Is the surrogacy industry a reproductive venture?

Commercial surrogacy is neither legal nor illegal in Uganda. However, it is flourishing. In an economy like the one we live in, imagine earning Shs6 million per month for all the nine months you are pregnant. 

Shs5 million is the monthly fee, while Shs1 million is a stipend to take care of your needs. At the end of the pregnancy, you hand over the baby and walk away with Shs54 million. And that is on the low end. However, it is one of the easier ways to climb out of poverty now.  

Alice* is over 20 weeks into her pregnancy. Although she has two children, she chose to be a surrogate mother and offer her womb for rent to make a difference in the lives of a couple struggling with infertility.

“At the time of conception, when the embryo was being transferred into my uterus, the intended parents were watching the procedure on a video call. It felt like it was an exciting moment for them. But, it was a little uncomfortable for me,” she recalls.

She got to know about the opportunity of becoming a surrogate mother through a friend. After she applied, her pregnancy and delivery records were reviewed, and her current health status and emotional stability elevated.

“I have a regular job and my salary can pay my bills. However, I needed that extra money. They visited my home to make sure it was clean and safe, and that my family supported my decision. There were a lot of steps before I was chosen by my intended parents,” Alice adds.

About the terms of agreement in the surrogacy contract, Alice says it was a very long document but her lawyer reviewed it with her and made sure she fully understood it.

“The contract discusses my responsibilities and the payments. Even though I have a case coordinator, I am grateful that I have my own lawyer to advocate for me. The intended parents are often on video call whenever I go for antenatal visits,” she remarks. 

In a world where the desire for parenthood clashes with the harsh realities of infertility, surrogacy has emerged as a beacon of hope for many. 

As more couples turn to surrogate mothers to fulfill their dreams of family, the complexities of this arrangement - ranging from legal uncertainties to ethical dilemmas – are sparking debates across the nation.

Is it work like any other work?
Each surrogacy case is unique. In the developed world, where the surrogacy industry has been legalised, a surrogate mother can earn between USD $40,000 (Shs147 million) and USD $80,000 (Shs294 million) as base pay. She is also given a monthly allowance to cover maternity clothing and antenatal visits.

While Alice is employed, a number of surrogate mothers in Uganda are not in the job market. Surrogacy is their main source of income. Basically, ‘womb work’ is work like any other, according to Mercy Munduru, a feminist lawyer. 

“It comes down to choice. Women have a right to make a choice about what they do with their bodies. That cannot be taken away from them,” she says.

However, Munduru preaches caution and advises that more information about the surrogacy industry should be out in the open.

“There should be no room for exploitation, especially when you are dealing with an economy that pushes people to the edge. Many women are involved in it and are being exploited because they are not making informed choices. There should be adequate information about surrogacy and that information should not conflict with the values of the Women’s Movement,” she says.

The use of assisted reproductive technologies (ART) like surrogacy is shrouded in social stigma tied to cultural norms surrounding fertility. According to Resty Nalwanga, an advocate with Angualia Busiku & Co. Advocates, couples that have successfully conceived through ARTs often keep the information private, fearing criticism or judgment.

“Infertility carries a heavy burden in Ugandan society, and revealing that a child was delivered by a surrogate mother, invites questions that challenge the child’s legitimacy,” she says.

The judgments and stigma create a paradox where, despite societal pressure to bear children, those who use alternative methods are viewed with suspicion.

“Effort should be made to raise awareness about surrogacy and ARTs. By openly discussing the positive outcomes and addressing the social stigma head-on, there is hope that society will begin to embrace ARTs as a legitimate and empowering option for couples facing infertility,” Nalwanga adds.

Many religious groups oppose surrogacy, viewing it as interfering with the natural process of life. They argue that it raises moral and theological issues, particularly regarding the use of medical technology in reproduction.

At the beginning of this year, Pope Francis strongly condemned the practice of surrogacy, terming it as ‘deplorable.’ He called for a universal ban on surrogate motherhood. 

“I deem deplorable the practice of so-called surrogate motherhood, which represents a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother’s material needs. A child is always a gift and never the basis of a commercial contract,” Pope Francis was quoted as saying at the time.

The 87-year-old prelate, in an annual foreign policy address to diplomatic envoys accredited to the Vatican, said surrogate motherhoods is on his list of threats to global peace and human dignity.

Some countries, such as Spain, Italy and Taiwan have banned the practice over ethical concerns over its commercial nature. Other countries only allow surrogacy if a woman who is going to carry the embryo is not paid.  

What the law says 
A surrogacy contract between an intending parent and a surrogate mother typically outlines the rights, responsibilities, and expectations of all parties involved. In the agreement, the surrogate mother confirms that she is healthy and capable of bearing a child without unreasonable risk to herself and the child.

Daniel Angualia, the managing partner at Angualia Busiku & Co. Advocates, says the contract should explicitly state that upon birth, the intended parents will assume full legal and parental rights over the child.

