TAIPEI (TVBS News) — Surrogacy has recently made the news in Taiwan amid a renewed push to amend the Assisted Reproductive Act (人工生殖法). Whether to legalize surrogacy has been fiercely debated in Taiwan for over two decades. It is currently being spearheaded by figures such as Chen Gau-tzu (陳昭姿), a legislator with the Taiwan People's Party (民眾黨). However, some in Taiwanese society are strongly opposed to it, particularly women's rights groups. It's a debate at the confluence of medical ethics, the right to bear children, and Taiwan's dismally low birth rate.
What exactly is surrogacy? It is an arrangement in which a woman agrees to carry a child that will then legally belong to someone else after birth. Often, the intended mother or another woman provides the egg, rather than the surrogate. The practice is highly controversial, which is why it is only legal in 12 countries.
Some countries, such as parts of the United States or Russia, allow for commercial surrogacy, meaning that women receive payment for being a surrogate. Other countries, including Canada, Australia, and India only allow for "altruistic" surrogacy without financial gain. Some argue, however, that financial and commercial practices are not always easy to distinguish. Many more countries lack legal regulations on surrogacy.
Since the practice is not legal within their country, Taiwanese pursuing surrogacy must go overseas to find surrogate mothers and enter into an international surrogacy arrangement (ISA) with them. Legal issues are common due to differences in legal systems across countries and the lack of legal certainty surrounding these international arrangements. For example, in the absence of clear regulations, local authorities might consider a surrogate the child’s legal parent, even if the surrogate is not biologically related.
A major reason for this hesitation to legalize surrogacy is that no matter who provides the genetic material or the state of local healthcare, being pregnant and giving birth remains a highly risky medical procedure. Hemorrhages, hypertension, and postpartum depression can happen to anyone giving birth, not to mention death. Some doctors consider it medically unethical for this reason.
They also argue that surrogacy reduces someone's uterus to a tool that can be commoditized, much like selling an organ (which is illegal nearly everywhere). Advocates against surrogacy say that legalizing it across the world could lead to an industry in which women from poorer countries feel pressure to put their bodies at risk to act as wombs for people in wealthier countries. As one doctor wrote in a recent editorial, the discussion today may focus on the uterus, but what other bodily organs could become commodities next?
Others, however, say that legalizing surrogacy would allow those unable to have children to fulfill their right to become biological parents. Chen, for example, said that she became an advocate for this issue because of her own experience with infertility. Many women cannot conceive children for a range of reasons, including structural problems with the uterus, advanced age, or medical conditions that would make pregnancy dangerous. Surrogacy would also provide a way for gay male couples or single men to raise their own biological children.
It can also be argued that legalizing would make the industry safer through open regulation. After all, plenty of people find ways to access surrogacy despite it being illegal in most countries. Surrogate mothers may be more likely to encounter abuses if the entire industry is pushed underground. Banning surrogacy completely in one country pushes people to find it in another, one that may have less safeguards for the women serving as surrogates.
The debate surrounding surrogacy is further complicated by Taiwanese politics and its shrinking number of births. Taiwan now ranks as the country with the world's lowest birth rate, at 4.62 births per 1000 people, lower than South Korea's and Japan's. The Taiwanese government has been searching for ways to reverse this decline, including by amending the Assisted Reproductive Act (人工生殖法) to allow single women and lesbian couples to obtain IVF treatment.
However, both of Taiwan's opposition parties have submitted their own interpretations of the updated bill: the TPP has proposed a draft that includes surrogacy access, and the Kuomintang (KMT, 國民黨) has submitted a version focusing only on surrogacy and not IVF access. This has made surrogacy a political issue that has also swept up the expansion of IVF services.
It remains questionable whether opening up surrogacy would make an impact in reversing Taiwan's aging population, especially since many people also end up not having children by choice, or because of factors such as long work hours.
If Taiwan were to legalize surrogacy, it could opt for allowing it just for some instances, such as if the intended mother cannot have children for medical reasons. Taiwan could also create strong protections, particularly for commercial surrogacy. Legal frameworks could also be created to protect surrogate mothers, including by stipulating that payments are made before transferring the child and remain non-refundable. They could also mandate insurance coverage payments for surrogates and guarantees of their health autonomy.
Legalizing surrogacy is not a simple yes-or-no question, as Taiwan could pursue different degrees of access and levels of regulation. Whether Taiwanese authorities allow it to come to pass or not, however, it is likely to remain controversial regardless.