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Surrogacy is a method or agreement whereby a woman agrees to carry a pregnancy for another person or persons, who will become the newborn child's parent(s) after birth.
Intended parents may seek a surrogacy arrangement when either pregnancy is medically impossible, pregnancy risks present an unacceptable danger to the mother's health or is a same sex couple's preferred method of having children. Monetary compensation may or may not be involved in these arrangements. If the surrogate receives money for the surrogacy the arrangement is considered commercial surrogacy, if she receives no compensation beyond reimbursement of medical and other reasonable expenses it is referred to as altruistic. The legality and costs of surrogacy vary widely between jurisdictions, sometimes resulting in interstate or international surrogacy arrangements.
There are laws in some countries which restrict and regulate surrogacy and the consequences of surrogacy. Some couples or individuals wanting a child in this manner but who live in a jurisdiction which does not permit surrogacy in the circumstance in which they find themselves may travel to another jurisdiction which permits it. (See surrogacy laws by country and fertility tourism.)
Types of surrogacyEdit
The fertilisation of the surrogate may take place in a number of ways, each of which has implications for the genetic relationship of the resulting child with the surrogate and the future parents. There are two main types of surrogacy: gestational surrogacy and traditional surrogacy. In the United States, gestational surrogacy is more common than traditional surrogacy and is considered less legally complex.
Traditional surrogacy (also known as partial, genetic, or straight surrogacy) involves natural or artificial insemination of a surrogate. If the intended father's sperm is used in the insemination, then the resulting child is genetically related to the intended father and genetically related to the surrogate. If donor sperm is used, the resulting child is not genetically related to either intended parent(s) but is genetically related to the surrogate.
In some cases, an insemination may be performed privately by the parties without the intervention of a doctor or physician. In some jurisdictions, the 'commissioning parents' using donor sperms need to go through an adoption process in order to have legal rights in respect to the resulting child. Many fertility centers which provide for surrogacy assist the parties through the process.
Gestational surrogacy (also known as host or full surrogacy) was first achieved in April 1986. It takes place when an embryo created by in vitro fertilization (IVF) technology is implanted in a surrogate, sometimes called a gestational carrier. Gestational surrogacy may take a number of forms, but in each form the resulting child is genetically unrelated to the surrogate:
- the embryo is created using the intended father's sperm and the intended mother's eggs. The resulting child is genetically related to both intended parents.
- the embryo is created using the intended father's sperm and a donor egg where the donor is not the surrogate. The resulting child is genetically related to the intended father.
- the embryo is created using the intended mother's egg and donor sperm. The resulting child is genetically related to the intended mother.
- a donor embryo is implanted in a surrogate. Such an embryo may be available when others undergoing IVF have embryos left over, which they donate to others. The resulting child is genetically unrelated to the intended parent(s).
In places where surrogacy is legal, couples may enlist the help of a third party agency to oversee the process of finding a surrogate, entering into a contract with her and recommend fertility centers for insemination, generally via IVF. These agencies can help make sure that surrogates are screened with psych evaluations and other medical tests so as to ensure healthy deliveries. They also usually facilitate all legal matters concerning the two parties (intended parents and surrogate).
Having another woman bear a child for a couple to raise, usually with the male half of the couple as the genetic father, is referred to in antiquity. Babylonian law and custom allowed this practice, and infertile woman could use the practice to avoid a divorce, which would otherwise be inevitable. The earliest known description of surrogacy is claimed to be the servant Hagar begetting a child for the childless Sarah through her husband Abraham, described in the biblical Book of Genesis.
Many developments in medicine, social customs, and legal proceedings worldwide paved the way for modern commercial surrogacy:
- 1930s – In the U.S., pharmaceutical companies Schering-Kahlbaum and Parke-Davis started the mass production of estrogen.
- 1944 – Harvard Medical School professor John Rock broke ground by becoming the first person to fertilize human ova outside the uterus.
- 1953 – Researchers successfully performed the first cryopreservation of sperm.
- 1971 – The first commercial sperm bank opened in New York, which spurred the growth of this type of business into a highly profitable venture.
- 1978 – Louise Brown, the first test-tube baby, was born in England. She was the product of the first successful IVF procedure. Although the media referred to Brown as a "test tube baby", her conception actually took place in a petri dish.
- 1980 – Michigan lawyer Noel Keane wrote the first surrogacy contract. He continued his work with surrogacy through his Infertility Center, through which he created the contract leading to the Baby M case.
