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Surrogacy is an arrangement whereby a woman gets pregnant and gives birth on behalf of another person or couple who will become the child's legal parents after birth. People pursue surrogacy for a variety of reasons such as infertility, dangers or undesirable factors of pregnancy, or when pregnancy is a medical impossibility. Surrogacy is highly controversial and only legal in twelve countries.
A surrogacy relationship or legal agreement contains the person who carries the pregnancy and gives birth and the person or persons who take custody of the child after birth. The person giving birth is the gestational carrier, sometimes referred to as the birth mother, surrogate mother or surrogate. Those taking custody are called the commissioning or intended parents. The biological mother may be the surrogate or the intended parent or neither. Gestational carriers are usually introduced to intended parents through third-party agencies, or other matching channels. They are usually required to participate in processes of insemination (no matter traditional or IVF), pregnancy, and delivery.
In surrogacy arrangements, monetary compensation may or may not be involved. Receiving money for the arrangement is known as commercial surrogacy. The legality and cost of surrogacy varies widely between jurisdictions, contributing to fertility tourism, and sometimes resulting in problematic international or interstate surrogacy arrangements. For example, those living in a country where surrogacy is banned travel to a jurisdiction that permits it. In some countries, surrogacy is legal if there is no financial gain.
Where commercial surrogacy is legal, third-party agencies may assist by finding a surrogate and arranging a surrogacy contract with her. These agencies often obtain medical tests to ensure healthy gestation and delivery. They also usually facilitate legal matters concerning the intended parents and the gestational carrier.
Insemination of the gestational carrier can be either through sex (natural insemination) or artificial insemination. Using the sperm of a donor results in a child who is not genetically related to the intended parents. If the intended father's sperm is used in the insemination, the resulting child is genetically related to both him and the gestational carrier.
Some choose to inseminate privately without the intervention of a doctor or physician. In some jurisdictions, the intended parents using donor sperm need to go through an adoption process to have legal parental rights of the resulting child. Many fertility centres that provide for surrogacy assist the parties through the legal process.
Children born through singleton IVF surrogacy have been shown to have no physical or mental abnormalities compared to those children born through natural conception. However, children born through multiple gestation by gestational carriers often result in preterm labor and delivery, resulting in prematurity and physical or mental anomalies.
In some countries, such as China, there exists a gap in the legal framework between the legislation and regulation for surrogacy. There can be an increase in the safety risks of artificial surgeries such as egg retrieval and insemination. Moreover, any underground contracts can inflict serious psychological harm on gestational carriers. Surrogacy agencies have ignored gestational carriers health risks which has led to death and have enforced foetal sex selection through abortions. Multiple embryo transfers and foetal reduction procedures may also be repeated on the same gestational carrier, causing health hazards such as miscarriage, infertility, and even death.
For surrogate pregnancies where only one child is born, the preterm birth rate in surrogacy is marginally lower than babies born from standard IVF (11.5% vs 14%). Babies born from surrogacy also have similar average gestational age as infants born through in vitro fertilization and Egg donation; approximately 37 weeks. Preterm birth rate was higher for surrogate twin pregnancies compared to single births. There are fewer babies with low birth weight when born through surrogacy compared to those born through in vitro fertilization but both methods have similar rates of birth defects.
According to recommendations made by the European Society of Human Reproduction and Embryology and American Society for Reproductive Medicine, a gestational carrier is preferably between the ages of 21 and 45, has had one Full term, uncomplicated pregnancy where she successfully had at least one child, and has had no more than five deliveries or three Caesarean sections.
The International Federation of Gynaecology and Obstetrics recommends that the surrogate's autonomy should be respected throughout the pregnancy even if her wishes conflict with what the intended parents want.
The most commonly reported motivation given by gestational surrogates is an altruistic desire to help a childless couple. Other less commonly given reasons include enjoying the experience of pregnancy, and financial compensation.
