Surrogate Motherhood: A Dilemma of Contemporary Society?

MIPP- Politiche sociali

Curated by Claudia Di Gangi, Senior Policy Analyst & Tessa Piccinin, Junior Policy Analyst

Surrogate Motherhood: A Dilemma of Contemporary Society?

Abstract:

This policy paper aims to contribute to the debate on surrogate pregnancy by providing some clear and apolitical views on this very controversial topic. A surrogate mother is a woman who, for financial or other reasons, agrees to bear a child for another person, or couple, who is incapable, or unwilling, of conceiving herself. In other words, she conceives, gestates and delivers a baby on behalf of another person who is subsequently the "real" (social and legal) parent of the child. Though the practice of surrogacy has already become widespread in Western countries, it has also generated countless challenges for the law because it adds a third dimension to the meaning of motherhood. Throughout the analysis of the legal dimension and the social critiques raised mainly by neo-marxists and feminist scholars, we aim to find a common ground in which the practice can be developed and safely guaranteed.

The paper is articulated as follows: after an introductory section in which the meaning and facets of the phenomenon of surrogacy will be clarified, the second section provides examples of best practices by surveying comprehensive legislations on the topic. Finally, the last section develops policy options aimed at improving the management of this legal arrangement, partly drawing on first-hand experiences of people who have recurred to this practice.

Index

1. Gestational surrogacy: the origins and definitions
2. Legal overview of the practice in various countries and the case of Canada
3. First-hand experiences
4. Criticism
5. Policy proposals
6. Conclusion

1. Gestational surrogacy: the origins and definitions

The practice of gestational surrogacy, also known as surrogacy, is defined by the Yale Medicine website as ‘the process in which a woman carries or delivers a child for a couple or individual’. Before briefly explaining the history of this phenomenon, it is important to draw a distinction between two types of surrogacy: altruistic surrogacy and commercial surrogacy. The first allows for a legal contract involving surrogacy to be stipulated without any money compensation, except for, sometimes, necessary expenses related to the pregnancy. Commercial surrogacy, instead, allows for the surrogate to be compensated for her service. Another important distinction to be drawn is that between traditional and gestational surrogacy:

The practice of surrogacy has always occurred throughout history, as the custom of women bearing the children of kings, queens and nobles who could not procreate has always existed. Despite this, the contemporary adoption of this process in a legal way has caused many concerns. The development of surrogacy as a legal pratique went hand in hand with the improvement of reproductive technology.

In order to provide a brief history of the phenomenon, let us recall that in the United States, the first legal surrogacy agreement was drafted in 1976. Improvements in IVF techniques (in vitro fertilization) helped speed the process along. It was then in 1985 that the first successful gestational surrogacy occurred: the gestational surrogate bore a child to whom she was unrelated, thus effectively ending the biological link between the surrogate and the child.

Canada too is at the forefront of the legal adoption of gestational surrogacy. Canada decided to study the phenomenon in depth before beginning the regulatory process. In 1989, the Royal Commission on New Reproductive Technologies was appointed, and published its first report with findings and recommendations in 1993. However, it was not until 2004 that the first law on reproductive technologies was passed, demonstrating the complexity of legislating on this issue and of public debate. In the next section we will delve in in greater detail on the current state-of-the-art of the legislative status of gestational surrogacy in Canada.
In Europe, instead, gestational surrogacy is still a controversial topic and legal surrogacy is still prohibited in many countries. All forms of surrogacy are still prohibited in Italy, France, Bulgaria, Germany, Portugal and Spain.
However, in this highly globalized world, the presence of different legislations on surrogacy allows the opportunity of trans-national surrogacy. People intending to carry on this practice can go abroad in search of opportunities for surrogacy, better techniques, cheaper costs. Legal problems arise, indeed, returning to one's home country. Specifically, issues concern the legal status of the child, and the legal recognition of the parents.

The question of surrogacy is also strictly connected to that of adoption. People, be they individuals or couples, can sometimes recur to surrogacy when options for adoption are not viable in their counties.

1. Legal overview of the practice in various countries and the case of Canada

Surrogacy agreements are legal in some parts of Europe, such as the UK, Belgium, and the Netherlands, however commercial surrogacy is not. This is a nonlegal agreement, so, although payments may be made, it is not enforced by law, and agencies cannot be used.

In some countries, such as France, Italy, and Germany, all forms of using a surrogate mother are illegal. So, it is prohibited by law here. Surrogacy is popular in the USA, and some of the top countries include Ukraine, Colombia, Mexico, and Georgia. In these surrogacy legal countries, commercial surrogacy is allowed.

