Surrogacy is an arrangement in which a woman carries and delivers a child for another couple or person. This woman, the surrogate mother, may be the child's genetic mother (called traditional surrogacy), or she may be biologically unrelated to the child (called gestational surrogacy).
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.[1]
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. Because gestational surrogacy requires the implantation of a previously created embryo, that process always takes place in a clinical setting.
The intended parents, sometimes called the social parents, may arrange a surrogate pregnancy because of homosexuality, female infertility, or other medical issues which make pregnancy or delivery impossible, risky or otherwise undesirable. The intended parent may also be a single man or woman wishing to have his/her own biological child. Although the idea of vanity surrogacy is a common trope in popular culture and anti-surrogacy arguments,[2] there is little or no data showing that women choose surrogacy for reasons of aesthetics or convenience.[3]
The legality and costs of surrogacy vary widely between jurisdictions, with the result that there is a high rate of international and interstate surrogacy activity.
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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.[4]
In the United States, the issue of surrogacy was widely publicized 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.
There have been cases of clashes between surrogate mothers and the genetic parents; when unexpected complications with the fetus makes the genetic parents ask for an abortion even though the surrogate mother is opposing the abortion.[5][6]
The legal aspects of surrogacy in any particular jurisdiction tend to hinge on a few central questions:
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 they 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.[7]
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 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[8] 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 that have been raised with regards to surrogacy include:
According to professor Bryan Caplan, libertarians have, since Voltaire, emphasized the fact that it is not right to forbid people from doing things that others do not accept. However, according to Caplan also non-liberals should support paid surrogacy: creating a human life is almost always good and voluntary exchange is usually beneficial for all participants, also in surrogacy.[9]
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.
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.[10]
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.[11][12] Many surrogates intentionally try to foster the development of emotional attachment between the intended mother and the surrogate child.[13]
Instead of the popular expectation that surrogates feel traumatized after relinquishment, an overwhelming majority describe feeling empowered by their surrogacy experience.[14][12]
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.[15]
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