- 1985 – A woman carried the first successful gestational surrogate pregnancy.
- 1986 – Melissa Stern, otherwise known as "Baby M," was born in the U.S. The surrogate and biological mother, Mary Beth Whitehead, refused to cede custody of Melissa to the couple with whom she made the surrogacy agreement. The courts of New Jersey found that Whitehead was the child's legal mother and declared contracts for surrogate motherhood illegal and invalid. However, the court found it in the best interest of the infant to award custody of Melissa to the child's biological father, William Stern, and his wife Elizabeth Stern, rather than to Whitehead, the surrogate mother.
- 1990 – In California, gestational carrier Anna Johnson refused to give up the baby to intended parents Mark and Crispina Calvert. The couple sued her for custody (Calvert v. Johnson), and the court upheld their parental rights. In doing so, it legally defined the true mother as the woman who, according to the surrogacy agreement, intends to create and raise a child.
- Latin American fertility specialists convened in Chile to discuss assisted reproduction and its ethical and legal status.
- The Chinese Ministry of Health banned gestational surrogacy because of the legal complications of defining true parenthood and possible refusal by surrogates to relinquish a baby.
- 2009 – The Chinese government increased enforcement of the gestational-surrogacy ban, and Chinese women began coming forth with complaints of forced abortions.
Surrogacy has the potential for various kinds of clash between surrogate mothers and intended parents. For instance, the intended parents of the fetus may ask for an abortion when complications arise and the surrogate mother may oppose the abortion.
Surrogacy is a very controversial practice around the world, raising difficult moral, social and legal issues. As a result, the legal situation varies considerably. Many countries do not have laws which specifically deal with surrogacy. Some countries ban surrogacy outright, while others ban commercial surrogacy, while allowing altruistic surrogacy (where the surrogate is not financially compensated). Some countries allow commercial surrogacy, with few restrictions. Some jurisdictions extend a ban on surrogacy to international surrogacy. One of the problems is the rules that should apply in regard to the intending parents. For example, should normal rules applicable to adoptions apply or should it be unregulated, as it is in some countries.
Laws dealing with surrogacy must deal with:
- enforceability of surrogacy agreements. In some jurisdictions, they are void or prohibited, and some jurisdictions distinguish between commercial and altruistic surrogacy.
- What, if any, difference does it make whether the surrogacy is traditional or gestational?
- Is there an alternative to post-birth adoption for the recognition of the intended parents as the legal parents, either before or after the birth?
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 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 genetic parents and the birth mother proceed without any intervention from the government and have no changes of heart along the way, they will likely be able to achieve the effects of surrogacy by having the surrogate mother give birth and then give the child up for private adoption to the intended parents.
If the jurisdiction specifically prohibits surrogacy, however, and finds 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.
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 or reimbursed to the surrogate; if the intended parents change their mind and do not want the child after all, the surrogate cannot get any reimbursement for 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 order in which a court rules on the legal parentage of a child. These orders usually require the consent of all parties involved, sometimes including even the husband of a married gestational surrogate. Most jurisdictions provide for only a post-birth order, often out of an unwillingness to force the surrogate mother to give up parental rights if she changes her mind after the birth.
A few jurisdictions do provide for pre-birth orders, generally in only those cases when the surrogate mother 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.
The citizenship and legal status of the children resulting from surrogacy arrangements can be problematic. The Hague Conference Permanent Bureau identified the question of citizenship of these children as a "pressing problem" in the Permanent Bureau 2014 Study (Hague Conference Permanent Bureau, 2014a: 84-94). According to U.S. Department of State, Bureau of Consular Affairs, for the child to be a U.S. citizen one or both of the child's genetic parents must be a U.S. citizen. In other words, the only way for the child to acquire U.S. citizenship automatically at birth is if he/she is biologically related to a U.S. citizen. Further, in some countries, the child will not be a citizen of the country in which he/she is born because the surrogate mother is not legally the parent of said child. This could result in a child being born without citizenship.
Surrogacy laws worldwideEdit
In Australia, all jurisdictions except the Northern Territory allow altruistic surrogacy; with commercial surrogacy being a criminal offense. The Northern Territory has no legislation governing surrogacy. In New South Wales, Queensland and the Australian Capital Territory it is an offence to enter into international commercial surrogacy arrangements with potential penalties extending to imprisonment for up to one year in Australian Capital Territory, up to two years imprisonment in New South Wales and up to three years imprisonment in Queensland.