That said, it is still important to know each country’s specific surrogacy laws.

From a European perspective, various rulings by the European Court of Human Rights (ECHR) and the Italian Constitutional Court, as well as individual Italian local courts, have intervened in the matter of surrogacy, providing at times conflicting interpretations of the specific legislation. Hence, although Italian jurisprudence has declared the illegitimacy of the ban on heterologous MAP practices, surrogacy is still illegal, as is in France, Spain and Germany. In Belgium and the Czech Republic, there is no specific legislation in this regard. One of the European countries to allow this practice is the United Kingdom, which allows altruistic surrogacy only, as does Denmark. The mother cannot receive any compensation other than compensation for the expenses incurred during the pregnancy. The practice is also legal in Russia and the Netherlands.

In Greece, surrogacy is allowed, but, to legally resort to it, permission from a court of law is required, certifying that the person or couple requesting it cannot otherwise have children.

On the other hand, surrogacy is not allowed in Argentina, Brazil, and some US states. India banned commercial surrogacy in 2018, whereas altruistic surrogacy is legal for residents.

Countries that allow commercial surrogacy are Russia, Ukraine, Thailand (with restrictions designed to curb procreative traveling) and some US states.

Taking under consideration the specific case of Canada, being it one of the countries in which surrogate motherhood is best implemented, there are two types of surrogacy allowed: traditional surrogacy where the surrogate mother is genetically related to the child she is carrying on behalf of the intended parent or intended parents, and gestational surrogacy where the gestational carrier has no genetic connection to the child she is carrying (i.e. either the intended mother's ova are used, or those of an egg donor).

Traditional surrogacy may seem like an attractive option because without the cost of IVF, the medical process may be less expensive. However, from a legal perspective, traditional surrogacy is fraught with danger and few fertility clinics will engage in the practice. That being said, traditional surrogacy is legal and frequently happens in Canada, although most often outside of a clinic setting. Although this arrangement seems to be beneficial for all parties concerned, there are complex social, ethical, moral, and legal issues associated with it. It is these complexities that have made this practice unpopular in many parts of the world. Surrogacy in India has had its own journey from India becoming popular as a surrogacy center since 2002 to the Surrogacy (Regulation) Bill, 2016, which would restrict the option of surrogacy for many. Surrogacy is an important medical service for all those couples who would otherwise not have been able to produce a child. Surrogacy would be practiced harmoniously if delicate issues associated with surrogacy were addressed properly through appropriately framed laws which would protect the rights of surrogate mothers, intended parents, and children born through surrogacy. In light of the fact that such procedures are legal in several European and non-European countries, and considering the possibility of traveling to such countries to make use of them, as it happens in a relatively significant number of cases, there is growing awareness that the Italian regulatory framework is ineffective in preventing fertility travels. For this reason, and particularly in order to overcome some of the inconsistencies in the existing Italian legislation (e.g., between law 40 and law 194), there is a pressing need to outline an organic and comprehensive regulatory framework by taking into account the manifold interests and rights to be upheld and, ultimately, strike a fair and respectful balance for all parties involved, so as to ward off any ambiguity that might impinge upon the fundamental reproductive rights of all.

1. First-hand experiences

For many, the concrete details of the practice of surrogacy are still a mystery. Very few know, indeed, how a surrogacy agreement is carried out, how much it costs, or whether it is accessible to people interested in it. To shed some light on these practical issues, let us report here two instances which highlight the technical aspects and expose some criticalities, which will be expanded in greater detail in the next section.

The first entails the story of Corey Briskin and Nicholas Maggipinto, which featured in The Guardian in October 2022. Corey and Nicholas, who have been married since 2016, have long desired a baby. When they first agreed on the idea of proceeding via surrogacy, the staggering costs were the first obstacle they encountered. Quoting all the necessary expenses during the interview, the rough total reaches around $200.000 dollars for a one cycle of surrogacy via IVF, assuming that one cycle is enough. Having to face these enormous costs, the couple realizes however that, contrary to what they expected, their insurance could not cover them. Corey, who works for the City of New York, benefits from a quite-extensive insurance cover. Nonetheless, he could not benefit from his insurance to recur to surrogacy, whereas other categories (heterosexual or lesbian couples) could.

