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Surrogacy

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Surrogacy is a method of reproduction 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, in some jurisdictions an illegal medical procedure.

Terminology

A surrogate mother is the woman who is pregnant with the child and intends to relinquish it after birth.[1] The word surrogate, from Latin subrŏgare (to substitute), means appointed to act in the place of.[citation needed] The intended parent(s) is the individual or couple who intends to rear the child after its birth.[1]

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, either male or female. 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).[1]

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 referred to by the emotionally charged and potentially offensive terms "wombs for rent", "outsourced pregnancies" or "baby farms".

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.

Alternatively, the intended parent may be a single male or a single woman who is unable to bring a pregnancy to full term.

Surrogates

Surrogates may be relatives, friends, or previous strangers. Many surrogate 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 involved. Surrogacy arrangements can also be made independently. In compensated surrogacies the amount a surrogate receives varies widely from almost nothing above expenses to over $30,000.[citation needed] Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks.

It is estimated that in the United States, the payment for a surrogate mother ranges between US$10,000 and $30,000, the whole procedure can cost $45,000 to $60,000+. According to a poll on http://www.surromomsonline.com, fees anywhere from $10,000 to 30,000+ are considered fair by the surrogates themselves; with most voting in the $17,000-$22,000 range. The fees for the rest of the process- including fertility clinics; lawyers; medical fees; and agencies and/or egg donors (if they're used) generally cost more than the fee going to the surrogate. Gestational surrogacy costs more than traditional surrogacy, since more complicated medical procedures are required. Surrogates who carry a baby for a family member (i.e., sister or daughter) usually do so for expenses only.

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. For example, chapter 16 of the Book of Genesis relates the story of Sarah's servant Hagar bearing a child to Abraham for Sarah and Abraham to raise. Babylonian law and custom allowed this practice and infertile woman could use the practice to avoid the divorce would likely otherwise be inevitable.[2]

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.[3]

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 eventually awarded custody to Melissa's biological father William Stern and his wife Elizabeth Stern, rather than to the surrogate Mary Beth Whitehead.

Legality

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.

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 many states arranging commercial surrogacy is a criminal offence, although the Northern Territory has no legislation governing surrogacy at all [6].

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.[4][5] 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.[6]

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.[7]

Canada

Commercial surrogacy arrangements were prohibited in 2004 by the Assisted Human Reproduction Act. Altruistic surrogacy remains legal.[8]

In the province of Quebec, any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null. [9]

France

In France, Since 1994, surrogacy, commercial or not is considered as unlawful and sanctioned by the law (art 16-7 du code civil).[10]

Georgia

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.

India

Commercial surrogacy has been legal in India since 2002.[11]

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. [12]

Of a US$20,000 package for a gestational surrogate, approximately US$6,000 will be paid to the surrogate as surrogate compensation. [13]

While clinics quote costs of a single successful cycle without complications of $14,000 to $25,000[13], 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[14] (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.

Some clinics in India are now offering NI using a surrogate.

In general, the more complicated issues is working with one's embassy or consulate to gain a passport for the baby. The U.S. consulate in Mumbai has been processing Consular Reports of Birth Abroad for the intended parents of surrogate babies with relatively clear cut rules. While the consulate hasn't formally published the rules, they are available via email and reprinted on some web sites[15]. Other consulates and embassy's have not made as much progress.

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.[12]

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[16]. 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.[17] 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.[18]

Netherlands and Belgium

Commercial surrogacy is legal in Belgium, but illegal in 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.[19]

Ukraine

Since 2002, surrogacy is 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.

United Kingdom

Commercial surrogacy arrangements are illegal in the United Kingdom.[20] 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.

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.[21] 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.[22] Many surrogates intentionally try to foster the development of emotional attachment between the intended mother and the surrogate child.[23] Instead of the popular expectation that surrogates feel traumatized after relinquishment, an overwhelming majority describe feeling empowered by their surrogacy experience.[24] 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[25]. 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[26]. Still, surrogacy continues to be a widely debated subject which has been widely criticised by feminists, who claim that surrogate motherhood is a form of commodifying and dismembering the female body and thus a patriarchal form of violence, not unlike prostitution.

Compensated surrogacy

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.[27] However, high maternal death rates are found in the poorest sections of the population in India. Surrogates may not get access to proper medical facilities in time, or may not access them because of superstition.

However, surrogate mothers in India enrolled in commercial surrogacy programs are usually cared for with advanced medical, nutritional, and overall good care.

