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Surrogacy

[sur-uh-guh-see, suhr‐]

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. Surrogacy is a controversial, and in some jurisdictions, illegal, medical procedure.

Terminology

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

In traditional surrogacy (aka 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; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra cervical insemination) which is performed at a fertility clinic.

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 themselves 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 well off 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 excellent medical infrastructure, 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 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 male homosexual couple.

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. Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks.

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.

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 firms, 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 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 New South Wales has no legislation governing surrogacy at all.

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.

Canada

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

New Zealand

Commercial surrogacy was banned by the Human Assisted Reproductive Technology Act 2004. Altruistic surrogacy is allowed.

France

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

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. India is emerging as a leader in international surrogacy. 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.

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 it's 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.

United Kingdom

Commercial surrogacy arrangements are illegal in the United Kingdom. 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.

Netherlands and Belgium

Surrogacy is legal in Netherlands and Belgium.

United States

Compensated surrogacy arrangements are illegal in Washington, Michigan, Utah, Arizona, New Mexico and New York. Additionally, four states in the US have held that such contracts, while not illegal, are unenforceable. California is widely recognized as one of the most friendly jurisdictions for parties desiring to enter into a surrogacy arrangement. There are many states at the present time that issue pre-birth orders placing the correct parent names on the baby's birth certificate.

Compensated surrogacy is legal in Oregon, Texas and Arkansas. Texas requires the surrogate mother to be a resident of Texas. Arkansas does not require surrogates to be residents. Intended parents and surrogates resident in any state of the USA can enter into a legal surrogacy arrangement in Arkansas. Provided the child is born in Arkansas and that financial considerations are dispensed from Arkansas the contract will be recogized by Arkansas courts and upheld.

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.. However, this 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. However, high maternal death rates are found in the poorest sections of the population in India. They may not get access to proper medical facilities in time, or there are those who opt not to access them because of superstition. Surrogate mothers in India enrolled in commercial surrogacy programs are usually cared for with advanced medical, nutritional and overall care.

Fictional representation

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.
The heroine of Heinlein's 1966 novel The Moon is a Harsh Mistress describes herself as a "professional host-mother".
The character Phoebe Buffay in US sitcom Friends was a gestational surrogate mother for her brother.
The character Fertility in Chuck Palahniuk's novel Survivor works as a commercial surrogate, although she is infertile herself.
In the 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.