Surrogacy

Surrogacy is an arrangement whereby a woman agrees to become pregnant and deliver a child for a contracted party. She may be the child's genetic mother (the more traditional form of surrogacy), or she may, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo, the latter being an illegal medical procedure in some jurisdictions.

Terminology

Surrogacy or Surrogate means substitute. In medical parlance, the term surrogacy means using of a substitute mother in the place of the natural mother.

In traditional surrogacy (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others such as the biological father and possibly his spouse or partner. The child may be conceived via sexual intercourse (NI), home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination) which is performed at a fertility clinic. Sperm from the male partner of the 'commissioning couple' may be used, or alternatively, sperm from a sperm donor can be used. Donor sperm will, for example, be used if the 'commissioning couple' are both female or where the child is commissioned by a single woman.

In gestational surrogacy (aka the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is unrelated to the child (e. g. because the child was conceived using egg donation, sperm donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.

Altruistic surrogacy is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).

Commercial surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This procedure is legal in several countries including in India where due to high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes an emotionally charged and contentious ethical issue.

Rationale

Intended parents may arrange a surrogate pregnancy because of female infertility, or other medical issues which may make the pregnancy or the delivery risky. A female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy. Some homosexual male couples turn to surrogacy as an option in becoming parents.

Alternatively, the intended parent may be a single male wishing to have his own biological child, or a single woman who is unable to bring a pregnancy to full term.

Cost

In some cases, the compensation requested by the surrogate mother during the whole pregnancy period and post-natal rehabilitation period does not exceed EUR 7 000 in total. In the Caucasia (Georgia) total expenses related to the IVf attempt of obtaining pregnancy ( with surrogate mother and egg donor) are maximum 8400 Euros.

Some patients prefer the program with guarantee: "Take home baby". If the pregnancy was not obtained at the end of one year after the agreement was made or if a child is not born, the clinic and the agency must refund the full amount to the couple in case of such surrogacy program..

Surrogate Mothers

Surrogate Mothers may be relatives, friends, or previous strangers. Many surrogacy arrangements are made through agencies that help match up intended parents with women who want to be surrogates for a fee. The agencies often help manage the complex medical and legal aspects, as well as psychological profiles on the carriers involved. Surrogacy arrangements can also be made independently. In compensated surrogacies the amount a surrogate receives varies widely from nothing to more than $30,000. Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks. It is also advisable that the intended parents and the surrogate mothers have independent advocates to help them in the legal issues in surrogacy.

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 likely otherwise be inevitable.

Attorney Noel Keane is generally recognized as the creator of the legal idea of surrogate motherhood. However, it was not until he developed an association with physician Warren J. Ringold in the city of Dearborn, Michigan that the idea became feasible. Dr. Ringold agreed to perform all of the artificial inseminations, and the clinic grew rapidly in the early part of 1981. Though Keane and Ringold were widely criticized by some members of the press and politicians, they continued and eventually advocated for the passage of laws that protected the idea of surrogate motherhood. Bill Handel, who is a partner in a Los Angeles Surrogacy firm, also attempted to have such laws passed in California, but his attempts were struck down in the State Congress. Presently, the idea of surrogate motherhood has gained some societal acceptance and laws protecting the contractual arrangements exist in eight states.

In the United States, the issue of surrogacy was widely publicised in the case of Baby M, in which the surrogate and biological mother of Melissa Stern ("Baby M"), born in 1986, refused to cede custody of Melissa to the couple with whom she had 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 interests 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.

Legality

The legal aspects surrounding surrogacy are very complex and mostly unsettled. There is a default legal assumption in most countries that the woman giving birth to a child is that child's legal mother. In some jurisdictions the possibility of surrogacy has been allowed and the intended parents may be recognized as the legal parents from birth. Many states now issue pre-birth orders through the courts placing the name(s) of the intended parent(s) on the birth certificate from the start. In others the possibility of surrogacy is either not recognized (all contracts specifying different legal parents are void), or is prohibited.

Armenia

Armenia is a land-locked nation representing 10% of the original lands inhabited by the (mostly-killed or dispersed from 1893-1923) Indo-European Armenian people. In Armenia, a tiny Christian nation representing the incredible rebirth of a people subjected to genocide perpetrated by the long-ruling Muslim Turks and Kurdish overlords, birth rates are ironically low, and the issue is not as prevalent as it is in Georgia. Laws regulating it are just being worked out in the court system. Rulings and laws expected in 2011. Armenians tend to be traditional above and beyond the norm due to an inherent desire to retain and re-create the murdered portion of their nation. For this reason, alternate arrangements for births tend to be looked down upon. Things are changing quickly, however.

