Surrogacy

Should surrogacy be illegal because of ethical isssues?

 

1.    Preface

 

I chose this subject because of a short documentary I recently watched called ‘Damaged Babies & Broken Hearts: Ukraine’s commercial surrogacy industry’ by Foreign Correspondent, ABC news. Ukraine is one of the most visited European countries for surrogacy, since surrogacy is legal and affordable in Ukraine. However, the video described the dark sides of Ukrainian surrogacy, including abandoned children and exploitation of surrogate mothers. I have always been intrigued by the concept of surrogacy, but the documentary really sparked my interest and I decided to look further into the subject.

2.    Introduction

 

The main research question of this project is ‘Should surrogacy be illegal because of ethical issues?’, a question than can be divided into multiple sub-questions.

In the first chapter, ‘What is surrogacy?’, the definition, the different kinds, and the process of surrogacy is explained. This answers the first sub-question.

In the second chapter, ‘The ethics of surrogacy’, the ethical aspects of surrogacy are discussed, including bioethics and exploitation. This answers the second sub-question.

In the third chapter, different surrogacy laws from various countries are described. This answers the third sub-question.

In the fourth chapter, a conclusion based on the information described in this project is given. This answers the main research question.

3.    What is surrogacy?


Surrogacy is an arrangement where a woman (a surrogate mother) agrees to give birth to a child for someone else who will become the child’s parent(s) after birth. Someone might use surrogacy when pregnancy is medically impossible, pregnancy is too dangerous or when a male couple/single man wants a child.

When a surrogate mother is given money as a compensation for carrying and birthing the child, instead of only for pregnancy-related expenses, it is called commercial surrogacy or compensated surrogacy. The opposite of commercial surrogacy is altruistic surrogacy, where a surrogate mother is only given money for pregnancy-related expenses or none at all.

There are many more types of surrogacy besides commercial surrogacy and altruistic surrogacy, which makes every surrogacy arrangement different. For example, the location, intermediaries, and the biological process of a surrogacy agreement can vary.

The first step of a surrogacy arrangement is the location where the surrogacy is planned to take place. If (commercial) surrogacy is illegal in a country, people might want to find a surrogate mother abroad; this is called international surrogacy. When a surrogacy is done inside the country of the intended parents, it is called domestic surrogacy.

The second step is deciding whether the surrogacy is going to be done independently or assisted by an agency. While independent surrogacy is usually more affordable, an agency surrogacy is better for people who do not want to handle all aspects of the surrogacy process themselves. 

The third step is deciding how the embryo will be created. The first option is traditional surrogacy, where the intended father’s sperm and the surrogate mother’s egg are used, usually through artificial insemination or IVF (in vitro fertilization). So, the sperm is either placed directly into the uterus, or the sperm is combined with the egg outside the uterus and placed afterwards. This way, the intended mother has no genetic relationship to the child, while the surrogate mother does. When using gestational surrogacy, the intended parents use their own egg and sperm or use a donor’s egg or sperm. This process is done through IVF: the sperm is combined with the egg outside the uterus and later placed inside the uterus. The latter option is more common.

When a surrogate mother is ready to give birth, the intended parents will often join the surrogate at the hospital and take the baby home when it is ready to leave.

4.    The ethics of surrogacy

 

4.1 What are ethics in general?

 

Ethics are based on what is seen as right and what is seen as wrong and how that is integrated in our society. Ethical views vary a lot between different people, nations, and cultures. Smaller groups of people, like business fields and religious communities, can also have their own ethics.

Ethical issues are issues relating to beliefs about what is morally wrong and what is morally right. Ethical issues do not have one simple answer, because everyone looks at it differently. Examples of what ethical issues are about are:

  • Honesty and integrity.
  • Objectivity.
  • Carefulness.
  • Openness.
  • Respect for intellectual property.
  • Confidentiality.
  • Responsible publication.
  • Legality.

 

4.2 Ethics in surrogacy

 

Numerous ethical questions have been raised with regards to surrogacy, such as concerns about social justice, women's rights, child welfare, and bioethics.