The Assisted Human Reproduction Act (AHRC) permits only altruistic surrogacy: surrogate mothers may be reimbursed for approved expenses but payment of any other consideration or fee is illegal. Quebec law, however, does not recognize surrogacy arrangements, whether commercial or altruistic.
Law 3305/2005 (“Enforcement of Medically Assisted Reproduction”) Surrogacy in Greece is fully legal and is only one of a handful of countries in the world to give legal protection to intended parents. Intended parents must meet certain qualifications, and will go before a family judge before starting their journey. As long as they meet the qualifications, the court appearance is procedural and will be granted their application. At present, intended parents must be in a heterosexual partnership or be a single female. Females must be able to prove there is a medical indication they cannot carry and be no older than 50 at the time of the contract. As in all jurisdictions, surrogates must pass medical and psychological tests so they can prove to the court that they are medically and mentally fit. What is unique about Greece is that it is the only country in Europe, and one of only countries in the world where the surrogate then has no rights over the child. The intended parents become the legal parents from conception and there is no mention of the surrogate mother anywhere on hospital or birth documents. The intended parent(s) are listed as the parents. This even applies if an egg or sperm donor is used by one of the partners. An added advantage for Europeans is that, due to the Schengen Treaty, they can freely travel home as soon as the baby is born and deal with citizenship issues at that time, as opposed to applying at their own embassy in Greece. The old regime (pursuant to art. 8 of Law 3089/2002), one of the prerequisites for granting the judicial permission for surrogacy was also the fact that the surrogate mother and the commissioning parents should be Greek citizens or permanent residents. However, the law has recently (in July 2014) changed and the new provisions of L. 4272/2014 foresee now that the surrogacy is allowed to applicants or surrogate mothers who have their permanent or temporary residence in Greece. With this new law Greece becomes the only EU country with a comprehensive framework to regulate, facilitate and enforce surrogacy, as according to the explanatory statement of the art. 17 of the L. 4272/2014: "The possibility is now extending also to applicants or surrogate mothers who have their permanent residence outside Greece."
There is no law in Ireland governing surrogacy. In 2005 a Government appointed Commission published a very comprehensive report on Assisted Human Reproduction, which made many recommendations on the broader area of assisted human reproduction. In relation to surrogacy it recommended that the commissioning couple would under Irish law be regarded as the parents of the child. Despite the publication there has been no legislation published and the area essentially remains unregulated. Due to mounting pressure from Irish citizens going abroad to have children through surrogacy, the Minister for Justice, Equality and Defence published guidelines for them on 21 February 2012.
In 2016, Gestational surrogacy was legalized in Portugal. Discussions on the adoption of this law lasted more than 3 years. The first version of the law was adopted May 13, 2016, but the president vetoed it. He demanded that the law contained rights and obligations of all participants in the process of surrogacy. As a result, the text of the law has been updated, and now surrogacy is legalized and regulated by law in Portugal.
The basic rules of the law on surrogacy in Portugal Use the surrogacy services can only those couples, where the woman can not carry and give birth to a child for medical reasons. This should be documentally confirmed. Surrogate motherhood should be altruistic, the woman who agrees to carry and give birth to a child, shouldn’t pay for services. The written agreement must be necessarily issued between the surrogate mother and the genetic parents. The rights and obligations of the parties as well as their actions in cases of force majeure should be included in it. After the birth, parental rights over the child belong to the genetic parents. According to the law, the surrogate mother is a woman of child-bearing age who agrees to carry and give birth to a child for the genetic parents, and she doesn’t lay claim to be his mother.
Traditional surrogacy is illegal in Portugal except for some situations that give the right for a surrogate mother to be genetic (for example, if the future adoptive mother is completely barren).
Adoption of the law caused some debate within several Portuguese Christian Churches, though not among the once dominant Roman Catholic Church. Representatives of Brazilian and US based evangelical and pentecostal churches condemn surrogacy and suggest that infertile couples can/must (depending on the Church) pursue conventional adoption (national or transnational even though the later is banned by law).
