Surrogate Motherhood

Vera Esteves-Cardoso no. 1536April 2013

Health Law and Bioethics

Content

1. What is Surrogacy?

2. What is Surrogacy’s social importance?

3. Surrogacy around the world

4. Arguments Pro Surrogacy

5. Arguments Against Surrogacy

6. Portugal’s Standpoint

7. Personal Considerations

What is Surrogacy?

There are two types of surrogacy:

1. Traditional surrogacy (partial surrogacy)

The surrogate mother’s ovum is artificially inseminated with the commissioning father’s sperm.

Baby M case – New Jersey, 1988: Conflicting rights

2. Gestational surrogacy (full surrogacy)

The embryo created in vitro, usually uses both the commissioning mother’s ovum and the commissioning father’s sperm. The zygote is then grown into an eight cell (or more) organism and placed into the gestational mother’s uterus.

What is Surrogacy’s Social Importance?

Surrogacy around the World

Countries Against Surrogacy

Countries where Surrogacy is not directly

regulated

Countries where surrogacy is legal

Commercial Surrogacy Altruistic Surrogacy

Arguments Pro Surrogacy

In countries where surrogacy arrangements are legal, there are usually two demands that must be respected:

1. It must be considered a medical necessity and not a whim, as the bioethical arguments in favor of surrogacy are all based on its subsidiary nature.

2. Genetic contribution of the commissioning mother, or a donor, as opposed to what occurred in traditional surrogacy.

Arguments Pro Surrogacy1. Payment = exploitation? No. a) Argument not applicable for countries only allowing altruistic surrogacy;b) Example of other activities that take advantage of female attributes . Eg: ballerinas;c) Prostitution;d) Poorly paid jobs.

2. Gestational mothers incentives

a) Pure compassion and consequential gain of psychic benefits from helping infertile couples;

b) Easy pregnancy;c) Women who have witnessed the emotional crisis someone close to them has gone

through from not being able to have their own genetic child. d) http://www.youtube.com/watch?v=0FwUe1tlOVE

Arguments Pro Surrogacy 3. Screening process/consent

a) Thorough screening is done to possible future gestational mothers before entering surrogacy arrangements;

b) Consent is informed and therefore valid;

c) Validity of consent isn’t questioned in other “unexperienced” situations (e.g. gender re-assignment surgery and sterilization)

4. What is being paid for is the service and not the baby

a) In gestational surrogacy there is no genetic link between the child and the gestational mother- the embryo belongs to the commissioning parents;

b) Human dignity is not violated as the subject of the surrogacy arrangement (the contract) is not the child but the service.

Arguments Pro Surrogacy

5. World Conference on Population, in 1994, in Cairo (“The Cairo Conference”) “The aim should be to assist couples and individuals to achieve their reproductive

goals and to be given the full opportunity to exercise the right to have children by choice.”

- This seems to indirectly support gestational surrogacy…

6. Universal Declaration on Bioethics and Human Rights (2006)

“The interests and welfare of the individual should have priority over the sole interest of science or society.”

- Commissioning parents being deprived of available reproductive technologies is thus discriminatory.

Arguments Against Surrogacy

1. Surrogacy as exploitative

a) The use of a woman’s uterus for financial profit is inconsistent with human dignity;

b) Target of commercial surrogacy arrangements are women in less advantageous financial positions;

c) Kantian imperative that no human being shall be used as a means to an end;

d) Psychological damages of having to relinquish all rights to the child;

e) Universal Declaration of Human Rights and the protection of human dignity.

Arguments Against Surrogacy

2. Surrogacy as the splitting of Motherhood

a) Surrogacy splits motherhood between a genetic and gestational mother;

b) Identity crisis for the child;

c) Emotional damage to the gestational mother;

d) The “Mater sempre certa est” principle is put at stake.

3. Surrogacy vs Adoption

a) Consent for adoption is done after giving birth and in surrogacy arrangements it is given prior to giving birth.

b) Whereas surrogacy starts with the wishes of adults, adoption starts with the rights of the child.

Portugal’s Standpoint

• Medically assisted procreation in Portugal is regulated by Law no. 32/2006, of the 26th of July, amended by Law no. 59/2007, of the 4th of September, and until this date, prohibits, via its article 8 any surrogacy contracts – be it free of charge or against payment.

