Table of Contents
Introduction
The Arguments of Proponents and Opponents of the Surrogacy
Surrogacy and Legal and Ethical Issues
Surrogacy Compensations and Contracts
Conclusion
Introduction
Reproduction is a natural human function. People must give birth to children
and bring them up in order for the mankind to exist. Unfortunately, some families
are not able to have children. Despite great medical progress not all the problems
of infertility can be resolved and some women are still not able to have babies
of their own. In such cases they can turn to surrogacy as the way out.
“The term surrogacy generally refers to the practice of hiring a fertile
woman who agrees to become impregnated, usually through donor insemination,
and agrees ahead of time to transfer the child to the infant’s biological
father and his wife, according to terms of a contract signed before the woman
becomes pregnant.” (Mady) A woman who carries a surrogate baby is called
a surrogate mother. A surrogate can be a friend, a volunteer or compensated.
There are two types of surrogacies. They are defined as traditional and gestational
ones. Traditional surrogacy occurs when surrogate mother becomes pregnant when
her own eggs are fertilized by the sperm of the intended father. This can be
done with the help of intrauterine insemination (IUI) or in vitro fertilization
(IVF). In this case formally the child is born from his biological father and
surrogate mother. In the case of gestational surrogacy the embryo of the future
child is produced from the combination of the eggs of the intended mother and
the sperm of the intended father. The child born through the gestational surrogacy
posses a combination of genes of his intended mother and father.
Till recent time traditional surrogacy was the only possible alternative for
the infertile couples. Gestational surrogacy is implied since comparatively
recent time. It’s more complex and expensive but it managed to resolve
the problem, which existed in the case of traditional surrogacy. Now infertile
parents can have a child which is completely theirs genetically.
The Arguments of Proponents and Opponents of the Surrogacy
The problem of surrogacy provokes a lot of loud disputes in the society. It
posts a lot of moral, ethical and legal questions, which are not yet resolved.
Surrogacy opponents are concerned with the rights of the surrogate mothers.
They state that surrogates should have the right not to give child to the intended
parents if she changes her mind during the process of the pregnancy. They speak
about exploitation of the surrogate and getting profit of the unawareness of
poor surrogates about their rights.
They also state that people, who choose surrogacy are driven by their selfishness.
There are many children who will never know love of parents in the orphanages
but some couples choose unnatural way to have a baby using a surrogate. They
want to be genetically linked to their child to be sure the child is exactly
“theirs” continuation.
Advocates of surrogate stand against the governmental interference within the
process of surrogacy. They state that the government can not prohibit the infertile
couples to have genetically theirs child if there is woman who is ready to assist
them. They argue that prohibitions can not stop the surrogacy completely and
that it will still exist illegally. In this case both, intended parents and
surrogate mothers, will be put in more danger and will have no opportunities
to protect their rights.
They insist that the surrogacy is a completely free choice of the surrogate
mothers and they also get compensations for that and there is not need to restrict
this voluntary act of the free will. Advocates of the surrogacy believe that
it can be beneficial for the both parties if all conditions and details are
discussed.
Both sides, opponent and proponents of the surrogacy, are also preoccupied with
the interest of the child, who is born by the surrogate. The opponents of the
surrogacy state that children born in such a way are put in more danger to grow
up in the family with complicated relationship. Surrogacy is a very complicated
issue and it’s hard to predict the reaction of both sides – the
surrogate mother and the intended family. The first danger is that the surrogate
mother changes her mind and starts treating the baby like her own and doesn’t
want to give it to anybody. The parents may feel the same as they are genetically
connected with the baby. It’s not the only danger of the surrogacy. “Many
commentators have likened the experience of children and birth mothers in surrogacy
arrangements to children and relinquishing mothers in adoption, and point to
the potential psychological and social harm that may result. “ (Wallace,
79) The situation may turn completely vice versa and intended parents may not
love the baby they get from the surrogate mother as their own. The rejection
of an infant by the both sides can also become a serious problem in the case
when disabled infants are born.
Surrogacy and Legal and Ethical Issues
Those, who stand against surrogacy are concerned with many issues. First of
all they are concerned with the ethical side of the problem. In the most of
the cases surrogate mothers are paid for their services. Both sides sign up
a contract or an agreement, where they discuss the details of the deal. Opponents
of the surrogacy use sharp words and stay that rich parents buy babies for themselves.