“The agreement stipulates the intended parent’s obligation to bear all medical and related costs during the pregnancy, including antenatal care, delivery, and postpartum care. They should also commit to accept parental responsibility for the child after birth, regardless of the child’s sex, health condition or any genetic abnormalities,” he says. 

Asked whether the terms of the contract are usually met Angualia affirms that they are legally binding.

“The nature of the agreement fosters a strong commitment to the terms and the clarity of responsibilities often prevents misunderstandings. Also, surrogacy is driven by a deep desire to bring a child into the world. The emotional investment encourages both parties to honor the agreement,” he says.

In the absence of effective regulation in terms of a substantive law and guidelines on how the business should be conducted, many clinics have been self-regulating. Such an environment creates fertile ground for exploitation.

The lack of a law that stipulates offenses and punishments means it is almost impossible to prosecute unethical practices. The surrogacy industry has gone unregulated for nearly 20 years now.

“There have been cases of physicians exploiting vulnerable patients in need of ARTs. Many surrogates are not fully aware of the medical procedures or psychological demand involved or required of them. Some do not feel the need to seek legal representation because they are enticed by the financial incentives,” Angualia notes.

Early this year, Hon Sarah Opendi (Woman Member of Parliament for Tororo district, introduced the Human Assisted Reproductive Technology (HART) Bill, which seeks to regulate human assisted reproductive technology in Uganda, provide for the designation of health units as fertility centres, and provide for the establishment of sperm, oocyte and embryo banks within fertility centers.

The Bill further seeks to designate the rights and duties of the persons involved, the donation and storage of gametes and embryos, and to protect the rights of a child born through human assisted reproductive technology.

“The bill provides that an intending parent shall provide medical care for a surrogate mother during surrogacy. This disadvantages the surrogate mother. We propose that medical care should be extended for a period outside surrogacy in unfortunate situations where the surrogate mother develops complications as a result of surrogacy arrangement,” Nalwanga advises.

Hope for infertile couples
Lisa Starks Hughes has been a surrogate two times. The first time, she carried twins and the second time, she carried a single baby.

“It is a very powerful feeling to know that I have made such a difference in someone’s life. The first pregnancy was an easy one, but for the second one, I had an emergency C-section because it was a breech. 

Hughes is a mother of six biological children and a grandmother. She is the founder and chief executive officer of Gestational Surrogate Moms Inc. established 14 years ago in the United States of America.

“The surrogacy experience blessed my life. Without it, I would not have gone to law school and I would not have started my company. I would not be on the international ethics boards that I am on,” she says.

Gestational surrogacy is the commonest type of surrogacy, where a fertilised embryo(s) is inserted into the surrogate’s uterus. Dr Edward Tamale-Sali, a gynecologist and co-founder of Women's Hospital International and Fertility Centre, says the baby does not carry the surrogate’s DNA.

“The surrogate goes through a series of tests for HIV, hepatitis, and history of mental illness. Her social background is also checked. We do not take women who have never given birth because surrogacy, like any other pregnancy, can compromise their fertility if they get complications. One can only be surrogate twice,” he says.

Contrary to the practice in some countries, surrogates are free to live in their own homes and can enjoy sexual relationships with their husbands while pregnant if they wish to.

One of the reasons the proponents against the surrogate industry give is that when a woman carries a baby for nine months and risks her life giving birth to it, an attachment develops automatically.

“That is a common misconception. People try to make surrogacy similar to carrying your own baby. Attachment is an emotional process that begins in your brain when you realise you are pregnant. With surrogacy, you meet the intended parents prior to becoming pregnant. The baby is not genetically related to you,” Hughes says.

She advises that the intended parents should, if possible, be in the delivery room to experience their baby’s birth.

“That moment is beautiful and powerful and will be remembered by the surrogate for the rest of her life. From that moment, she knows she made a positive difference in the world. Not many people get to know they made the world a better place,” she says.

Some doctors have decided that a surrogate should not experience delivery and it is better that she be put to sleep and wake up not pregnant. Hughes says that is a mistake.

“Not letting the surrogate experience delivery creates a lack of closure, a sense of loss, and leaves her vulnerable to postpartum depression. Education and regulation can help protect surrogates from these misconceptions,” she says.

She also warns that C-sections should not be mandatory or the standard for surrogate deliveries. 

“In a country like Uganda where families are often large, future pregnancies need to be considered and a major surgery like a cesarean section should be reserved for medical necessity only,” she says.

Through her company, Hughes has assisted 2,731 families from all over the world to achieve their dream of having children through ethical surrogacy. She is on the board of the Society for Ethics in Egg Donation and Surrogacy, and the International Surrogacy Board.

In Uganda, as in many parts of the world, the pursuit of parenthood is personal and often challenging. The advent of HART will offer newfound hope and possibilities. 

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*Names changed to protect the identity of the source.