• Furthermore, article 39 of the same Law states that whoever enters into a surrogacy arrangement with a payment entailed shall be subject to a prison penalty (2 years maximum) or to the payment of a fine lasting up to 240 days.

•The gestational mother is considered, for all legal purposes, the legal mother of the child. (Article 8, paragraph 3)

Portugal’s Standpoint

“The fact that this method of reproduction is criminally punishable, only triggers the illegal

practice of surrogacy and all the perversity it may entail, due to having contractual deals entered into

within black market situations, allowing those women or even commissioning parents to suffer

serious risks of human exploitation.”- Filomena Gonçalves, Vice President of the

Portuguese Fertility Association

Projects of Law

• On the 21st of January ,2011 ,the Project of Law no. 122/XII;

•On the 6th of January, 2012, another Project of Law was put forth, nº 131/XII;

• And then on the 26th of July, 2012 , yet another Project of Law no. 138/XIII, was put forth.

•In all three projects of law , altruistic surrogacy is allowed in exceptional situations in which the mother either:

• Has no uterus;

• Has suffered lesions to this organ;

• Or in other clinical situations that have to be appreciated and analyzed by the National Council of Medically Assisted Procreation and after the Medical Association has been heard.

Projects of Law

•In all three projects of Law it was also stated that:

• Within those exceptional situations, if a surrogacy arrangement takes place, the mother of the child, for all social and legal purposes, will be the commissioning mother and not the gestational mother.

• In altering article 39 of the original law, it was also proposed that within the aforementioned exceptional situations, surrogacy may be publicized for without the risk of incurring in a criminal offense.

“We believe that it is imperative to give answers to those women who do not have the possibility of having their own pregnancy

either because they were born without a uterus, because they have lost their uterus as result of an oncological disease or even because they have been diagnosed with other clinical conditions that make it impossible for them to gestate a child. Like all infertile couples, the ones who face these mentioned challenges, also deserve to

have their reproductive health acknowledged and recognized. As we are faced with an end without any solution in our own country,

these couples see themselves being forced to either resign their pursuit of having a child, or to resort to other countries where

surrogacy is in fact legal. It makes absolutely no sense to maintain these couples under the shade of unlawfulness, subject to a

colossal financial effort, or even worse, at the mercy of unclear contractual agreements, made by those lacking the sense of

morality who take advantage of the state of fragility that these infertile couples are in. We prefer to use the term “benevolent loan of a uterus” instead of speaking of gestational surrogacy as, at the

end of the day, that is exactly what it is all about: a lending of a uterus out of altruistic motives and never for financial

compensation.”

Personal Considerations1. The gestational mother and the commissioning parents are fully informed

and clarified about what the whole process entails.

2. The gestational mother and the commissioning parents must be aware of the fact that the future child has a right to know the conditions in which he or she was gestated.

3. The gestational mother shall not simultaneously be an egg donor in the gestation to which the surrogacy agreement refers to.

4. The gestational mother must be healthy.

5. The altruistic motives that lead the gestational mother must be previously and thoroughly evaluated by a multidisciplinary team of health experts that is not directly involved in the medically assisted procreation process.

6. The consent given by the gestational mother may not be revoked at any moment after the embryo has been transferred into her own uterus.

7. A relationship involving any kind of economical subordination between the contracting parties is considered illegal.

8. The contractual agreement entered into by the commissioning parents and the gestational mother may impose restrictions on the gestational mother’s behaviour: i.e risky behaviour that might endanger the health of the fetus.

9. The embryo that is transferred to the gestational mother must have at least been fertilized by either the commissioning father’s sperm, or the commissioning mother’s ovum.

10. The commissioning and genetic parents are automatically considered legal parents of the child once it is born, if the process has respected all legal provisions and guaranteed no violation of the gestational mother’s human dignity.

Personal Considerations

Personal Considerations

11. The gestational mother should be able to have all medical costs covered, including health insurance, and should be able to receive a compensation for her loss of time or any other financially insignificant donations.

12. The gestational mother must have already had a child of her own.

... and in favour of carefully regulated altruistic

surrogacy, I thank you for your

attention!