They also stay that it’s immortal to pay money for having a baby as in
all civilized countries selling babies same as adults is prohibited. “It
is surely harmful to any child to be the object of a custody dispute.”
(Robertson) They also stress on the moral act of a woman, who is ready to “sell”
her baby even if the baby isn’t hers genetically.
Along with ethical issues legal issues also make a serious problem when it comes
to surrogacy. In different states there are different laws concerning surrogacy,
if any. In some states the government prohibits surrogacy contracts and gives
them no judicial value while in other states surrogacy is legalized.
Florida law allows both traditional and gestational surrogacy to married heterosexual
couples. It also allows contracts for donor of egg, Sperm and pre-embryos. Unmarried
and same sex couples are not allowed to make any surrogacy arrangements. There
are also age limitations. For example, gestational surrogacy is allowed to “couple[s
that] are legally married and are both 18 years of age or older.” (FLA
STAT) In addition, there must be a medical confirmation that “within reasonable
medical certainty”: the commissioning mother cannot physically gestate
a pregnancy to term; the gestation will cause a great risk to the physical health
of the commissioning mother; the gestation will cause a risk to the health of
the fetus.” (FLA STAT) Surrogacy legislation in Florida is based on the
adoption laws used before.
Surrogacy Compensations and Contracts
Compensation for the surrogates is a widespread policy. The payment may depend
on the time of involvement and complexity of the case. This question raises
a lot of disputes in the society. The kind of attitude accepted now stays that
the payment is made not for some final result, such as live and healthy baby,
but for the time and effort connected with pregnancy input by the surrogate
mother.
Surrogate agreements can be divided into commercial and non-commercial. In the
last case the surrogate mother takes no money for bearing a baby. Such cases
mostly occur among friends or relatives. Usually non-commercial agreements are
not made in the written form, as they actually assume no payment conditions.
When it comes to commercial agreements, the contracts are more common. “The
contract is valuable not just as a legal document (especially since in the event
of a dispute, family law would supercede contract law, meaning, basically, the
contract isn’t legally binding in most states), but as a way of getting
everything that needs to be discussed out on the table.” (Mady) The contract
usually sings up the intentions of both parties to produce a child for the intended
parents and free will of both parties in taking this decision. This contract
will be important evidence if the surrogacy results a custody battle. The sum
of compensation is also mentioned in the contract. Any additional points may
be included to the contract by the will of one of the sides. “It is estimated
that in the United States, the payment for a surrogate mother ranges between
US$10,000 and $20,000, the whole procedure can cost $45,000 to $60,000.”
(Powers) Gestational surrogacy usually costs more as the medical services demand
additional expenditures. There is such a phenomenon as “fertility tourism”.
This name is applied to the situation when infertile couple goes abroad for
surrogacy. The payment is cheaper in this case and intended parents can feel
more protected from the intrusion of the surrogate mother to their life after
the baby is given to the intended family.
Conclusion
Surrogacy is a complicated and controversial issue. There are a lot of opponents
of such a method of childbearing. They state that bargaining over the child
is immoral. They also state that surrogacy can become a hard trauma for a surrogate,
a child and even an intended couple. Advocates of the surrogacy insist on the
right of the married couple to have a genetically linked baby if there are appropriate
conditions to accomplish that. Both opinions have strong arguments and deserve
to be heard. Surrogacy legislation differs in different parts of the USA. The
government and social organizations should pay special attention to the problem
of the surrogacy as it touches complicated legal and moral issues. The improvements
in the legislation and addition attention of social organizations can make the
surrogacy more legitimate and less painful for all the parties.
Sources
1. Wallace, M. “Surrogacy”, Discussion Paper, Attorney General’s
Department, ACT Government, Canberra, 1993.
2. Rebecca Powers, Sheila Gruber Belloli, “The Baby Business: Surrogacy’s Big Daddy,” The Detroit News, September 19, 1989.
3. Robertson JA. Surrogate mothers: not so novel after all. Hastings Cent Rep. 1983 Oct;13(5):28–34
4. Krimmel HT. The case against surrogate parenting. Hastings Cent Rep. 1983 Oct;13(5):35–39.
5. FLA. STAT. §§ 742.11-15 (2002)
6. Brophy KM. A surrogate mother contract to bear a child. J Fam Law. 1982;20(2):263–291.
7. Mady TM. Surrogate mothers: the legal issues. Am J Law Med. 1981 7(3)