Many developments in medicine, social customs, and legal proceedings around the world paved the way for modern surrogacy:
Although gestational surrogates generally report being satisfied with their experience as surrogates, there are cases in which they are not. Unmet expectations are associated with dissatisfaction. Some women did not feel a certain level of closeness with the couple and others did not feel respected by the couple. Some gestational surrogates report emotional distress during the process of surrogacy. There may be a lack of access to therapy and emotional support through the surrogate process.
Gestational surrogates may struggle with postpartum depression and issues with relinquishing the child to their intended parents. Immediate postpartum depression has been observed in gestational surrogates at a rate of 0-20%. Some surrogates report negative feelings with relinquishing rights to the child immediately after birth, but most negative feelings resolve after some time.
Gay men who have become fathers using surrogacy have reported similar experiences to those of other couples who have used surrogacy, including their relationship with both their child and their surrogate.
A study has followed a cohort of 32 surrogacy, 32 egg donation, and 54 natural conception families through to age seven, reporting the impact of surrogacy on the families and children at ages one, two, and seven. At age one, parents through surrogacy showed greater psychological well-being and adaptation to parenthood than those who conceived naturally; there were no differences in infant temperament. At age two, parents through surrogacy showed more positive mother–child relationships and less parenting stress on the part of fathers than their natural conception counterparts; there were no differences in child development between these two groups. At age seven, the surrogacy and egg donation families showed less positive mother–child interaction than the natural conception families, but there were no differences in maternal positive or negative attitudes or child adjustment. The researchers concluded that the surrogacy families continued to function well.
Commercial surrogacy is banned in Canada and most of Europe.
The US, Ukraine, Russia and Georgia have the least restrictive laws in the world, allowing commercial surrogacy, including for foreigners. Surrogacy is legal and common in Iran, and monetary remuneration is practiced and allowed by religious authorities.
Several Asian countries used to have less restrictive laws, but the practice has since been restricted. In 2013, Thailand banned commercial surrogacy, and restricted altruistic surrogacy to Thai couples. In 2016, Cambodia also banned commercial surrogacy. Nepal, Mexico, and India have also recently banned foreign commercial surrogacy.
Laws dealing with surrogacy must deal with:
Although laws differ widely from one jurisdiction to another, some generalizations are possible:
The historical legal assumption has been that the woman giving birth to a child is that child's legal mother, and the only way for another woman to be recognized as the legal mother is through adoption (usually requiring the birth mother's formal abandonment of parental rights).
Even in jurisdictions that do not recognize surrogacy arrangements, if the potential adoptive parents and the birth mother proceed without any intervention from the government and do not change their mind along the way, they will likely be able to achieve the effects of surrogacy by having the gestational carrier give birth and then give the child up for private adoption to the intended parents.
If the jurisdiction specifically bans surrogacy, however, and authorities find out about the arrangement, there may be financial and legal consequences for the parties involved. One jurisdiction (Quebec) prevented the genetic mother's adoption of the child even though that left the child with no legal mother.Baudouin, Christine. "Surrogacy in Quebec: First Legal Test". Canadian Fertility and Andrology Society.
Some jurisdictions specifically prohibit only commercial and not altruistic surrogacy. Even jurisdictions that do not prohibit surrogacy may rule that surrogacy contracts (commercial, altruistic, or both) are void. If the contract is either prohibited or void, then there is no recourse if one party to the agreement has a change of heart: if a surrogate changes her mind and decides to keep the child, the intended mother has no claim to the child even if it is her genetic offspring, and the couple cannot get back any money they may have paid the surrogate; if the intended parents change their mind and do not want the child after all, the surrogate cannot get any money to make up for the expenses, or any promised payment, and she will be left with legal custody of the child.