Australia

In all states in Australia, the surrogate mother is deemed by the law to be the legal mother of the child as well, and any surrogacy agreement giving custody to others is void. In addition in all states and the Australian Capital Territory arranging commercial surrogacy is a criminal offence, although the Northern Territory has no legislation governing surrogacy at all and there are no plans to introduce laws on surrogacy into the NT Legislative Assembly anytime soon [5].

In 2006 Australian senator Stephen Conroy and his wife Paula Benson announced that they had arranged for a child to be born through egg donation and gestational surrogacy. Unusually, Conroy was put on the birth certificate as the father of the child. Usually couples who make surrogacy arrangements in Australia must adopt the child rather than being recognised as birth parents, particularly if the surrogate mother is married. After the announcement, Conroy's home state of Victoria announced that they were reconsidering the Victorian laws that make surrogacy within the state almost impossible.

In 2009 Queensland Premier Anna Bligh told State Parliament that the Government would overhaul laws to make altruistic surrogacy legal based on recent recommendations. Commercial surrogacy would continue to be illegal.

Canada

Commercial surrogacy arrangements were prohibited in 2004 by the Assisted Human Reproduction Act. Altruistic surrogacy remains legal.

In the province of Quebec, contracts that involve surrogacy are unenforceable.

France

In France, since 1994 any surrogacy arrangement that is commercial or altruistic is illegal or unlawful and sanctioned by the law (art 16-7 du code civil).

Georgia (Country)

Since 1997 ovum and sperm donation and surrogacy is legal in Georgia. According to the law, a donor or surrogate mother has no parental rights over the child born. In Georgia the compensation of the surrogate mother does not exceed EUR 9 000 during the pregnancy period and after the birth of a child (post-natal rehabilitation period). The major part of the surrogate mother's compensation shall be paid after the seventeenth week of pregnancy and in the post-natal rehabilitation period. Surrogate Motherhood Center of Georgia. Surrogate Motherhood Center of Georgia

Hungary

Commercial surrogacy is illegal in Hungary

India

Main article: Commercial surrogacy in India

Commercial surrogacy has been legal in India since 2002.

India is emerging as a leader in international surrogacy and a destination in surrogacy-related fertility tourism. 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.

While clinics quote costs of a single successful cycle without complications of $14,000 to $25,000, less than 50% of tries are successful. An unsuccessful cycle will be roughly 1/3 to 1/2 the cost of a successful cycle, incurring IVF, surrogate recruitment and travel costs, without incurring the full surrogate compensation or delivery costs. A successful cycle may require additional costs, especially if the baby is born premature (intensive care costs) or if additional medical testing is required for either the baby or surrogate mother during the pregnancy.

Surrogacy in India is relatively low cost and the legal environment is favorable. 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.

The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY .” The following observations had been made by the Law Commission:

[1] Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

[2] A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

[3] A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

[4] One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

[5] Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

[6] The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

[7] Right to privacy of donor as well as surrogate mother should be protected.

[8] Sex-selective surrogacy should be prohibited.

[9] Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2010.

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.

Israel

In March 1996, the Israeli government legalized gestational surrogacy under the "Embryo Carrying Agreements Law." This law made Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state. A state-appointed committee permits surrogacy arrangements to be filed only by Israeli citizens who share the same religion. Surrogates must be single, widowed or divorced and only infertile heterosexual couples are allowed to hire surrogates. The numerous restrictions on surrogacy under Israeli law have prompted some intended parents to turn to surrogates outside of the country. Some turn to India because of its low costs. Others use US surrogates where an added bonus is an automatic US citizenship for the newborn.

Japan

In March 2008, the Science Council of Japan proposed a ban on surrogacy and said that doctors, agents and their clients should be punished for commercial surrogacy arrangements.

Netherlands and Belgium

Commercial surrogacy is illegal in Belgium and the Netherlands.

Saudi Arabia

Religious authorities in Saudi Arabia do not allow the use of surrogate mothers. They have instead suggested medical procedures to restore female fertility and ability to deliver. To this end, Saudi authorities sanctioned the world's first uterus transplant in an infertile woman.

Ukraine

Since 2002, surrogacy and surrogacy in combination with egg/sperm donation has been absolutely legal in Ukraine. According to the law a donor or a surrogate mother has no parental rights over the child born and the child born is legally the child of the prospective parents.

In Ukraine the start of introduction of methods of supporting reproductive medicine was given in eighties of the preceding century. It was Kharkov where the extracorporeal fertilization method was for the first time successfully applied in Ukraine, and thanks to use of extracorporeal fertilization there was born in 1991 a girl named Katy. Kharkiv was also the first in CIS countries to realize the Surrogacy Program. Many clinics dealing with surrogacy have been opened in Kiev.