Needless to say, the reality of gestational surrogacy has a strong impact on women. The above mentioned article reports one example in which the gestational carrier suffered from a lack of information about the consequences of the pregnancies. Both her pregnancies as a gestational carrier were complicated, and in both instances she was not prepared in advance on the medical consequences, such as being heavily medicated for the first delivery and having a C-section for the second one. Pregnancies take a heavy toll on the bodies of women, aside from momentary weight fluctuations, pregnancies are a complex hormonal, physical and mental condition. Besides, the financial aspect of pregnancies should be kept in mind. While some of the carriers affirm that the financial aspect has no relevance in their decision, can we be sure that it is the same for everybody? Or, to put it with the words of the Guardian, seeing the increasing fee for the surrogates in the US, at what point does the financial compensation become an incentive? To address this and other concerns arising from gestational surrogacy, the next paragraph will provide an overview of the criticism directed at this practice.

2. Criticism

Surrogacy has raised many ethical debates in the past but in the recent present as well, especially in Italy.

Italy's ruling conservative majority wants to prosecute couples who go abroad to have a baby via surrogacy, according to a law that has drawn fire from critics who view it as mainly targeting gay couples. The bill is part of the socially conservative agenda of Prime Minister Giorgia Meloni.

Parenting via surrogacy is already illegal in Italy (art. 12, 6° comma, law n. 40/2004) Law, punishable with jail terms ranging from three months to two years and fines from 600,000 euros to 1 million euros ($1.08 million).

The law in question, sponsored by Meloni's Brothers of Italy (FdI) and the League, another ruling party, would make it a crime to resort to the procedure even in countries where it is legal - such as the United States or Canada.

Many of the critics raised concern religion, economic exploitation and the social impact this practice can have. Broadly speaking, the debate on surrogacy can be framed as entailing two opposing driving forces: commodification and autonomy.

The prime ethical concerns raised regard the concern about exploitation, commodification, and/or coercion when women are paid to be pregnant and deliver babies, especially in cases where there are large wealth and power differentials between intended parents and surrogates. However, the counter to it is a woman's right to enter into a contract and to make decisions regarding her own body. Womb commodification is a term sometimes used due to the economic agents engaged in the practice. The commodification arrangement raises the argument whether women are being given control over their body or being exploited for their individual body parts.

The other major argument against womb commodification is that it allows the rich to take advantage of the willingness of poor women to perform any job as long as they are able to earn a wage.

The risk of commodification, in addition, takes on an important global dimension. Poor women in the South of the world can hardly be expected to make a choice about their bodies freely from financial necessities. In other words, whereas for (wealthy) Western women surrogacy can effectively represent autonomy over their bodies.

Another ethical issue raised is in relation to the motherhood status of women involved. What could be the relationship between genetic mother, gestational mother, and social mother? Is it possible to socially or legally accept multiple motherhood? Should a child born via surrogacy have the right to know the identity of any/all of the people involved in that child's conception and delivery?

3. Policy proposals

Existing narratives on the theme of surrogacy tend to focus disproportionately on the interests of one of the parties involved in the process, thus leading to one-sided accounts of the phenomenon. On the one hand, progressive strands of policy-making focus predominantly on the right of couples or individuals to have children. Pairing this with the fact that intended parents necessarily wield a financial power in the relationship, be it for their wealthy condition and for the contractual power they hold, the relationship between them and the surrogate mother can be quite unbalanced. Among progressive theorizing, of course, there is also a focus on the right of women to decide freely on their own body, incorporating those stands of feminist thinking that seek to re-attribute to women ownership of their bodies. However, this kind of neo-liberal approach often tends to ignore systemic and social constrictions, such as financial need, lack of information on the part of the surrogate and so on.

On the other hand, conservative positions are more inclined to value the strictly biological aspects of procreation. They oppose the separation of the concept of procreation from that of motherhood/parenthood. However, denying that parents can be such without a biological connection undermines the concept of parenthood and especially deprives children born through surrogacy of their rights.

Effective public policies on the subject of surrogacy should, instead, uphold and guarantee the rights of all parties involved in the process. That entails not only granting the possibility to couples and/or individuals to access surrogate parenthood in a legal way, but also, to accurately verify the financial, psychological and medical condition of the surrogate. Finally, policy options cannot be detached from pragmatism: children born through surrogacy already exist and their rights must be recognized and protected. The policy proposals that follow thus aim at increasing the range of protection for all parties involved in surrogacy agreement, with an eye also for alternative strategies for parenthood that should not be overlooked.

In writing the following policy proposals, we acknowledge that the debate on the policy option on surrogacy is divided between those who want to abolish it and those who work toward its better regulation. Given the undeniable existence of the phenomenon, and the differences in legislation across countries, the options proposed here aim for improved regulation and awareness on the subject .

