Ethical and Legal Issues of Surrogate Pregnancy

Surrogacy is a type of contract pregnancy in which a woman carries a baby to term for another couple. There are thousands of infertile couples all over the world who choose surrogacy as a viable option for having a child and completing their family.

There are two types of surrogacy – one is traditional surrogacy, and the other is gestational surrogacy.(1)

Traditional Surrogacy

Traditional surrogacy is when a surrogate mother gets artificially inseminated, either by an anonymous donor or by the intended father. She then carries the baby to term. In traditional surrogacy, the child is genetically related to both the surrogate mother, who gives the egg and the anonymous donor or the intended father.(2)

Gestational Surrogacy

In gestational surrogacy, the egg gets removed from an anonymous donor or the intended mother. It is then fertilized with the sperm of an anonymous donor or the sperm of the intended father. The fertilized egg, or the embryo, is then implanted or transferred into a surrogate mother who will carry the baby to term.

The child in gestational surrogacy is therefore genetically related to the woman who gave the egg and the intended father, or the anonymous sperm donor. However, the child is not genetically related to the surrogate mother.

Traditional surrogacy often finds itself in more controversy than gestational surrogacy. This is primarily because of the biological relationship between the child and the surrogate mother usually complicates the facts related to parental rights or even the validity of the surrogacy agreement may end up getting challenged.

Due to this, many countries prohibit traditional surrogacy agreements.(3)

Here are some of the main issues associated with surrogacy in many countries, especially developing countries where surrogate mothers get paid very less, and the big-name clinics end up profiting from the procedure.

Poor Remuneration: As mentioned above, the surrogate mother who is carrying the baby to term gets paid very less, and the significant share of the money is profited by the surrogate clinic.

Gender Selection: In many countries, especially India, surrogacy involves gender selection, which is illegal in the country. In cases where the surrogate child turns out to be a girl child, then the surrogate mother is either left to keep the baby or gets even more reduced remuneration as compared to what was earlier agreed upon. Many surrogacy clinics, under the name of surrogacy, are illegally running a sex determination and abortion industry.

Legal Loopholes: Since many countries do not have a strict law in place for surrogacy and other related issues, surrogate mothers are unable to claim their rights from courts or any other authority. They are often left with the baby, especially if the child is born with a congenital disability, or it is a girl child. There are many cases where the surrogate mothers are shortchanged due to clarity of law and lack of regulation.

Woman’s Health: The health of the surrogate mother is often a serious issue in surrogacy. The health of the surrogate often gets little importance as the surrogate clinics usually ignore regular medical check-ups, providing proper food, no special hospital privileges, and other related expenses. Most surrogate mothers in developing countries hail from underprivileged households. They have deplorable living conditions, which the clinics ignore and even try to take advantage of the situation these women are in.

Risks To The Baby’s Health: Surrogacy also involves several threats to the baby’s health, such as low birth weight, genetic disorders, or membrane damage, etc. In the case of a disabled baby or a baby with congenital disabilities, the child is simply left with the surrogate mother itself or sometimes given to an orphanage.

Child Trafficking: Since the legal status of surrogacy in many countries remain unknown and unclear, there is also a parallel growth in the child trafficking industry wherein surrogate mothers are made to give up their child for human trafficking trade, especially if it is a girl child.

Ethical Issues with Surrogacy

One of the main reasons why surrogacy seems to be surrounded by sharp ethical criticisms is due to the combining of the perceived ‘sacred’ process of reproduction and couples resorting to having children with their money. Many people firmly believe that the ‘sacred’ process of reproduction should not be allowed to be bought over by money.

While the primary argument in favor of surrogacy is that they allow a way for infertile couples to become parents, but at the same time, the world is fast moving towards a scenario where perfectly capable and fertile couples are opting to have a child through surrogacy for various reasons. One of the main reasons behind this is that the woman does not want to deal with the hassles of having to go through a 9-month long ordeal of pregnancy and spoil her figure. Many celebrity couples today are opting to have a child through surrogacy, even though they are not infertile.

One of the possible alternatives to surrogacy that is also under discussion when it comes to the ethics of surrogacy is adoption.(4) Many argue that when there are so many underprivileged children waiting to be adopted, why are people going ahead and paying hefty sums of money to have a child through surrogacy?(5)

However, the opposing argument presented in favor of surrogacy is that in adoption, the couple does not have any possibility of having any type of genetic connection to the child. Whereas, in surrogacy, there is the possibility of having a genetic link to the child of at least one parent.(6)

Another ethical argument against surrogacy is that the rights of the child are almost never taken into account. Transferring the duties of parenthood from the surrogate birthing mother to a contracting couple hence denies any type of claim to the gestational or birthing carrier, and it’s biological parents in case the egg and/or sperm are not that of the contracting parents. Additionally, the child is not given any right to information and any potential siblings he or she may have had.