Jurisdictions that permit surrogacy sometimes offer a way for the intended mother, especially if she is also the genetic mother, to be recognized as the legal mother without going through the process of abandonment and adoption. Often this is via a birth orderBognar, Tara (November 28, 2011). "Birth Orders: An Overview" . Retrieved December 13, 2011. in which a court rules on the legal parentage of a child. These orders usually require the consent of all parties involved, sometimes even including the husband of a married gestational surrogate. Most jurisdictions provide for only a post-birth order, often out of an unwillingness to force the gestational carrier to give up parental rights if she changes her mind after the birth.
A few jurisdictions do provide for pre-birth orders, generally only in cases when the gestational carrier is not genetically related to the expected child. Some jurisdictions impose other requirements in order to issue birth orders: for example, that the intended parents be heterosexual and married to one another. Jurisdictions that provide for pre-birth orders are also more likely to provide for some kind of enforcement of surrogacy contracts.
| (3) | No person shall provide or utilize embryos, sperms or eggs, or induce or assist in providing or utilizing them for the purpose of receiving monetary benefits, property interests or other personal benefits in return. |
Any medical organization involved in surrogacy will be considered as law violation, including any institution that organizes, implements, or facilitates egg retrieval and sale of women. Statistics found more than 400 surrogacy agencies facilitate the birth of more than 10,000 surrogate children every year on average — operating underground with legal prohibitions.
Due to such blurry legal issues, surrogate mothers have become an underprivileged group facing the oppression of women's reproductive rights and the lack of formal legal restrictions. Many of the conditions they should have, such as emotional caring and social resources, are absent, as research claiming that surrogacy contracts usually blindly meet client needs while ignoring the health and well-being of the surrogate mothers. They are marginalized by society and lack the companionship of their partners and legitimate medical health checkups during the nearly one year of pregnancy.
While some hold that any consensual process is not a human rights violation, other human rights activists argue that human rights are not just about survival but about human dignity and respect.
Some Feminism have also argued that surrogacy is an assault to a woman's dignity and right to autonomy over her body. By degrading women to purchasable "baby producers”, commercial surrogacy has been accused by feminists of commodifying women's bodies in a manner akin to prostitution. Feminist Renate Klein has argued that surrogacy is a human rights violation. In her book "Surrogacy - a Human Rights Violation", Klein examines the harms done to women who become surrogates, and how the practice breaks a number of conventions on human rights. Feminist Kajsa Ekis Ekman has argued that surrogacy is akin to reproductive prostitution and baby sale. Her book "Being and Being Bought - Prostitution, Surrogacy and the Split Self" compares the two industries and how they both commodify women.
Some feminists also express concerns over links between surrogacy and Patriarchy expressions of domination as numerous reports have been cited of women in developing countries coerced into commercial surrogacy by their husbands wanting to "earn money off of their wives' bodies".
These contracts can allow other people to legally impose requirements on the pregnant person that some argue result in “your body, my choice”.
Other human rights activists express concern over the conditions under which gestational carriers are kept by surrogacy clinics which exercise much power and control over the process of surrogate pregnancy. Isolated from friends and family and required to live in separate surrogacy hostels on the pretext of ensuring consistent prenatal care, it is argued that gestational carriers may face psychological challenges that cannot be offset by the (limited) economic benefits of surrogacy. Other psychological issues are noted, such as the implications of gestational carriers emotionally detaching themselves from their babies in anticipation of birth departure.
Some argue that women in developing countries are particularly vulnerable to exploitation from surrogacy. Decisions cannot be defined as involving agency if they are driven by coercion, violence, or extreme poverty, which is often the case with women in developing countries who pursue surrogacy due to economic need or aggressive persuasion from their husbands. While opponents of this stance argue that surrogacy provides a much-needed source of revenue for women facing poverty in developing countries, others purport that the lack of legislation in such countries often leads to much of the profit accruing to middlemen and commercial agencies rather than the gestational carriers themselves. Supporters of surrogacy have argued to mandate education of gestational carriers regarding their rights and risks through the process in order to both rectify the ethical issues that arise and to enhance their autonomy. Both opponents and supporters of surrogacy have agreed that implementing international laws on surrogacy can limit the social justice issues that gestational carriers face in transnational surrogacy.
