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Intended parents may seek a surrogacy arrangement when medical issues make pregnancy not possible or make carrying a pregnancy risky or otherwise undesirable, or because the intended parent or both parents are male. 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 referred to as altruistic surrogacy. The legality and costs of surrogacy vary widely between jurisdictions, sometimes resulting in interstate or international surrogacy arrangements.
HistoryHaving 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.
One well-known example is the Biblical story of Sarah and Abraham, a nomadic Hebrew couple who were 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 fled 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:
- 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.
- 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 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 intends to create and raise a child.
- 2009 – The Chinese government cracked down on enforcement of the gestational-surrogacy ban, and Chinese women began coming forth with complaints of forced abortions.
Types of surrogacy
Gestational surrogacy (GS)A surrogate is inseminated with an embryo created by IVF, using the egg and sperm of the intended parents. The resulting child is genetically related to the intended parents, and genetically unrelated to the surrogate.
Gestational surrogacy and egg donation (GS/ED)A surrogate is inseminated with an embryo created by IVF, using intended father's sperm and a donor egg. The resulting child is genetically related to intended father and genetically unrelated to the surrogate.
Gestational surrogacy and donor sperm (GS/DS)A surrogate is inseminated with an embryo created by IVF, using intended mother's egg and donor sperm. The resulting child is genetically related to intended mother and genetically unrelated to the surrogate.
Gestational surrogacy and donor embryo (GS/DE)A surrogate is inseminated using donor embryo; such embryos may be available when others undergoing IVF have embryos left over, which they opt to donate to others. The resulting child is genetically unrelated to the intended parent(s) and genetically unrelated to the surrogate.
Traditional surrogacy (TS)This involves naturally or artificially inseminating a surrogate with intended father's sperm via IUI, IVF or home insemination. With this method, the resulting child is genetically related to intended father and genetically related to the surrogate.
Traditional surrogacy and donor sperm (TS/DS)A surrogate is artificially inseminated with donor sperm via IUI, IVF or home insemination. The resulting child is genetically unrelated to the intended parent(s) and genetically related to the surrogate.
Main article: Surrogacy laws by countryAs of 2013, locations where a woman could legally be paid to carry another's child through IVF and embryo transfer included 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?
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 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.
Ethical issuesEthical 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 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?
CatholicismParagraph 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."
JudaismJewish 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 IVF.
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.
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.
ChildA 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.
Main article: Fertility tourismFertility tourism for surrogacy is driven by legal regulations in the home country, or lower price abroad.
Further information: Commercial surrogacy in IndiaIndia 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 $20,000 and $30,000 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 FederationLiberal 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.
United StatesThe United States is sought as a location for surrogate mothers by 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.
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