Heterosexual and Lesbian Couples can become parents via surrogacy in Portugal as by 2016 all the risks of the program are provided and regulated by law (for example, the occurrence of developmental defects of the baby, miscarriage or abortion). Male Homosexual couples and single men and women of any sexual orientation have not yet been included, but they are not addressed specifically by the law which leaves an opening for a future revision in a more encompassing way). One such revision is on the current manifestos of several parties (the Left Bloc, PAN - People–Animals–Nature and Os Verdes - The Greens). They can count on the repeated opposition of the populist right party PP-CDS and the Portuguese Communist Party, the most socially conservative parties in parliament.
This means that gay couples are banned from altruistic surrogacy within Portugal and since the Constitution of Portugal explicitly bans discrimination on the basis of sexual orientation, this could be unconstitutional.
Altruistic surrogacy is legal, but commercial surrogacy is not.
Gestational surrogacy is currently practiced in Nigeria by a few IVF clinics. The guidelines are as approved by the practice guidelines of the Association of Fertility and Reproductive Health (AFRH) of Nigeria. The ART regulation that is currently being considered by the Senate permits surrogacy and allows some inducement to be paid for transport and other expenses.
The South Africa Children's Act of 2005 (which came fully into force in 2010) enabled the "commissioning parents" and the surrogate to have their surrogacy agreement validated by the High Court even before fertilization. This allows the commissioning parents to be recognized as legal parents from the outset of the process and helps prevent uncertainty - although if the surrogate mother is the genetic mother she has until 60 days after the birth of the child to change her mind. The law permits single people and gay couples to be commissioning parents. However, only those domiciled in South Africa benefit from the protection of the law, no non-validated agreements will be enforced, and agreements must be altruistic rather than commercial. If there is only one commissioning parent, s/he must be genetically related to the child. If there are two, they must both be genetically related to the child unless that is physically impossible due to infertility or sex (as in the case of a same sex couple). The Commissioning parent or parents must be physically unable to birth a child independently. The surrogate mother must have had at least one pregnancy and viable delivery and have at least one living child. The surrogate mother has the right to unilaterally terminate the pregnancy, but she must consult with and inform the commissioning parents, and if she is terminating for a non-medical reason, may be obliged to refund any medical reimbursements she had received.
Commercial surrogacy arrangements are not legal in the United Kingdom. Such arrangements were prohibited by the Surrogacy Arrangements Act 1985. Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship is recognised under section 30 of the Human Fertilisation and Embryology Act 1990. Regardless of contractual or financial consideration for expenses, surrogacy arrangements are not legally enforceable so a surrogate mother maintains the legal right of determination for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made, the surrogate mother remains the legal mother of the child.
Surrogacy and its attendant legal issues fall under state jurisdiction and the legal situation for surrogacy varies greatly from state to state. Some states have written legislation, while others have developed common law regimes for dealing with surrogacy issues. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them, and some penalize commercial surrogacy. Surrogacy friendly states tend to enforce both commercial and altruistic surrogacy contracts and facilitate straightforward ways for the intended parents to be recognized as the child's legal parents. Some relatively surrogacy friendly states only offer support for married heterosexual couples. Generally, only gestational surrogacy is supported and traditional surrogacy finds little to no legal support.
For legal purposes, key factors are where the contract is completed, where the surrogate mother resides, and where the birth takes place. Therefore, individuals living in a non-friendly state can still benefit from the polices of surrogacy friendly states by working with a surrogate who lives and will give birth in a friendly state.
Ethical issues that have been raised with regards to surrogacy include:
- To what extent should society be concerned about exploitation, commodification, and/or coercion when women are paid to be pregnant and deliver babies, especially in cases where there are large wealth and power differentials between intended parents and surrogates?
- To what extent is it right for society to permit women to make contracts about the use of their bodies?
- To what extent is it a woman's human right to make contracts regarding the use of her body?
- Is contracting for surrogacy more like contracting for employment/labor, or more like an abusive or exploitative contractual relationship, for example where one party donates a kidney or otherwise gives up a fundamental right?
- Which, if any, of these kinds of contracts should be enforceable?
- Should the state be able to force a woman to carry out "specific performance" of her contract if that requires her to give birth to an embryo she would like to abort, or to abort an embryo she would like to carry to term?
- What does motherhood mean?
- What is the relationship between genetic motherhood, gestational motherhood, and social motherhood?
- Is it possible to socially or legally conceive of multiple modes of motherhood and/or the recognition of multiple mothers?
- Should a child born via surrogacy have the right to know the identity of any/all of the people involved in that child's conception and delivery?
Different religions take different approaches to surrogacy, often related to their stances on assisted reproductive technology in general.