Some argue that birth mothers cannot be coerced (or paid) to relinquish their custody of the child they bore (though any birthmother might need to share custody with another). It has been argued that under laws of countries where surrogacy falls under the umbrella of adoption, commercial surrogacy can be considered problematic as payment for adoption is unethical.
It is argued that in commercial surrogacy, the rights of the child are often neglected as the baby becomes a mere commodity within an economic transaction of a good and a service. Such opponents of surrogacy argue that transferring the duties of parenthood from the birthing mother to a contracting couple denies the child any claim to its birth mother and to its biological parents if the egg or sperm is not that of the contracting parents. In addition, they claim that the child has no right to information about any siblings he or she may have in the latter instance. The relevance of disclosing the use of surrogacy as an assisted reproductive technique to the child has also been argued to be important for both health risks and the rights of the child.
The United Nations Report of the Special Rapporteur on the sale and sexual exploitation of children states, “A child is not a good or service that the State can guarantee or provide, but rather a rights-bearing human being” and argues that commercial surrogacy (where transfer of the child is a condition for payment) violates human rights as it is considered to be the sale of children (and humans cannot be bought or sold).
Traditional Chinese values focus on blood ties and family ties. The physical connection between parents and children and the process by which parents give birth to children are considered virtuous ( "生恩 shēng'ēn"). There is also an ancient Chinese saying that believes that "the body, hair, and skin come from the parents who gave birth to one", and blood relatives should be respected, and one should not harm oneself at will ( "身体发肤受之父母 shēntǐ fà fū shòu zhī fùmǔ"). When Chinese people regard blood relations as an important pathway to demonstrate filial piety and family intimacy, these traditional concepts are rooted in the cognitive norm of society. Such emphasis on biological parents and blood relations undoubtedly resulted in conflicts with the practice of surrogacy, which regards childbirth as only a physiological process.
Correspondingly, this value of kinship relations strongly affects the social status of surrogate mothers. They are easily considered "heartless" or "don't care about their own children" in Chinese society because they are only responsible for the birth process and hand over the children to others and do not participate in the upbringing process. However, there are also opinions that this separation from the children is not voluntary for surrogate mothers, but is forced by third-party agencies or restricted by unfair contracts. They can only give up the right to raise their children and send them away despite suffering great psychological and emotional trauma.
In the US, the total costs for gestational surrogacy usually exceed US$100,000 per pregnancy. This includes hiring an agency to find a woman willing to carry the baby, the medical and health insurance costs for the pregnancy, legal fees, and IVF to create the embryos. Additionally, some people have additional fees for egg or sperm donations, travel, money paid to the surrogate for lost work, maternity clothes, or other expenses.
However, numerous Buddhist thinkers have expressed concerns with certain aspects of surrogacy. One Buddhist perspective on surrogacy arises from the Buddhist belief in reincarnation as a manifestation of karma. According to this view, gestational carrierhood circumvents the workings of karma by interfering with the natural cycle of rebirth.
Others reference the Gautama Buddha directly who purportedly taught that trade in Sentience beings, including human beings, is not a righteous practice as it almost always involves exploitation that causes suffering. Susumu Shimazono, professor of Religious Studies at the University of Tokyo, contends in the magazine Dharma World that surrogacy places the childbearing surrogate in a position of subservience, in which her body becomes a "tool" for another. Simultaneously, other Buddhist thinkers argue that as long as the primary purpose of being a gestational carrier is out of compassion instead of profit, it is not exploitative and is therefore morally permissible. This further highlights the lack of consensus on surrogacy within the Buddhist community.