Ukrainian surrogacy laws are very favorable and fully support the individual's reproductive rights. Surrogacy is officially regulated by Clause 123 of the Family Code of Ukraine and Order 771 of the Health Ministry of Ukraine. You can choose between Gestational Surrogacy, Egg/sperm Donation, special Embryo adoption programs and their combinations. No specific permission from any regulatory body is required for that. A written informed consent of all parties (intended parents and surrogate) participating in the surrogacy program is mandatory.

Ukrainian legislation allows intended parents to carry on a surrogacy program and their names will be on Birth certificate of the child born as a result of the surrogacy program from the very beginning. The child is considered to be legally "belonging" to the prospective parents from the very moment of conception. The surrogate can't keep the child after the birth. Even if a donation program took place and there is no biological relation between the child and intended parents, their names will be on Birth certificate (Clause 3 of article 123 of the Family Code of Ukraine).

Embryo research is also allowed, gamete and embryo donation permitted on a commercial level. Single women can be treated by known or anonymous donor insemination. Gestational surrogacy is an option for officially married couples and single women. There is no such concept as gay/lesbian marriage in Ukraine, meanwhile such patients can be treated as single women/men.

United Kingdom

Commercial surrogacy arrangements have been legal in the United Kingdom since 2009. Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship can be recognized under S 30 of the Human fertilization and Embryology Act 1990 under which a court may make parental orders similar to adoption orders. How this came about is one of those occasions when an ordinary person can change the law. Derek Forrest was a family solicitor in a Preston law firm who was approached by a couple facing proceedings by their local authority. The wife had no womb but did have ova which could be fertilized by her husband's sperm. This they did and a surrogate gave birth to their child. When they took the child home to their Cumbrian address the local authority insisted that they should go through the procedure for registering as foster parents for their child even though genetically it was their own child. It was quickly realized that there was no defense to these proceedings and the only possibility was to adopt their own child. Derek Forrest wrote to The Times setting out the predicament his clients found themselves in and elicited a lot of favorable response. Then chance took a hand because the barrister acting for the parents knew the Member of Parliament who represented the parents. It just so happened that the Human Fertilization and Embryology Bill was going through Parliament at the time and the Barrister spoke to the MP to see what could be done. The MP then got things moving and got s 30 drafted and passed as an amendment through parliament. The result was that the couple was the first to obtain parental orders under the new Act.

United States

Many states have their own state laws written regarding the legality of surrogate parenting. It is most common for surrogates to reside in Florida and California due to the surrogacy-friendly laws in these states. It is illegal to hire a surrogate in New York, and even embryonic transfers must be done in other states such as New Jersey.

Ethical issues

Mother-child relationship

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. Instead of the popular expectation that surrogates feel traumatized after relinquishment, an overwhelming majority describe feeling empowered by their surrogacy experience. In fact, quantitative and qualitative studies of surrogates over the past twenty years, mostly from a psychological or social work perspective, have confirmed that the majority of surrogates are satisfied with their surrogacy experience, do not experience "bonding" with the child they birth, and feel positively about surrogacy even a decade after the birth. Assessing such studies from a social constructionist perspective reveals that the expectation that surrogates are somehow "different" from the majority of women and that they necessarily suffer as a consequence of relinquishing the child have little basis in reality and are instead based on cultural conventions and gendered assumptions. Many surrogates form close and intimate relationships with the intended parents. When the greatness of their efforts is acknowledged, they recall their surrogacy experience in the years to come as the most meaningful experience of their lives.

Compensated surrogacy

Also variously called "commercial surrogacy" or "paid surrogacy," compensated surrogacy refer to a form of surrogate pregnancy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well-off infertile couples who can afford the cost involved. This procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand, and ready availability of poor surrogates, it is reaching industry proportions. The procedure involves willing and medically fit surrogate mothers being impregnated in-vitro with the egg and sperm of couples unable to conceive on their own. Commercial surrogacy has been legal in India since 2002 and in many other countries, including the United States. But India is emerging as a leader making it into what can be called a viable industry rather than a rare fertility treatment.

There is concern that if this practice keeps growing the way it is, it could change from a medical necessity for infertile women to a convenience for the rich (especially the wealthy couples of the West) choosing commercial surrogacy over the stress from a natural childbirth. It is feared this may cause the whole industry to be "farmed out."