The main ethical arguments against surrogacy are:

  1. Surrogacy requires a tremendous amount of both physical and emotional effort and pregnancy and birth have many risks, including death; it can never be paid back.
  2. Surrogate mothers are taken advantage of because they are usually lower-class and poor and forced into surrogacy because they are desperate for money.
  3. Surrogacy should not be seen as the first option for infertile/same sex couples when there are thousands of kids in foster care waiting for new parents.
  4. A surrogate mother builds a relationship with her child while he/she is in the womb. Therefore, surrogacy is harmful for all parties involved:
    • The surrogate mother, who needs to give her child away at birth.
    • The child, who is taken away from their mother at birth.
    • The intended parents, who do not have a relationship with the child at first sight like the surrogate mother did.

However, these arguments are based on opinions, not on facts. Has there been any research done to support these claims?

  1. No one can answer this better than the surrogate mothers themselves. In this small study, 20 surrogate mothers who completed different kinds of surrogacy were interviewed both one year after their surrogacy and ten years after their surrogacy. All surrogate mothers were still positive about their surrogacy arrangement and no one regretted their involvement in surrogacy. In another study, 34 surrogate mothers responsible for 102 surrogacy agreements were examined 7 years after their last surrogacy agreement. They reported that 87% of their surrogacy agreements had been positive experiences. These studies are too small to make a proper statement about surrogacy mothers in general, but it does show that most surrogates had a positive experience.
  2. In the next chapter, laws which prevent this from happening are discussed.
  3. (It needs to be stated that because surrogacy is not always done through a surrogacy agency and therefore not logged, surrogacy statistics are just an estimate.) Around 140.000 children are adopted each year in the US, while only around 750 babies are born using gestational surrogacy in the US. This proves that adoption is still an immensely popular option.
  4. The argument for this claim is based on the concept of maternal-fetal attachment (MFA): a relationship between a pregnant woman and her fetus. The concept of MFA is relatively new and has not been studied well, in contrary to post-partum attachment, which is well researched. MFA is manifested in behaviours that show care and commitment to the fetus, including nurturance (eating well, avoiding harmful substances such as alcohol), comforting (stroking the belly), and physical preparation (buying baby clothes and toys). Some of these can also be done by the intended parents to form a relationship with the child. In short, there’s currently not enough research done to deem this claim true or false.

 

5.     Surrogacy laws

 

This chapter is about the (il)legal aspects of surrogacy.

5.1 What are laws and legal aspects?

 

The Cambridge Dictionary defines the law as a ‘rule, usually made by a government, that is used to order the way in which a society behaves’. The whole collection of laws (of a country/nation) is called legislation. An act is illegal when it is forbidden by the legislation of the location the act had been carried out. Legislation reflects, among other issues, the countries ethics, by defining laws that forbid acting against their ethics. This is especially true for surrogacy laws.

Legal literally means ‘by law’. The legal aspects of something are the considerations that must be taken into account because of relevant laws.

 

5.2 Types of surrogacy laws

 

There are roughly three types of surrogacy laws:

  • All types of surrogacy are legal. This is the case in multiple US states, Ukraine, Czech Republic, India (for locals only), Nigeria, Russia, etc. In US states where surrogacy is legal, there are multiple protective measures taken to ensure everyone is comfortable in the process. The surrogate mothers are screened to ensure they understand the process, that they are emotionally ready for surrogacy, that they are in good health and that they have the support they need.
  • Only altruistic surrogacy is legal. This is a quite common law practiced in many countries, including Australia, Brazil, most places in Canada, Hong Kong, the Netherlands, the UK and New Zealand. The intended parents are only allowed to pay back pregnancy-related expenses. This way, only women who genuinely want to be a surrogate mother qualify to become a surrogate mother and it is certain that they are not doing it for the money.
  • All types of surrogacy are illegal. Some countries decided to fully prohibit surrogacy, including Finland, France, Germany, Iceland, Sweden, and Switzerland. People who are against surrogacy think this is a good thing, however, this does not mean no surrogate agreements are made. Intended parents can also go abroad to find a surrogate mother or get it done illegally, which is typically worse for all parties involved.