Furthermore, many critics of surrogacy strongly feel that surrogacy is another type of commodification of women’s bodies.(7) Surrogacy services are advertised as a means to earn extra money, surrogates are recruited by the clinics, and operating agencies or clinics end up making huge profits. The commercial factor associated with surrogacy also raises fears of the existence of a black market and baby selling, or baby breeding factories, using impoverished women as baby producers and then there is also the possibility of selective gender breeding at a higher price.

Surrogacy is seen as a process that degrades the natural pregnancy to a mere service and a baby to just being a product which can be purchased if you pay enough money.(8)

Legal Issues of Surrogacy

The legality of surrogacy is not only complicated, but they are also diverse and mostly unsolved or unsettled. In most countries around the world, the woman who is giving birth to the child is considered to the child’s legal mother. For example, in India and Ukraine, the contracting parents are viewed as legal parents. Still, many countries do not have any clear legal status that safeguards either party in cases of surrogacy.

Many countries have now put in place pre-birth laws through the courts that direct hospitals and the contractual parents to place the names of the intended parents on the birth certificate of the child from the beginning itself.

However, there are still many legal issues that need to be addressed around the world, especially which should safeguard the interest of the surrogate mother as well. These include:

The age of the surrogate mother should be determined to be between 21 to 35 years of age, preferably. This prevents the exploitation of women who are younger than 18 years of age. Experts say that the best time for a woman to get pregnant is between the late 20s and early 30s. This age is also associated with the best outcome for both the mother and the baby. One study has even found that the ideal age for a woman to give birth to a first child should be at 30.5 years.(9)

The number of times a woman has delivered children, either her own or surrogate should also be considered. Experts agree that a woman should not have delivered more than five times and the surrogate mother should not be allowed to undertake more than three embryo transfer for one couple.(10)

In the case of the surrogate mother being married, the consent of her spouse should also be taken into consideration to prevent any marital or legal dispute in the future.

Screening the surrogate for any sexually transmitted infections or any type of infectious diseases that can be passed on to the fetus should be made mandatory.

The expenses of the pregnancy, including all healthcare bills and the cost of childbirth, should be borne by the contractual parents.

The issue of life insurance of the surrogate mother needs to be considered.

In order to safeguard poor surrogate mothers from monetary exploitation, banks or some other authority should be involved in the process to ensure that the minimum remuneration to be paid for the surrogacy is given to the surrogate mother.

One more legal issue that arises in rare cases is what happens in case the contractual parents both die before the child is born, or divorce takes place between the contractual parents. Subsequently, none of them are willing to take responsibility for the child. How do you avoid injustice to the child and the surrogate mother in such cases?

The fact that the surrogate mother should not have any parental rights needs to be legally bound as well as the fact that the birth certificate should carry the names of the contractual parents in order to avoid any future legal complications.

Conclusion

Many argue that it is ironic that infertile couples engage in surrogacy and are ready to shell out so much money for getting a child with a genetic link to them when there are millions of children in orphanages waiting to be adopted and given the love of parents. However, there is a different point of view of everyone, but the fact remains that there is an urgent need to modify and put in place strict legal procedures to safeguard the rights of surrogate mothers and also the contractual parents.

References:

  1. Nakash, A. and Herdiman, J., 2007. Surrogacy. Journal of Obstetrics and Gynaecology, 27(3), pp.246-251.
  2. Pande, A., 2016. Surrogacy. The Wiley Blackwell Encyclopedia of Gender and Sexuality Studies, pp.1-2.
  3. Van Den Akker, O., 2003. Genetic and gestational surrogate mothers’ experience of surrogacy. Journal of Reproductive and Infant Psychology, 21(2), pp.145-161.
  4. Page, E., 1985. Donation, surrogacy and adoption. Journal of Applied Philosophy, 2(2), pp.161-172.
  5. Atwell, B.L., 1988. Surrogacy and adoption: a case of incompatibility. Colum. Hum. Rts. L. Rev., 20, p.1.
  6. Drabiak, K., Wegner, C., Fredland, V. and Helft, P.R., 2007. Ethics, law, and commercial surrogacy: a call for uniformity. The Journal of Law, Medicine & Ethics, 35(2), pp.300-309.
  7. Scott, E.S., 2009. Surrogacy and the Politics of Commodification. Law & Contemp. Probs., 72, p.109.
  8. Kerian, C.L., 1997. Surrogacy: a last resort alternative for infertile women or a commodification of women’s bodies and children. Wis. Women’s LJ, 12, p.113.
  9. Mirowsky, J., 2002. Parenthood and health: The pivotal and optimal age at first birth. Social Forces, 81(1), pp.315-349.
  10. Saxena, P., Mishra, A. and Malik, S., 2012. Surrogacy: ethical and legal issues. Indian journal of community medicine: official publication of Indian Association of Preventive & Social Medicine, 37(4), p.211.

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