Surrogacy

A surrogacy arrangement or surrogacy agreement is the carrying of a pregnancy for intended parents.
There are two main types of surrogacy, gestational surrogacy and traditional surrogacy. In gestational
surrogacy, the pregnancy results from the transfer of an embryo created by in vitro fertilization (IVF), in a
manner so the resulting child is genetically unrelated to the surrogate. Gestational surrogates are also
referred to as gestational carriers. In traditional surrogacy, the surrogate is impregnated naturally or
artificially, but the resulting child is genetically related to the surrogate. In the United States, gestational
surrogacy is more common than traditional surrogacy and is considered less legally complex.
Intended parents may seek a surrogacy arrangement when medical issues make pregnancy either
impossible or it is considered far too risky for the mother's health. Monetary compensation may or may
not be involved in these arrangements. If the surrogate receives compensation beyond reimbursement of
medical and other reasonable expenses, the arrangement is considered commercial surrogacy;
otherwise, it is referred to as altruistic. The legality and costs of surrogacy vary widely
between jurisdictions, sometimes resulting in interstate or international surrogacy arrangements.

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 a divorce, which would otherwise be inevitable.
Many developments in medicine, social customs, and legal proceedings worldwide paved the way for
modern commercial surrogacy:

1930s In the U.S., pharmaceutical companies Schering-Kahlbaum and Parke-Davis started the
mass production of estrogen.

1944 Harvard Medical School professor John Rock broke ground by becoming the first person
to fertilize human ova outside the uterus.

1953 Researchers successfully performed the first cryopreservation of sperm.

1971 The first commercial sperm bank opened in New York, which spurred the growth of this
type of business into a highly profitable venture.

1978 Louise Brown, the first test-tube baby, was born in England. She was the product of the
first successful IVF procedure.

1980 Michigan lawyer Noel Keane wrote the first surrogacy contract. He continued his work
with surrogacy through his Infertility Center, through which he created the contract leading to
the Baby M case.

1985 A woman carried the first successful gestational surrogate pregnancy.

1986 Melissa Stern, otherwise known as "Baby M" is born in the U.S. The surrogate and
biological mother, Mary Beth Whitehead, refused to cede custody of Melissa to the couple with whom
she made the surrogacy agreement. The courts of New Jersey found that Whitehead was the child's
legal mother and declared contracts for surrogate motherhood illegal and invalid. However, the court
found it in the best interest of the infant to award custody of Melissa to the child's biological father,
William Stern, and his wife Elizabeth Stern, rather than to Whitehead, the surrogate mother.

1990 In California, gestational carrier Anna Johnson refused to give up the baby to intended
parents Mark and Crispina Calvert. The couple sued her for custody (Calvert v. Johnson), and the
court upheld their parental rights. In doing so, it legally defined the true mother as the woman who
intends to create and raise a child.

1994

Latin American fertility specialists convened in Chile to discuss assisted reproduction and
its ethical and legal status.

The Chinese Ministry of Health banned gestational surrogacy due to the legal
complications of defining true parenthood and possible refusal by surrogates to relinquish a baby.
2009 The Chinese government cracked down on enforcement of the gestational-surrogacy ban,

and Chinese women began coming forth with complaints of forced abortions.
There have been cases of clashes between surrogate mothers and genetic parents. For instance, genetic
parents of the fetus may ask for an abortion when unexpected complications arise, and the surrogate
mother may oppose the abortion.

Types of surrogacy

Gestational surrogacy (GS)

A surrogate is implanted with an embryo created by IVF, using the egg and sperm of the intended parents.
The resulting child is genetically related to the intended parents, and genetically unrelated to the
surrogate.

Gestational surrogacy and egg donation (GS/ED)

A surrogate is implanted with an embryo created by IVF, using intended father's sperm and a donor egg.
The resulting child is genetically related to intended father and genetically unrelated to the surrogate.

Gestational surrogacy and donor sperm (GS/DS)

A surrogate is implanted with an embryo created by IVF, using intended mother's egg and donor sperm.
The resulting child is genetically related to intended mother and genetically unrelated to the surrogate.

Gestational surrogacy and donor embryo (GS/DE)

A donor embryo is implanted in a surrogate; such embryos may be available when others undergoing IVF
have embryos left over, which they opt to donate to others. The resulting child is genetically unrelated to
the intended parent(s) and genetically unrelated to the surrogate.

Traditional surrogacy (TS)

This involves naturally or artificially inseminating a surrogate with intended father's sperm via IUI, IVF or
home insemination. With this method, the resulting child is genetically related to intended father and
genetically related to the surrogate.

Traditional surrogacy and donor sperm (TS/DS)

A surrogate is artificially inseminated with donor sperm via IUI, IVF or home insemination. The resulting
child is genetically unrelated to the intended parent(s) and genetically related to the surrogate.