Many proponents of this stance express concern that the sanctity of marriage may be compromised by the insertion of a third party into the marriage contract. Additionally, the practice of in vitro fertilisation involved in gestational surrogacy is generally viewed as morally impermissible due to its removal of human conception from the act of sexual intercourse. Roman Catholics also condemn in vitro fertilisation due to the destruction of embryos that accompanies the frequent practice of discarding, freezing, or donating non-implanted eggs to stem cell research. As such, the Roman Catholic Church deems all practices involving in vitro fertilisation, including gestational surrogacy, as morally problematic.
Kamsa, the wicked king of Mathura, had imprisoned his sister Devaki and her husband Vasudeva because oracles had informed him that her child would be his killer. Every time she delivered a child, he smashed its head on the floor. He killed six children. When the seventh child was conceived, the gods intervened. They summoned the goddess Yogamaya and had her transfer the fetus from the womb of Devaki to the womb of Rohini (Vasudeva's other wife who lived with her sister Yashoda across the river Yamuna, in the village of cowherds at Gokulam). Thus the child conceived in one womb was incubated in and delivered through another womb.
Additionally, infertility is often associated with karma in the Hindu tradition and consequently treated as a pathology to be treated. This has led to general acceptance of medical intervention for addressing infertility amongst Hindus. As such, surrogacy and other scientific methods of assisted reproduction are generally supported within the Hindu community. Nonetheless, Hindu women do not commonly use surrogacy as an option to treat infertility, despite often serving as surrogates for Western commissioning couples. When surrogacy is practiced by Hindus, it is more likely to be used within the family circle as opposed to involving anonymous donors.
Other sources state that surrogacy is not objectionable in the Jain view as it is seen as a physical operation akin to any other medical treatment used to treat a bodily deficiency. However, some religious concerns related to surrogacy have been raised within the Jain community including the loss of non-implanted embryos, destruction of traditional marriage relationships, and Adultery implications of gestational surrogacy.
Those supportive of surrogacy within the Judaism generally view it as a morally permissible way for Jewish women who cannot conceive to fulfill their religious obligations of procreation. Rabbis who favour this stance often cite Genesis 9:1 which commands all Jews to "be fruitful and multiply". In 1988, the Committee on Jewish Law and Standards associated with the Conservative Jewish movement issued formal approval for surrogacy, concluding that "the mitzvah of parenthood is so great that ovum surrogacy is permissible".
Jewish scholars and rabbis which hold an anti-surrogacy stance often see it as a form of modern slavery wherein women's bodies are exploited and children are commodified. As Jews possess the religious obligation to "actively engage in the redemption of those who are enslaved", practices seen as involving human exploitation are morally condemned. This thinking aligns with concerns brought forth by other groups regarding the relation between surrogacy practices and forms of human trafficking in certain countries with large fertility tourism industries. Several Jewish scholars and rabbis also cite ethical concerns surrounding the "broken relationship" between the child and its surrogate birth mother. Rabbi Immanuel Jacovits, chief rabbi of the United Hebrew Congregation from 1976 to 1991, reported in his 1975 publication Jewish Medical Ethics that "to use another person as an incubator and then take from her the child that she carried and delivered for a fee is a revolting degradation of maternity and an affront to human dignity."
Another point of contention surrounding surrogacy within the Jewish community is the issue of defining motherhood. There are generally three conflicting views on this topic: 1) the ovum donor is the mother, 2) the gestational carrier is the mother, and 3) the child has two mothers—both the ovum donor and the gestational carrier. While most contend that parenthood is determined by the woman giving birth, a minority opt to consider the genetic parents the legal parents, citing the well-known passage in Sanhedrin 91b of the Talmud which states that life begins at conception. Also controversial is the issue of defining Judaism in the context of surrogacy. Halakha states that if a Jewish woman is the surrogate, then the child is Jewish. However, this often raises issues when the child is raised by a non-Jewish family and approaches for addressing this issue are also widely debated within the Jewish community.
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