegal, the fathers’ names have been changed to protect their and their children’s identities.)
They’d heard that Nepal was a “safe and easy” option, and a place where surrogacy agencies from western countries with equally strict surrogacy laws had recently set up shop. So Stephen found Tammuz, an Israeli agency, which would help the couple have a child for $35,000. The sum would cover all expenses: the agent’s fee, the cost of the medical procedures like in-vitro fertilization, the surrogate’s medical expenses, and her take-home pay, which the Australians were told was $10,000.
The woman who would carry their child had been working as a maid in India, according to Stephen. Like he and Michael, she and her husband, a gardener, had turned to surrogacy to improve their young family: They hoped she could earn enough to send their teenage son to engineering school.
On January 10, 2015*, she came to Nepal to be impregnated with an embryo from Stephen’s sperm and a South African donor’s egg (a preference for racial similarity to parents means most eggs come from outside the region). “I was elated,” Stephen says of the moment, on August 29, when he became a father to twins, a boy and a girl. He and Michael had flown to Nepal two days earlier in preparation. But their bliss was short-lived.
Unbeknownst to the new parents, four days before the birth, Nepal's Supreme Court had placed a temporary ban on surrogacy. By September 2015, as Stephen and Michael were preparing their newborns for the journey home, the government decided to outlaw the practice altogether.
The government’s decision left the newborns in a legal black hole. Their parentage wasn’t in question: DNA tests (required for exit permits to leave the country) proved Stephen was the biological father, and the babies already had their Australian citizenship and passports. But the hastily written decision to ban surrogacy didn’t include any mention of what to do about babies already born or on the way. Because the babies’ births were now considered illegal, the Department of Immigration couldn’t issue them exit permits to leave Nepal. Nobody knew what to do with them—or with the dozens of other foreign babies born into the same situation.
Thirty years after the first surrogate baby was born, courts across the world still struggle to work out the morality of childbirth transactions. In the U.S. today, surrogacy laws vary widely by state: Just a few, like California and Connecticut, allow commercial surrogacy, in which surrogates are paid to carry a child. States like Arkansas and Florida allow such arrangements, but not for same-sex couples. Other states, like New York and Washington, only allow altruistic surrogacy, meaning the surrogate can only be compensated for medical expenses. Washington, D.C., and Michigan forbid any type of surrogacy arrangements.
Laws are similarly non-uniform around the globe, though very few countries allow commercial surrogacy. Ukraine and Georgia do, but only for heterosexual married couples. Greek law allows only altruistic surrogacy, but permits compensation for costs and lost wages. In Israel, only heterosexual couples unable to have children can engage in surrogacy, but the surrogate must be unmarried, already have a child of her own, and practice the same religion as the parents (among other restrictions). In Australia, which does permit altruistic surrogacy, paying someone to carry your child can carry a jail sentence of up to three years.
These restrictions, plus the prohibitively enormous cost of surrogacy in the U.S. (between $50,000 and $100,000), push many of the world’s hopeful parents down Stephen and Michael’s path to developing countries with less defined laws. Thailand used to serve a large portion of the international market, but the Thai government criminalized surrogacy by foreigners and same-sex couples in 2014, prompted by incidents of surrogate parents behaving badly. The most notable of those cases was that of Baby Gammy, a twin born with Down syndrome and left behind by the Australians who contracted his birth (his sister, who wasn’t born with the disorder, was taken home). It didn't help that Gammy's biological father was also a convicted sex offender.
India was the other legal surrogacy behemoth, where gestational dormitories housed groups of pregnant Indian women as their bellies swelled. But the industry lost a chunk of its market when the country banned surrogacy for gay couples and single parents in 2013 (around the same time India recriminalized gay sex). Recent revisions to the law have effectively banned foreigners altogether.
As India’s laws tightened, clinics there quietly began sending the Indian mothers to Nepal to give birth; many eventually shifted their entire operations over. The two countries share an open border, allowing citizens of either country to cross without registration. No laws existed on surrogacy in Nepal, so there were seemingly none to break.
Nepal’s underground surrogacy operations came to international light after the earthquake last April, when news reports detailed the evacuation of western babies born to surrogates. El Al flights swooped in to save Israeli babies, and got a lot of flak for leaving the surrogate mothers behind. But Nepali officials had known about the growing market since the previous November. After police began questioning groups of Indian women outside a hospital in Kathmandu, Nepal’s capital, a nearby clinic where many of the surrogacy procedures were also taking place convinced an official at the Ministry of Health and Population to write a letter supporting surrogacy and Nepal’s prospects for medical tourism.
The letter, which stipulated that only foreign women be surrogates, was legally meaningless, but it was enough for clinics to assure hopeful parents that Nepal was the new surrogacy destination. It also spurred the Nepali Cabinet to start seriously considering what to do. In the aftermath of the earthquake, the Ministry worried Nepal was too overwhelmed trying to handle its own citizens’ basic healthcare to provide medical tourism. By September 2015, surrogacy was outlawed and all earlier services were considered illegal, including the birth of Stephen and Michael’s twins.