• Recognition of already existing children conceived through surrogacy. This is fundamental to assure them the access to basic rights such as the right to the surname, the right to direct inheritance of both parents, and most important the right to not be considered an orphan in case the biologically linked parent dies and the right to receive care. Thinking that depriving a child of his rights will in some way be a good law enforcement doesn’t serve the scope, since the subject that will face a loss in terms of rights is the only one who didn’t have any choice regarding the whole process choose on the way it was conceived;

• Reinforcing laws that will protect the surrogate mother. A lot of concerns were raised about the safety and the risk of exploitation of surrogate mothers. Legal representation represents for example the most important tool to safeguard those who decide to become surrogate subjects. In New York,for example, - under the Child-Parent Securities Act, the rights of the surrogate are clearly outlined. These rights would not only be communicated and adhered to by the surrogacy agency itself but will also be enforced by the surrogate’s own lawyer. In this way, the surrogate’s lawyer serves to protect the surrogate and all of their interests. From compensation to ensuring full understanding of the language and intention of their own contract to their rights as a surrogate, acquiring legal representation for a surrogate is and should be a top priority. Not only does this mean that the language involved in surrogacy contracts can at times be inaccessible and complex, but it can also mean that this lack of understanding and relative blurred lines involved in this process can leave surrogates and intended parents alike feeling overwhelmed and vulnerable. This is where the importance of representation plays its part. Surrogate lawyers, as advocates, act as the middleman between confusing and complicated legal jargon and the surrogate who needs to understand their place in the process.

• Easing adoption processes. Adoption is often a long and complicated road for those who take it. In addition, individuals or same-sex couples, in certain countries, such as Italy, are not allowed to adopt or face difficulties in the legal recognition of trans-national adoption. For those who desire it, it is possible to satisfy one’s desire for parenthood through adoption which provides in addition a family to children who are deprived of parental figures. What we propose is that the procedures of adoption in Italy are simplified and that the number of people who qualify for it is increased. At the moment, only couples who have been married for at least three years or have demonstrably been living together for such a period of time qualify for adoption. Denying that individuals or same-sex couples can adopt, however, appears as denying that parental figures other than heterosexual couples can raise a child in a good way. Additionally, it reinforces heteronormative and traditional conceptions of family, reducing the possibilities for children to find a home.

• Favorising non-commercial surrogacy. Given that, as mentioned above, concerns raised by surrogacy are often related to the economic exploitation of the surrogates, non-commercial surrogacy represents a viable option to overcome this issue. In this way, intended parents can still recur to the practice for procreation, whereas, at the same time, the financial incentive is removed. The carrier's choice thus will rely solely on non-material drivers; such as the desire of experiencing a pregnancy or to provide a child to those who cannot have one. Naturally, even without compensation, the surrogacy agreement should guarantee that all expenses related to the surrogacy be covered.
  Allowing non-commercial surrogacy could represent the adequate option for those countries, such as Italy, who have until now banned every kind of surrogacy.

Conclusion

Surrogacy is one of the most controversial topics of modern society. Despite the single personal opinion on the topic, it is nowadays used as a tool by many people to fulfill their desire to become parents, and legislation should try to minimize the risks posed by commercial surrogacy. It may not be enough for national legislatures to devise new laws, or amend existing ones, in isolation. Certainly, while improvements of national laws are obviously necessary, what is missing right now is a collective response at the international level, given the mobility that characterizes our society. Using the mere banning system could do more harm than good: surrogacy agencies could take advantage of the loopholes that exist in the law. Eggs, sperm, embryos, surrogates and intended parents could simply move to countries where commercial surrogacy is still legal. Finally, let us remind ourselves that, when one industry is banned in a country, another one can promptly and easily open for business elsewhere, taking advantage of different social categories and less advantaged layers of society.

Governing, rather than banning, a phenomenon that is obviously not going away by itself anytime soon is probably the best way to go: the ultimate goal is in fact to ensure that the dignity, integrity and self-determination of women are upheld at all times, at every stage of the surrogacy process, and the rights and well-being of children are guaranteed afterwards. The main effort, however, needs to be made at the international level. It is of utmost importance to pursue an international consensus on surrogacy, which can evolve into a joined-up legislative approach. Despite the inevitable difficulties of arriving at a global agreement, i.e., getting people from different places, cultures or backgrounds to espouse a common set of values, concerns about exploitation and acceptable ethical standards—particularly in terms of upholding the rights of the most vulnerable—represent a significant reason to work towards common ground and over time, a global approach to surrogacy arrangements.