Legal and Ethical Considerations in Surrogacy: What You Need to Know
Surrogacy is a practice that involves deep human wants and complicated legal and moral issues. In recent years, the practice has become very popular around the world, giving hope to people who want to have children but can't because of medical problems or issues. The Centers for Disease Control and Prevention (CDC) says that over 74,000 babies are born each year through assisted reproductive technology (ART), which includes surrogacy. A study from the International Federation of Fertility Societies (IFFS) also shows that surrogacy arrangements are steadily going up around the world. This shows that more and more people are accepting and wanting different ways to have children. Even though surrogacy is becoming more popular, it is still a complicated issue with unclear laws, moral problems, and complex social effects.
Types of surrogacies
There are mainly two types of surrogacies. Let us gain a better understanding of what these are:
1. Traditional surrogacy
Traditional surrogacy involves using the surrogate's egg to create the embryo of the child she will carry through intrauterine insemination or in vitro fertilization.
If the surrogate has family ties to the intended parents, traditional surrogacy provides a genetic link to them. For heterosexual couples in whom the woman is unable to use her eggs, as well as same-sex couples and solitary men, this is very helpful. Traditional surrogacy might be the ideal choice for parents who are unable to locate an egg donor, would instead use an anonymous donor, or wish to lower surrogacy expenses.
2. Gestational surrogacy
In gestational surrogacy, the intended parents use donated eggs or sperm, or they use their egg and sperm to make an embryo.
For intended parents and surrogates who are hesitant about the legalities and emotional aspects of traditional surrogacy, gestational surrogacy is the preferable option. The intended parents and surrogate must seek gestational surrogacy if the surrogate's state prohibits conventional surrogacy. This technique makes it possible to use remaining embryos from previous IVF operations and allows intended moms to be linked to their offspring.
Types of surrogacy arrangements
Just like how there are two types of surrogacies, there are two types of surrogacy arrangements as well:
1. Altruistic surrogacy: Here, the surrogate mother doesn’t receive any financial compensation or money other than the reimbursement for medical and related expenses.
2. Commercial surrogacy: The surrogate mother goes beyond the related medical expenses. This surrogacy is common in countries where commercial surrogacy is legally allowed.
Why surrogacy?
Let us look at some of the possible cases which lead individuals to choose surrogacy as an option to have a child:
If a woman is unable to become pregnant or conceive due to hysterectomy.
If her bad health conditions make pregnancy dangerous.
Homosexual couples who wish to become parents.
Her male partner wants to use the frozen embryos she had stored to have a child when she passes away.
A single parent.
The criteria for being a surrogate mother
A surrogate, often referred to as a gestational carrier, is a woman who conceives, carries, and gives birth to a child on behalf of another person or couple. The surrogate permits that person or couple to receive the child when born.
Age
Applicants must be between the ages of 21 and 45. Again, the exact range varies depending on the area.
Reproductive background:
Along with having less than five vaginal births and two cesarean sections, they must also have carried at least one pregnancy to term without any issues.
Lifestyle:
Surrogates must reside in a nurturing setting. Other factors to consider are drug and alcohol misuse.
Potential surrogates need to undergo a comprehensive medical examination that includes a sexually transmitted infection (STI) test in addition to a mental health assessment.
Legal considerations of surrogacy
To protect the rights and obligations of everyone involved—including the intended parents, surrogate, and the child—legal concerns involving surrogacy are vital. Many jurisdictions have quite diverse surrogacy regulations. Therefore, people need to comprehend and abide by local laws where they live fully. The following are important legal factors to think about considering surrogacy:
1. Agreements for Surrogacy
A comprehensive surrogacy agreement is a legally binding contract that specifies each party's expectations, obligations, and rights.
Typically, the agreement addresses matters like payment, health care costs, the surrogate's obligations during the pregnancy, and the intended parents' rights to the child.
2. Rights of Parents
In surrogacy, establishing parental rights is a crucial legal factor.
Legal documentation in gestational surrogacy should explicitly state the intended parents' rights to the child; these rights may need court rulings or pre-birth orders to prove paternity.
3. Traditional versus gestational surrogacy
There may be significant differences in the laws governing conventional and gestational surrogacy.
Legal issues might surface in traditional surrogacy cases if the surrogate is genetically linked to the child, necessitating further measures to prove parental rights.
4. Orders Placed Before Birth
Purposeful parents can legally establish themselves as the child's parents before birth by obtaining pre-birth orders in several countries.
These instructions facilitate the legal procedure and assist in averting any issues that can arise after birth.
5. After-birth legal actions
Legal actions taken after the birth may occasionally be required to establish parental rights, particularly in areas where pre-birth orders are illegal.
The intended parents' legal recognition may come through adoption or other legal procedures.
6. Relations and Citizenship:
Citizenship disputes can occur, especially in cases involving foreign surrogates.
More legal actions could be necessary to guarantee that the surrogate kid receives citizenship in the nation of the intended parents.
7. Adoption and Legal Directives:
Certain countries may require prospective parents to request a parental order to obtain legal parental rights.
Adopting a kid might be the legal way for parents to prove their rights if surrogacy laws are strict.
8. Birth certificate and proof of legal paternity:
Through established legal procedures, a child’s birth certificate can be changed to name the intended parents as the child’s legal parents.
This period is essential for the child’s identity, citizenship, and productivity.
9. International Money
Discussions about foreign surrogacy have more complex legal contexts.
It is essential to understand and review the legal framework of the intended parent and surrogate state is essential.
10. Closing Agreement
There should be explicit legal provisions in the surrogacy agreement that allow the intended parents and the surrogate to choose the circumstances under which the pregnancy is postponed.
11. Legal Advisors
All involved should consult an attorney with expertise in surrogacy and reproductive justice.
Apart from drawing up contracts and assuring compliance with corporate law, lawyers can provide guidance.
Ethical aspects of surrogacy
Even though many religious institutions oppose surrogacy, for some people, this is their only viable choice for becoming parents. This is the reason behind discussing a few essential and controversial ethical concerns.
Attachment with the Gestational Mother: The woman who bears the baby to term in a surrogacy situation is known as the gestational mother. The surrogate mother must physically and emotionally separate herself from the child after giving birth, making this a complex and unique procedure that may be highly stressful on both her physical and emotional well-being.
Engagement with the Gestational Mother: Given that the gestational mother is unlikely to be the child's primary caregiver, legal concerns may surface over her potential participation with the child after birth, if any.
Identity of the kid: Telling the kid about their surrogate mother raises additional ethical questions since it can impact the child's sense of who they are.
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