Two months after their birth, Nepal finally made a provision to allow the twins (and any other surrogate baby conceived before the practice was outlawed) to go home.
Sam Everingham, the executive director of the Australian advocacy group Families Through Surrogacy, calls parents like Stephen and Michael “reproductive refugees,” boxed out of reproductive rights in their own countries, and chasing them through others. “Already we've seen a lot of those agencies that are in Nepal shift over to Cambodia,” Everingham said in October. With similarly murky legislation, Cambodian officials say they remain undecided on whether surrogacy constitutes human trafficking. Everingham believes it's only a matter of time before Cambodia officially outlaws the practice for foreigners. "It's a constant chase," he says.
Critics of surrogacy point to exploitation of poor people and the commodification of women's bodies, issues that are magnified when couples from wealthy nations can order babies from some of the poorest places on the planet. The average daily wage in Nepal hovers around $2. A surrogate typically makes around $3,500, and an additional $1,500 if she has to have a C-section. She might get around $1,000 in tips from the intended parents too. It’s not a huge sum, but it goes far in Nepal or India.
Hannah Giunta, a bioethicist in perinatal and neonatal medicine at Michigan State University, worries transnational arrangements allow people to view surrogacy as payment for a service or product. Giunta points to the lack of a relationship between many surrogates and families as a key concern. “People get hung up on the genetics,” she says, “but the truth is the person who carries your child for nine months, you should have more than a passing interest in them.”
Another question is whether the surrogate really has the ability to decide whether to use her body in this way. “The woman who’s in front of you may not be consenting because technically in her country she’s not able to consent,” explains Giunta. Consent can be especially muddied where cultural norms and social structure limit women’s decision-making ability in the family.
“The risk of exploitation is extremely high among the women from this part of the world, as they are poor, don’t have pre-informed choice, and are not part of any legal agreement that ensures their rights in the whole surrogacy process,” says Bandana Rana, a Nepali women’s rights activist and chair of the Global Network of Women Shelters.
Giunta says women who choose to perform surrogacy in these situations often do so out of desperation.
Nur Begum was desperate. She was one of several Indian women impregnated before the legal changes in Nepal who waited to give birth at a shelter for Tammuz surrogates (the agency Stephen and Michael used) outside Kathmandu. Married at 10 to a much older man in Bihar, one of the poorest states in India, Begum and her husband later moved to Delhi, where he drove a bicycle rickshaw and she worked as a maid.
Begum’s husband was sick and they couldn’t make ends meet. “One day at work, I found through my friend that if I lent my womb to give birth to a baby who will not be mine in any sense, I could get enough money to support my family,” the 26-year-old says. “There were no other options left.”
Begum doesn’t know the identity of the parents, and she doesn’t want to. “I just want money, give this baby, and go back,” she says.
“Everyone knows about surrogacy in India,” says Lucky, 37, who was recuperating at the same shelter after giving birth to twins for an American couple, her second time as a surrogate. Also a maid in Delhi, she used the $3,700 she earned the first time to pay for her two sons’ schooling, care for her in-laws, and pay her sister-in-law’s dowry, saving her from abuse by her own in-laws.
The twins’ parents, who had unsuccessfully tried to conceive for 15 years, were elated. “They were crying and that made me cry too,” Lucky says. The parents gave her an extra $700 and jewelry as a thank you. They also left her with a photo of the twins and a promise to share more. “The son looked liked his father, but the daughter looked like me,” she says.
Lucky plans to retire from surrogacy and hopes no one besides her husband ever finds out.
Doron Mamet, head of Tammuz, counters ethical arguments against surrogacy with the assertion that women should have the ability to make these tradeoffs for themselves. “It’s not like you’re telling her, ‘Listen, you can’t be a surrogate, I’m giving you this other opportunity. You’re telling her, ‘Don’t be a surrogate, but stay in your poor conditions,’” he says.
Stephen, who remained in touch with their surrogate, says since the birth of the twins, she and her husband have been able to leave their jobs. They used the money to buy a taxi for him to drive instead. Their son started his engineering course.
But whether this is enough of a tradeoff no longer matters in Nepal; the last baby conceived before the change in Nepali law was born May 5. (According to Kedar Neupane, Director General of Nepal’s Department of Immigration, 247 babies born to surrogate mothers in the country were issued exit permits between January 2014 and May 2016.) International surrogacy agencies are running out of new countries in which to push legal boundaries. Tammuz is now running sessions in Israel on surrogacy in Greece, though Greek law prohibits same-sex couples from taking part.
“I think in maybe 10 to 15 years surrogacy will not be available anywhere,” Mamet says, noting that in the U.S. there is opposition at both ends of the political spectrum. “The only group that wants it to continue are the people in need and the surrogates.”
* This article originally stated that the surrogate came to Nepal on January 10, 2014. We regret the error.