Legal issues
As of 2013, locations where a woman could legally be paid to carry another's child through IVF and
embryo transfer included India, Georgia, Russia, Thailand, Ukraine and a few U.S. states.
The legal aspects of surrogacy in any particular jurisdiction tend to hinge on a few central questions:

Are surrogacy agreements enforceable, void or prohibited? Does it make a difference whether the
surrogate mother is paid (commercial) or simply reimbursed for expenses (altruistic)?

What, if any, difference does it make whether the surrogacy is traditional or gestational?

Is there an alternative to post-birth adoption for the recognition of the intended parents as the
legal parents, either before or after the birth?

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 the
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.
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 a 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 the couple 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 be
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 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 provide for only 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 in only those 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
Ethical issues that have been raised with regards to surrogacy include:

To what extent should society be concerned 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?

To what extent is it right for society to permit women to make contracts about the use of their
bodies?

To what extent is it a woman's human right to make contracts regarding the use of her
body?

Is contracting for surrogacy more like contracting for employment/labor, or more like
contracting for prostitution, or more like contracting for slavery?

Which, if any, of these kinds of contracts should be enforceable?

Should the state be able to force a woman to carry out "specific performance" of her
contract if that requires her to give birth to an embryo she would like to abort, or to abort an
embryo she would like to carry to term?
What does motherhood mean?

What is the relationship between genetic motherhood, gestational motherhood, and

social motherhood?

Is it possible to socially or legally conceive of multiple modes of motherhood and/or the

recognition of multiple mothers?
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?

Religious issues
Different religions take different approaches to surrogacy, often related to their stances on assisted
reproductive technology in general.

Catholicism
Paragraph 2376 of the Catechism of the Catholic Church states that: "Techniques that entail the
dissociation of husband and wife, by the intrusion of a person other than the couple (donation of sperm or
ovum, surrogate uterus), are gravely immoral.

Judaism
Jewish law states that the parents of the child are the man who gives sperm and the woman who gives.
More recently, Jewish religious establishments have accepted surrogacy only if it is full gestational
surrogacy with both intended parents' gametes included and fertilization done via IVF.

Psychological concerns

Surrogate
A study by the Family and Child Psychology Research Centre at City University London 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.
Surrogates are generally encouraged by the agency they go through to become emotionally detached
from the fetus prior to giving birth.
Instead of the popular expectation that surrogates feel traumatized after relinquishment, an overwhelming
majority describe feeling empowered by their surrogacy experience.
Although surrogate mothers generally report being satisfied with their experience as surrogates there are
cases in which they are not. Unmet expectations are associated with dissatisfaction. Some women did not
feel a certain level of closeness with the couple and others did not feel respected by the couple.
Some women experience emotional distress when participating as a surrogate mother. This could be due
to a lack of therapy and emotional support through the surrogate process.
Some women have psychological reactions when being surrogate mothers. These include depression
when surrendering the child, grief, and even refusal to release the child.
A 2011 study from the Centre for Family Research at the University of Cambridge found that surrogacy
does not have a negative impact on the surrogate's own children.

Child
A recent study (involving 32 surrogacy, 32 egg donation, and 54 natural conception families) examined
the impact of surrogacy on motherchild relationships and children's psychological adjustment at age
seven. Researchers found no differences in negativity, maternal positivity, or child adjustment.

Fertility tourism
Fertility tourism for surrogacy is driven by legal regulations in the home country, or lower price abroad.

India
India is a main destination for surrogacy. Indian surrogates have been increasingly popular with intended
parents 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.
Surrogacy in India is of low cost and the laws are flexible. 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. But now in 2014 surrogacy ban
on Gays and singles parent.
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.

Russian Federation
Liberal legislation makes Russia attractive for "reproductive tourists" looking for techniques not available
in their countries. Intended parents come there for oocyte donation, because of advanced age or marital
status (single women and single men) and when surrogacy is considered. Gestational surrogacy, even
commercial is absolutely legal in Russia, being available for practically all adults willing to be parents.
Foreigners have the same rights as for assisted reproduction as Russian citizens. Within three days after
the birth the commissioning parents obtain a Russian birth certificate with both their names on it. Genetic
relation to the child (in case of donation) does not matter. On August 4, 2010, a Moscow court ruled that a
single man who applied for gestational surrogacy (using donor eggs) could be registered as the only
parent of his son, becoming the first man in Russia to defend his right to become a father through a court
procedure. The surrogate mother's name was not listed on the birth certificate; the father was listed as the
only parent.

United States
The United States is sought as a location for surrogate mothers by couples seeking a green card in the
U.S., since the resulting child can get birthright citizenship in the United States, and can thereby apply for
green cards for the parents when the child turns 21 years of age. However, there are many other reasons
people come to the US for surrogacy procedures, including to enjoy a better quality of medical technology
and care, as well as the high level of legal protections afforded through some US state courts to

surrogacy contracts as compared to other countries. Increasingly, same sex couples who face restrictions
using IVF and surrogacy procedures in their home countries travel to US states where it is legal.