Fictional representation

See also

References

  1. ^ a b c "Assisted Reproductive Technology (ART) Glossary". Reproductive Technology Council. Retrieved 2008-01-06.
  2. ^ Postgate, J.N. (1992). Early Mesopotamia Society and Economy at the Dawn of History. Routledge. p. 105. ISBN 0415110327. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)
  3. ^ Map of laws by jurisdiction from The American Surrogacy Center (TASC)
  4. ^ Coorey, Phillip (2006-11-07). "And baby makes five - the senator, his wife and the surrogate mothers". The Sydney Morning Herald. Retrieved 2008-01-04.
  5. ^ Nader, Carol (2007-12-03). "Senator wins paternity battle". The Age. Retrieved 2008-01-04.
  6. ^ Australian Associated Press (2006-11-07). "Surrogacy laws being reviewed, says Premier". news.com.au. Retrieved 2008-01-04.
  7. ^ Odgers, Rosemary (2007-12-03). "Surrogacy to be decriminalised". Courier Mail. Retrieved 2008-04-23.
  8. ^ Assisted Human Reproduction Act
  9. ^ Civil Code of Québec, 1991, c.64, article 541
  10. ^ French civil code
  11. ^ The Associated Press (2007-12-30). "India's surrogate mother business raises questions of global ethics". Daily News. Retrieved 2008-07-14.
  12. ^ a b Regulators eye India's surrogacy sector. By Shilpa Kannan. India Business Report, BBC World. Retrieved on 23 Mars, 2009
  13. ^ a b Surrogacy Costs By GlobalDoctorOptions.com. Retrieved on 16 June, 2009
  14. ^ Full Text Decision of the Manji Case By G R Hari, Indian Surrogacy Law Centre, Indiansurrogacylaw.com
  15. ^ Getting U.S. Citizenship for the Baby By GlobalDoctorOptions.com. Retrieved on 16 June, 2009
  16. ^ Teman, Elly. "The Last Outpost of the Nuclear Family: A Cultural Critique of Israeli Surrogacy Policy," forthcoming in: Birenbaum-Carmeli, Daphna and Yoram Carmeli (eds.), Kin, Gene, Community: Reproductive Technology among Jewish Israelis, Oxford: Berghahn Books.
  17. ^ Weisberg, D. Kelly. 2005. The Birth of Surrogacy in Israel. Florida: University of Florida Press
  18. ^ http://www.japantoday.com/jp/news/430424 Kyodo News
  19. ^ "Medical First: A Transplant Of a Uterus". New York Times.
  20. ^ [1] from Childlessness Overcome Through Surrogacy (COTS)
  21. ^ MacCallum, Fiona et al. 2003. Surrogacy: The experience of commissioning couples Human Reproduction, Vol. 18, No. 6, 1334-1342; Vasanti Jadva et al. 2003. Surrogacy: the experiences of surrogate mothers. Human Reproduction, Vol. 18, No. 10, 2196-2204; Golombok, Susan et al., 2004. Families Created Through Surrogacy Arrangements: Parent-Child Relationships in the 1st Year of Life. Developmental Psychology, v40 n3 p400-411
  22. ^ Teman, Elly (2003) "The Medicalization of 'Nature' in the Artificial Body: Surrogate Motherhood in Israel," Medical Anthropology Quarterly 17 (1):78-98.[2]
  23. ^ Teman, Elly. 2003. "Knowing the Surrogate Body in Israel," in: Rachel Cook and Shelley Day Schlater (eds.), Surrogate Motherhood: International Perspectives, London: Hart Press, pp. 261-280[3]
  24. ^ Ragone, Helena. Surrogate Motherhood: Conception in the Heart. 1994. Westview Books; Teman, Elly. 2001. "Technological Fragmentation and Women's Empowerment: Surrogate Motherhood in Israel," Women's Studies Quarterly, 31 (3&4):11-34.
  25. ^ Teman, Elly. 2008. "The Social Construction of Surrogacy Research: An Anthropological Critique of the Psychosocial Scholarship on Surrogate Motherhood," Social Science & Medicine. Volume 67, Issue 7, October , Pages 1104-1112. [4]
  26. ^ Teman, Elly. 2008. "The Social Construction of Surrogacy Research: An Anthropological Critique of the Psychosocial Scholarship on Surrogate Motherhood," Social Science & Medicine. Volume 67, Issue 7, October , Pages 1104-1112. [5]
  27. ^ "India's baby farm". The Sun-Herald. 2008-01-06. Retrieved 2008-01-06.
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