Surrogacy

Surrogacy is an arrangement in which a woman carries and delivers a child for another couple or person. The surrogate may be the child's genetic mother (called traditional surrogacy), or she may be genetically unrelated to the child (called gestational surrogacy). In a traditional surrogacy, the child may be conceived via home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination) performed at a health clinic. A gestational surrogacy requires the transfer of a previously created embryo, and for this reason the process always takes place in a clinical setting.

The intended parent or parents, sometimes called the social parents, may arrange a surrogate pregnancy because of female infertility, other medical issues which make pregnancy or delivery impossible, risky or otherwise undesirable, or because the intended parent or parents are male. The sperm or eggs may be provided by the 'commissioning' parents, but donor sperm, eggs and embryos may also be used. Although the idea of vanity surrogacy is a common trope in popular culture and anti-surrogacy arguments, there is little or no data showing that women choose surrogacy for reasons of aesthetics or convenience. 

Monetary compensation may or may not be involved in surrogacy arrangements. If the surrogate receives compensation beyond the reimbursement of medical and other reasonable expenses, the arrangement is called commercial surrogacy; otherwise, it is often referred to as altruistic surrogacy. The legality and costs of surrogacy vary widely between jurisdictions, which results in high rates of international and interstate surrogacy activity.

History

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 the divorce, which would otherwise be inevitable.

One well-known example is the Biblical story of Sarah and Abraham, a nomadic Hebrew couple unable to conceive. Sarah offered her Egyptian slave Hagar as a surrogate, but later drove her away from the camp when Hagar became impudent during pregnancy. Hagar fleed to Egypt, where an angel told her that her son Ishmael would become a leader amongst the Hebrews; she subsequently returned to Sarah and Abraham.

Many developments in medicine, social customs, and legal proceedings worldwide paved the way for modern commercial surrogacy:

• 1870s: It became common practice in China for couples to pay for an adopted son. All ties to the natal family would be severed, and the child would become an heir and full member of the adopted family.
• 1930s: In the US, 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 in vitro fertilization procedure.
• 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,” is born in the US. 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 Mary Beth 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 her biological father William Stern and his wife Elizabeth Stern, rather than to the surrogate mother, Mary Beth Whitehead.
• 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 intends to create and raise a child.
• 1994:
  • 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 due to the legal complications of defining true parenthood and possible refusal by surrogates to relinquish a baby.
• 2009: The Chinese government cracked down on enforcement of the gestational surrogacy ban, and Chinese women began coming forth with complaints of forced abortions.

There have been cases of clashes between surrogate mothers and genetic parents. For instance, genetic parents of the fetus may ask for an abortion when unexpected complications arise, and the surrogate mother may oppose the abortion.

Types of surrogacy

Traditional surrogacy (TS)

This involves artificially inseminating a surrogate mother with the intended father's sperm via IUI, IVF or home insemination. With this method, the child is genetically related to its father and the surrogate mother.

Traditional surrogacy & donor sperm (TS/DS)

A surrogate mother is artificially inseminated with donor sperm via IUI, IVF or home insemination. The child born is genetically related to the sperm donor and the surrogate mother.

Gestational surrogacy (GS)

When the intended mother is not able to carry a baby to term due to hysterectomy, diabetes, cancer, etc., her egg and the intended father's sperm are used to create an embryo (via IVF) that is transferred into and carried by the surrogate mother. The resulting child is genetically related to its parents while the surrogate mother has no genetic relation.

Gestational surrogacy & egg donation (GS/ED)

If there is no intended mother or the intended mother is unable to produce eggs, the surrogate mother carries the embryo developed from a donor egg that has been fertilized by sperm from the intended father. With this method, the child born is genetically related to the intended father and the surrogate mother has no genetic relation.

Gestational surrogacy & donor sperm (GS/DS)

If there is no intended father or the intended father is unable to produce sperm, the surrogate mother carries an embryo developed from the intended mother's egg (who is unable to carry a pregnancy herself) and donor sperm. With this method, the child born is genetically related to the intended mother and the surrogate mother has no genetic relation.

Gestational surrogacy & donor embryo (GS/DE)

When the intended parents are unable to produce either sperm, egg, or embryo, the surrogate mother can carry a donated embryo (often from other couples who have completed IVF that have leftover embryos). The child born is genetically related neither to the intended parents nor the surrogate mother.

Legal issues

Main article: Surrogacy laws by country

As of 2013, locations where a woman can legally be paid to carry another's child through IVF and embryo transfer include India, Georgia, Russia, Thailand, Ukraine and a few U.S. States. The legal aspects of surrogacy in any particular jurisdiction tend to hinge on a few central questions:

• Are surrogacy agreements enforceable, void, or prohibited? Does it make a difference whether the surrogate mother is paid (commercial) or simply reimbursed for expenses (altruistic)?
• 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 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 they 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 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 only provide for 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 only in 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.

Ethical issues

Ethical issues that have been raised with regards to surrogacy include

• To what extent should we 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 contracting for prostitution, or more like contracting for slavery?
  • 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?

Religious issues

Different religions take different approaches to surrogacy, which often relate to their stances on assisted reproductive technology in general. See Religious Response to assisted reproductive technology for more information.

Judaism

Jewish law states that the parents of the child are the man who gives sperm and the woman who gives birth. 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 in-vitro fertilization.

Catholicism

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."

Psychological concerns

Surrogates

A study by the Family and Child Psychology Research Centre at City University, London, UK 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.

Instead of the popular expectation that surrogates feel traumatized after relinquishment, an overwhelming majority describe feeling empowered by their surrogacy experience. 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.

Child

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 7. Researchers found no differences in negativity, maternal positivity, or child adjustment.

Fertility tourism

Fertility tourism for surrogacy is driven by legal regulations in the home country, or lower price abrouad.

India

Further information: Commercial surrogacy in India

India is a main destination for surrogacy. Indian surrogates have been increasingly popular with fertile couples 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.

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.

Russian Federation

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 3 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) doesn’t matter. On 4 August 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.

United States

The United States is sought as a location for surrogate mothers by couples seeking Green Card in that country, since the resulting child can get birthright citizenship in the United States, and can thereby apply for Green Cards for the parents when turning 21 years of age.