Paragraph 2376 of the Catechism of the Catholic Church states that: "Techniques that entail the dissociation of husband and wife, by the intrusion of a person other than the couple (donation of sperm or ovum, surrogate uterus), are gravely immoral."
Jewish legal scholars debate this issue, some contend that parenthood is determined by the woman giving birth while others opt to consider the genetic parents the legal parents, this is a hotly debated issue in recent years. More recently, Jewish religious establishments have accepted surrogacy only if it is full gestational surrogacy with both intended parents' gametes included and fertilization done via IVF.
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A study by the Family and Child Psychology Research Centre at City University London in 2002 concluded that surrogate mothers rarely had difficulty relinquishing rights to a surrogate child and that the intended mothers showed greater warmth to the child than mothers conceiving naturally.
Anthropological studies of surrogates have shown that surrogates engage in various distancing techniques throughout the surrogate pregnancy so as to ensure that they do not become emotionally attached to the baby. Many surrogates intentionally try to foster the development of emotional attachment between the intended mother and the surrogate child.
Surrogates are generally encouraged by the agency they go through to become emotionally detached from the fetus prior to giving birth.
Although surrogate mothers 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 women experience emotional distress when participating as a surrogate mother. This could be due to a lack of therapy and emotional support through the surrogate process.
Some women have psychological reactions when being surrogate mothers. These include depression when surrendering the child, grief, and even refusal to release the child.
A 2011 study from the Centre for Family Research at the University of Cambridge found that surrogacy does not have a negative impact on the surrogate's own children.
A recent study (involving 32 surrogacy, 32 egg donation, and 54 natural conception families) examined the impact of surrogacy on mother–child relationships and children's psychological adjustment at age seven. Researchers found no differences in negativity, maternal positivity, or child adjustment.
Fertility tourism for surrogacy is driven by legal regulations in the home country, or lower price abroad.
India is a main destination for surrogacy. Indian surrogates have been increasingly popular with intended parents in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate's fee, and delivery of the baby at a hospital. Including the costs of flight tickets, medical procedures and hotels, it comes to roughly a third of the price compared with going through the procedure in the UK.
Surrogacy in India is of low cost and the laws are flexible. In 2008, the Supreme Court of India in the Manji's case (Japanese Baby) has held that commercial surrogacy is permitted in India. That has again increased the international confidence in going in for surrogacy in India. But as of 2014, a surrogacy ban was placed on homosexual couples and single parents.
There is an upcoming Assisted Reproductive Technology Bill, aiming to regulate the surrogacy business. However, it is expected to increase the confidence in clinics by sorting out dubious practitioners, and in this way stimulate the practice.
Most Cases for surrogacy are usually Internal
Liberal legislation makes Russia attractive for "reproductive tourists" looking for techniques not available in their countries. Intended parents come there for oocyte donation, because of advanced age or marital status (single women and single men) and when surrogacy is considered. Gestational surrogacy, even commercial is absolutely legal in Russia, being available for practically all adults willing to be parents. Foreigners have the same rights as for assisted reproduction as Russian citizens. Within three days after the birth the commissioning parents obtain a Russian birth certificate with both their names on it. Genetic relation to the child (in case of donation) does not matter. On August 4, 2010, a Moscow court ruled that a single man who applied for gestational surrogacy (using donor eggs) could be registered as the only parent of his son, becoming the first man in Russia to defend his right to become a father through a court procedure. The surrogate mother's name was not listed on the birth certificate; the father was listed as the only parent.
Surrogacy is completely legal in Ukraine. However, only healthy mothers who have had children before can become surrogates. Surrogates in Ukraine have zero parental rights over the child, as stated on Article 123 of the Family Code of Ukraine. Thus, a surrogate cannot refuse to hand the baby over in the case she changes her mind after birth. Only married couples can legally go through gestational surrogacy in Ukraine.
The United States is sought as a location for surrogate mothers by some couples seeking a green card in the U.S., since the resulting child can get birthright citizenship in the United States, and can thereby apply for green cards for the parents when the child turns 21 years of age. However, this is not the main reason. People come to the US for surrogacy procedures, including to enjoy a better quality of medical technology and care, as well as the high level of legal protections afforded through some US state courts to surrogacy contracts as compared to other countries. Increasingly, homosexual couples who face restrictions using IVF and surrogacy procedures in their home countries travel to US states where it is legal.
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