Some bioethicists are concerned that Indian surrogates are being badly paid for their surrogacy and that they are working as surrogates in a country with a comparatively high maternal death rate. However high maternal death rate is found in the poorest of the poor section of the population in India who may not get access to proper medical facilities in time or from amongst many who opt not to access them because of superstition and illiteracy. Surrogate mothers in India under commercial surrogacy programs on the other hand usually are carefully chosen, cared for with amongst the best highly advanced medical, nutritional and overall care available in the field anywhere in the world and medical tourism in India is already a flourishing industry. Teams of maids cook and doctors look after the surrogate mothers in the clinics which care for the women during pregnancy and delivery, and counsel them afterward.

Supporters of commercial surrogacy argue that opposite to the practice is based on sexist notions regarding the need to protect women from their own judgment. Bioethicist Jacob M. Appel, one such supporter of commercial surrogacy, has written that "if men could serve as surrogates...they would be admired as entrepreneurs."

Citizenship of Children born

In a landmark judgment in a case which had no precedents in the country, the Gujarat State High Court in India conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district. Raising a lot of questions related to surrogacy, the bench observed, “We are primarily concerned with the rights of two newborn, innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance.” After considering the case laws related to surrogacy of countries like Ukraine, Japan and the USA, the court decided the case at hand by inclining to recognize the surrogate mother as the natural mother of the children. And since the woman is Indian, the children were granted Indian citizenship and passports under the legal provisions. However as India does not allow full fledged dual citizenship, the children will have to convert to Overseas Citizenship of India if they are also going to be taking foreign citizenship of their biological parent's country.

Fictional representation

Films and other fiction depicting emotional struggles of assisted reproductive technology have had an upswing first in the latter part of the 2000s decade, although the techniques have been available for decades. Yet, the amount of people that can relate to it by personal experience in one way or another is ever growing, and the variety of trials and struggles is huge.

• In Robert A. Heinlein's 1961 science fiction novel Stranger in a Strange Land, TV reporters exult that socialite Cynthia Duchess has decided to have the Perfect Baby, with the use of a sperm donor, an egg donor, and a surrogate mother.
• In the Metal Gear video game series, the character EVA was the gestational surrogate mother who gave birth to Solid Snake and Liquid Snake.
• The heroine of Heinlein's 1966 novel The Moon Is a Harsh Mistress describes herself as a "professional host-mother".
• The 1986 novel To Have and To Hold by Deborah Moggach (and the TV series on which it is based) has surrogacy as its central theme.
• The character Phoebe Buffay in hit US sitcom Friends was a gestational surrogate mother for her brother and his wife.
• The character Fertility in Chuck Palahniuk's novel Survivor works as a commercial surrogate, although she is infertile herself.
• In the 2008 film Baby Mama, starring Tina Fey and Amy Poehler, Amy Poehler's character is a surrogate to Tina Fey's character.
• The Character Leah Patterson/Baker was surrogate to her friend Sally Fletcher and husband Flynn Saunders in the Australian soap opera Home and Away.
• In the film Chori Chori Chupke Chupke Madhu becomes a surrogate mother for Raj Malhotra and his wife Priya after Priya suffers an injury that causes her to become infertile.
• The character Christina McKinney in Ugly Betty acts as a surrogate for Wilhelmina Slater.
• The character Morgan Braithwaite in New Zealand's Serial Drama, Shortland Street, is an illegal surrogate for her infertile friends, Cindy and Trent.
• The character Ganondorf from The Legend of Zelda series is the surrogate child of Twinrova.
• Outer limits has an episode where an alien embryo is implanted in a surrogate the episode is called 'surrogate'
• The character Rachel Berry from Glee was through a surrogate mother, played by Idina Menzel, to two gay fathers.

See also

• In-vitro fertilization
• Embryo transfer
• Embryo donation
• Infertility
• Fertility
• Fertility tourism
• Reproduction
• Artificial insemination
• Third party reproduction
• Repugnant market
• Bioethics
• Sperm donation

External links

• Surrogacy - the issues
• Indian women carrying babies for well-off buyers, 'Wombs for rent' pleases women and customers, but raises ethical questions; Monday, December 31, 2007; The Associated Press; CBC News; Canadian Broadcasting Corporation
• Paid surrogacy driven underground in Canada: CBC report; Wednesday, May 2, 2007; CBC News; Canadian Broadcasting Corporation
• The government is working on drafting a new law to police surrogate pregnancies amid fears that the country's booming rent-a-womb industry is running out of control; Thursday, Jan 1, 2009; NDTV.com
• A Jerusalem Post article
• PBS NOW investigative documentary into unregulated surrogacy in the United States produced by Habiba Nosheen and Hilke Schellmann.

Surrogate Motherhood Center of Georgia