 

5.3 Laws that protect surrogate mothers, intended parents and children

 

In countries where surrogacy is legal, or more specifically, where commercial surrogacy is legal, many ethical questions and criticism arise. However, there are multiple laws that protect all parties involved:

  • In US states where surrogacy is legal, there are multiple protective measures taken to ensure everyone is comfortable in the process:
    • The surrogate mothers are screened to ensure they understand the process, that they are emotionally ready for surrogacy, that they are in good health and that they have the support they need.
    • The contract between the surrogate mother and the intended parents is well-developed, so there will be no surprises along the way as there could be with surrogacy abroad.

But many Americans find surrogacy to be too expensive in the US and travel abroad to find a surrogate mother. This is called fertility tourism: the practice of traveling to another country for fertility treatments. Ukraine and Russia are popular foreign surrogacy destinations for Americans. However, there is a reason surrogacy is much cheaper abroad; it comes with more risks. Examples are:

  • Health risks. Not all international surrogates are as thoroughly screened as those in the United States. For example, while surrogacy agencies will probably complete a medical screening, many surrogates are not psychologically screened like in the US. The surrogate mother might not be ready for the process but start anyways.
  • Legal risks. It can be a difficult process getting your child from abroad back to the US. For example, some countries do not allow pre- or post-birth parentage orders, which can prevent foreign intended parents from placing their name on the birth certificate or cause the surrogate mother to have inherent parental rights. 
  • Financial risks. While surrogacy might be cheaper abroad, there are a lot of extra costs to pay attention to. This includes legal representation, travel costs, immigration processes, extra medical procedures etc. Domestic surrogacy agencies are usually more transparent about what their fees are, what they cover, and which additional fees may occur.

 

6.    Conclusion

 

In this document, the definition and process of surrogacy is described, the ethics of surrogacy and the legal aspects have been discussed.

The main research question is “Should surrogacy be illegal because of ethical issues?”  After investigating the sub questions, it is now possible to explore the answers to the main question.

The main ethical issue is the exploitation of surrogate mothers, but also the concept of a woman carrying a baby that is not hers in general. Because of the vast amounts of ethical issues, there are multiple laws concerning surrogacy.

For example, in Canada, only surrogacy without compensation is allowed, so that there is no possibility that the surrogate mother is only doing it for the money. This is also the case in the UK and most of Australia.

Multiple countries in Europe, such as Germany and Switzerland, avoid ethical questions all in all by making all types of surrogacy illegal.

However, there are also many countries that do the exact opposite by having all types of surrogacy agreements be legal, such as Ukraine and India. While those laws can face a lot of criticism, it also attracts a lot of couples from countries where surrogacy is illegal.

The US, who has both states that do and states that don’t allow surrogacy, is frequently seen as having the best surrogacy system, since the legal aspects are well-developed and the surrogate mothers are thoroughly screened and well taken care of. However, this also makes it one of the most expensive countries to complete a surrogacy agreement.

We can conclude that surrogacy, as it is surrounded by many ethical issues, needs a lot of legislation to prevent acting against the ethics of countries/nations. As surrogacy is not widely spread, it can receive too little attention in the legal field, as many acts of surrogacy remain unseen in statistics and the law. But as one of the main goals of legislation is to prevent unethical acts, surrogacy is a good candidate for demanding more legal attention. The first step towards this happening could be to research for the actual numbers and statistics concerning surrogacy.

7.    Sources


https://en.wikipedia.org/wiki/Surrog acy
https://www.bbc.com/news/world-28679020
https://surrogate.com/about-surrogacy/types-of-surrogacy/types-of-surrogacy/
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https://adoptionnetwork.com/adoption-statistics#:~:text=How%20many%20children%20are%20adopted%20per%20year%3F,are%20voluntarily%20relinquished%20American%20babies
https://dictionary.university/Legal%20Aspects
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https://en.wikipedia.org/wiki/Surrogacy_laws_by_country
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Written in September 2020