Introduction
Surrogacy is an arrangement in which a woman, known as a surrogate mother, agrees to carry and give birth to a child for another person or couple, known as the intended parents. This arrangement can be pursued by individuals or couples who are unable to conceive or carry a pregnancy to term due to medical, social, or personal reasons. Surrogacy has become a significant option in the realm of assisted reproductive technologies, providing a path to parenthood for many. However, it raises complex legal, ethical, moral, religious, and social issues that need careful consideration.
How It Works
Surrogacy can be classified into two main types:
1. Traditional Surrogacy: In traditional surrogacy, the surrogate mother is artificially inseminated with the intended father’s sperm. Here, the surrogate’s egg is used, making her the biological mother of the child. This type of surrogacy is less common due to the potential legal and emotional complexities.
2. Gestational Surrogacy: In gestational surrogacy, an embryo created using the intended parents’ or donors’ eggs and sperm is implanted in the surrogate. The surrogate has no genetic connection to the child. This method is more prevalent as it simplifies legal issues regarding parental rights.
The surrogacy process generally involves the following steps:
– Medical and Psychological Screening: Both the surrogate and the intended parents undergo comprehensive screening to ensure physical and mental suitability.
– Legal Agreements: Detailed contracts are drafted to outline the rights and responsibilities of both parties.
– Fertilization and Embryo Transfer: The chosen method of fertilization is performed, and the embryo is transferred to the surrogate’s uterus.
– Pregnancy and Delivery: The surrogate carries the pregnancy to term, after which the child is handed over to the intended parents as per the agreement.
Credit: Birla Fertility and IVF
Advantages and Disadvantages
Advantages
– Path to Parenthood: Surrogacy provides a way for infertile couples, same-sex couples, and single individuals to have biological children.
– Biological Connection: Gestational surrogacy allows at least one parent to have a genetic link to the child.
– Control and Involvement: Intended parents can be involved in the pregnancy process and make important decisions regarding the child’s prenatal care.
Disadvantages
– Legal Complexities: Varying surrogacy laws across jurisdictions can lead to legal challenges and uncertainties.
– Emotional Strain: The process can be emotionally demanding for all parties involved, potentially leading to stress and conflict.
– High Costs: Surrogacy can be expensive, with costs including medical procedures, legal fees, and surrogate compensation.
– Health Risks: Surrogates face medical risks associated with pregnancy and childbirth.
Case Studies
1. Baby M Case (USA, 1986): Mary Beth Whitehead, a traditional surrogate, decided to keep the baby after birth, leading to a high-profile legal battle. The court ultimately awarded custody to the intended parents but granted visitation rights to Whitehead.
2. Balaz v. Union of India (India, 2008): A German couple’s twin children born via surrogacy in India were denied citizenship by both Germany and India, highlighting the legal complexities of cross-border surrogacy.
3. Johnson v. Calvert (USA, 1993): A landmark case in California where the court upheld the contract of a gestational surrogacy agreement, affirming the intended parents as the legal parents of the child.
4. Baby Gammy Case (Thailand, 2014): An Australian couple left behind one of the twins born via surrogacy in Thailand because he had Down syndrome. The case drew attention to the ethical responsibilities of intended parents.
5. Yamada Case (Japan, 2008): A Japanese couple’s surrogate baby was denied entry to Japan due to legal restrictions on surrogacy, leading to a prolonged legal battle.
6. Menino Jesus Case (Portugal, 2011): A Portuguese woman agreed to be a surrogate for her sister, but legal challenges arose when the hospital refused to perform the embryo transfer due to unclear regulations.
7. Elton John and David Furnish (USA, 2010): The celebrity couple used surrogacy to have two children, bringing surrogacy into the public eye and highlighting its acceptance among high-profile individuals.
8. Amy Smart and Carter Oosterhouse (USA, 2016): The couple welcomed a daughter via surrogacy, sharing their journey to highlight the emotional and practical aspects of the process.
9. Alyssa Milano and David Bugliari (USA, 2014): The actress publicly discussed her decision to use surrogacy for her second child, helping to normalize the practice.
10. Nicole Kidman and Keith Urban (USA, 2010): The couple used a gestational surrogate for their second child, raising awareness about surrogacy among celebrities.
Ethical Considerations
– Exploitation Concerns: There is a risk of exploitation, particularly of economically disadvantaged women in developing countries who may become surrogates out of financial necessity.
– Informed Consent: Ensuring that surrogates fully understand and voluntarily consent to the process is essential to protect their rights.
– Child’s Best Interests: The welfare of the child should be the primary concern, ensuring they have the right to know their biological origins if they wish.
Moral Considerations
– Commodification of Reproduction: The commercial aspect of surrogacy raises concerns about treating children and reproductive capabilities as commodities.
– Parental Rights and Responsibilities: Determining who has the rightful claim to parental rights can be morally complex, especially in cases of dispute or changing intentions.
Religious Considerations
– Christianity: Different denominations have varying views, with some opposing surrogacy on the grounds that it separates procreation from the marital act.
– Islam: Generally, traditional surrogacy is prohibited, while gestational surrogacy may be accepted under strict conditions to ensure all parties’ rights and duties are maintained.
– Judaism: Orthodox Judaism typically permits gestational surrogacy under strict rabbinical supervision, emphasizing the need for adherence to religious laws.
– Hinduism: Generally accepting of surrogacy, viewing it as a means to fulfil the desire for children, which is an important aspect of Hindu family life.
Social Considerations
– Stigma and Acceptance: Surrogacy can carry social stigma, affecting the surrogate and the child’s social interactions and acceptance in some communities.
– Family Dynamics: Surrogacy can impact family relationships, particularly with extended family members and the surrogate’s own family.
– Identity and Psychological Impact: The child’s understanding of their origins and the potential psychological impact of surrogacy need careful handling.
Health Considerations
– Medical Risks for Surrogates: Surrogates face the usual risks associated with pregnancy, including pre-eclampsia, gestational diabetes, and complications during childbirth.
– Psychological Impact: Surrogates and intended parents may experience significant emotional and psychological challenges during and after the surrogacy process.
– Health of the Child: Ensuring the health and well-being of the child through proper prenatal care and post-birth medical support is crucial.
Constitutional Provisions (Legal and Illegal)
Laws governing surrogacy differ widely across countries and even within regions:
– USA: Surrogacy laws vary by state. Some states like California allow both commercial and altruistic surrogacy, while others like New York only recently legalized compensated surrogacy.
– India: Altruistic surrogacy is allowed, but commercial surrogacy was banned in 2015. The Surrogacy (Regulation) Bill, 2019, permits altruistic surrogacy for Indian couples who have been married for at least five years.
– UK: Only altruistic surrogacy is legal. Commercial surrogacy, where the surrogate is paid beyond reasonable expenses, is prohibited.
– Canada: Similar to the UK, only altruistic surrogacy is permitted. The Assisted Human Reproduction Act prohibits commercial surrogacy, allowing only reimbursement for expenses directly related to the pregnancy.
Recommendations from Legal Health Studies
1. Establish Clear Legal Frameworks: Comprehensive and consistent legal frameworks should be established to protect the rights and responsibilities of all parties involved in surrogacy arrangements.
2. Health and Psychological Support: Continuous medical and psychological support should be provided to surrogates and intended parents to ensure their well-being throughout the process.
3. International Regulations: International guidelines should be developed to address cross-border surrogacy, ensuring legal recognition and protection across different jurisdictions.
4. Transparency and Informed Consent: Ensure that all parties involved in the surrogacy process are fully informed about the procedures, risks, and legal implications, and that their consent is obtained without coercion.
5. Fair Compensation and Expense Reimbursement: Establish guidelines for fair compensation to surrogates and ensure that all pregnancy-related expenses are covered.
6. Medical and Psychological Screening: Implement mandatory screening for both surrogates and intended parents to ensure physical and mental readiness for the surrogacy process.
7. Post-Birth Legal Procedures: Simplify and standardize post-birth legal procedures to ensure the timely transfer of parental rights to the intended parents.
8. Child Welfare Focus: Prioritize the long-term welfare of the child, including their right to know their biological origins and access to psychological support if needed.
9. Ethical Oversight Committees: Establish ethical oversight committees to review surrogacy agreements and ensure they adhere to ethical standards and protect all parties involved.
10. Support Networks for Surrogates: Create support networks and advocacy groups for surrogates to provide emotional, legal, and medical support throughout the process.
11. Education and Awareness Campaigns: Conduct public education campaigns to raise awareness about the surrogacy process, addressing misconceptions and reducing stigma.
12. Research and Data Collection: Fund and promote research on the long-term outcomes of surrogacy for surrogates, intended parents, and children to inform best practices and policy development.
13. Insurance Coverage: Ensure that surrogates have adequate health insurance coverage that includes all pregnancy-related medical expenses and potential complications.
14. Dispute Resolution Mechanisms: Establish clear mechanisms for resolving disputes between surrogates and intended parents to avoid protracted legal battles.
15. Legal Recognition Across Borders: Work towards international agreements to recognize surrogacy arrangements and parental rights across borders, reducing legal uncertainties for cross-border surrogacy.
Way Forward
To ensure surrogacy remains a viable and ethical option for those seeking parenthood, the following steps should be taken:
1. Strengthen Legal Protections: Robust legal frameworks should be established and enforced to protect surrogates, intended parents, and children involved in surrogacy arrangements.
2. Promote Ethical Practices: Transparency, informed consent, and the welfare of surrogates and children should be prioritized to promote ethical surrogacy practices.
3. Raise Awareness: Public education campaigns should be conducted to reduce stigma and promote understanding of surrogacy.
4. Support Research: Funding should be allocated for research into the long-term effects of surrogacy on all parties, including surrogates, intended parents, and children, to inform best practices and policy development.
5. Foster International Collaboration: Develop international frameworks and collaborations to ensure consistent legal recognition and protection for all parties involved in cross-border surrogacy.
By addressing these challenges and promoting ethical, legal, and supportive practices, surrogacy can continue to provide a path to parenthood while respecting the dignity and rights of all involved.