The Surrogacy or Gestation by Substitution, as it is called, is a technique of Assisted Human Reproduction (AHR) in which a woman, the mother, gestational donates capacity. That fits within the AHR with collaboration from third parties, which include:
- Gametes donation: ovules and sperm
- Embryo Donation
- Cytoplasm / Mitochondria Donation
- Uterus Donation:
- Donation of the organ, in which case it would be a transplant.
- Donation of gestational capacity, which causes a surrogate gestation process
The Surrogate Pregnancy constitutes, as a source of medical, bioethical and social research of the first magnitude. In spite of not being a new procedure, it now becomes relevant due to the universalization of its practice. It has ceased to be a reproductive procedure that was hidden, sometimes even from the family itself. The terminology that the European Society of the Human Reproduction and Embryology (ESHRE) proposed in its Course of action, as well as the recommendations of the Committee for the Supervision of Assisted Reproduction Technology (CSART). The Medically Assisted Reproduction (MAR) is also defined as the ‘Reproduction produced through the induction of ovulation, controlled ovarian stimulation, induced ovulation, ART (Assisted Reproduction Technology) procedures and intrauterine, intra-cervical or intra-vaginal fertilization with husband/partner or semen donor.
In turn, AHR technology is defined as all conducts or procedures that comprise the in vitro operation of both humanoid oocytes and sperm or seeds for the function of establishing a pregnancy. This comprises, but is not restricted to, in vitro fertilization and embryo relocation, gamete intra-fallopian change, zygote intra-tubal change, embryonic tubal relocation, embryo and gamete cryopreservation, oocyte and embryo contribution, and gestational substitution. TRA may not contain aided fertilization (synthetic insemination), whichever with the partner’s sperm or a sperm benefactor (Margalit, 2011).
For its part, the Society, for Assisted Reproductive Technology considers that such technology includes in-vitro fertilization/embryo transfer (FIV-TE), gamete intra-fallopian transfer (GIFT), zygote intra-fallopian transfer (ZIFT) and the transfer of frozen embryos. These techniques are also applied to oocyte donation and gestational surrogacy. The surrogacy is the assisted reproduction technique that arises the greater variety of opinions because of the ethical, legal, medical and psychological consequences that may result from its application. Therefore, it is important to assess the possible effects and risks both for the surrogate pregnant woman, known as pregnant mother or surrogate mother, as well as for the parents of intention and the future baby (Brinsden, 2000).
The subrogated pregnancy or replacement is a reproductive process by which a woman feat baby of another woman, man or couple and delivers it to them after birth. It is a procedure that breaks with the traditional concept of a mother, considered as the woman who gives birth. For this reason, many wonder if submitting to this technique can lead to some psychological effect or risk, both for the pregnant woman, for having to deliver the baby that has gestated, and for future parents, for having to resort to this technique (Joseph, Rafanello, Morris & Fleming, 2018).
Although the pregnant woman is clear that the baby that is pregnant for nine months is not her child (and she declares it in the surrogate pregnancy contract), there is the well – known maternal-fetal bond, since the baby feeds and grows thanks to the contributions of the woman who does it. For this reason, it is inevitable that there is a small feeling of grief or helplessness when delivering the baby. The emotional cost is great, and not all women are trained to be pregnant in the process of surrogacy of the uterus. This is the reason why the surrogacy agencies carry out numerous medical and psychological tests on the pregnant women before starting the surrogate pregnancy. In this way, they ensure that the surrogate pregnant woman is prepared to act as such, voluntarily and without any moral pressure, thus reducing the possible negative consequences on an emotional level. We must not forget that there is a positive effect of helping other people to fulfill their biggest dream (having a child) increases the self-esteem of the pregnant women and makes them feel that they are complete people (Allan, 2014).
Parents of Intention
It is not easy for future parents to initiate this type of procedure. Some find it difficult to assume the need for this treatment; others may think that their child will not want them because they were gestated by a ‘strange’ woman, etc. In this sense, it is also important that expectant fathers by surrogate pregnancy understand and accept what this implies. The rejection of the link between pregnancy and delivery or in some cases the genetic burden, if it is necessary to resort to the donation of ovules and semen, can be a legal pursuit. On the other hand, the tremendous pain that many couples suffer from the inability to conceive and the enormous desire to have a child leads them to devote great efforts to the pregnant woman (Saxena, Mishra & Malik, 2012).
Although many may believe that this dedication is pure selfishness, the truth is that the vast majority of intentional families care about the health of the pregnant woman and tries not to cause trauma for her by giving them the baby. The ultimate goal and desire of these families are to have their baby at home but, although some may not believe it, they also think about the surrogate pregnant woman, her interests, and her health. In this sense, it is recommended that there is a relationship between the pregnant woman and the future parents, as this will cause both parties to turn more emotionally and help reduce the negative effects (Kirkman & Kirkman, 2002).
There are many criticisms that surrogate motherhood receives from society in general. One of the main reasons is that many consider that this views motherhood as a business and, the body of the woman, as a commodity (Hanna, 2010). However, more and more people now understand that the concept of surrogacy is an opportunity for many couples to have a family. The surrogate mother receives financial compensation but this does not have to be synonymous with exploitation or a business. Is not financial compensation given to participants in clinical trials of drugs, medical treatments or donation of gametes (ova and semen)? Why then does surrogate pregnancy not receive the same social acceptance? (Poote & van den Akker, 2008).
When the surrogate pregnancy can pose a social problem to the pregnant woman, as it happens in some countries where pregnant women hide their intervention in the process and where it is the husband or guardian who decides if they can act as such, we can think of exploitation, malpractice and lack of freedom (Murphy, 2013). The thing that violates the basic rights of women in most social areas does not respect the interests and decisions of the pregnant woman when applying the surrogate pregnancy. This way of doing ‘surrogate gestation’ is and should be rejected by the society (Murphy, 2013).
However, when the process is done under legal guarantees, and the pregnant woman decides for herself, freely and consciously, to act as such, not only does she not hide it but she feels proud of being able to help others (Murphy, 2013). This is the defendable surrogacy pregnancy that is applied in countries where the majority of the general society accepts and understands the uterine subrogation as another means of procreation (Stearns, 2012).
Symptoms and Physical Consequences of Pregnancy
In pregnancy, the changes occur both physically and emotionally. The hormonal flow of women is very different from usual, and this has a series of very different side effects among women. There are those who the variation of hormones feels good, makes them feel happier and relaxed. On the contrary, other pregnant women do not tolerate the change of hormones so well. In any case, there are some general changes such as weight gain, swelling, heaviness, appetite and urination variations, back pain or increased sensitivity that occur in virtually all pregnant women. In a surrogate pregnancy process, Healey (2015) has suggested that it is an indispensable requirement that the pregnant woman has gone through a previous pregnancy, because only in that way can she know firsthand the possible physical and emotional changes that this implies (Stearns, 2012).
She must be willing to go through it for other people and not for herself because the gestation that she is going to carry out is not of her son. It must also be clear that, although in most cases the normal state after childbirth is recovered, it does not always occur. There are consequences such as the appearance of stretch marks; the weight gained, the possible scar of childbirth, etc. that do not always disappear. Also, it is essential that the pregnant woman is aware of the risks that may arise from pregnancy and childbirth and so sign it in the surrogate pregnancy contract (Saxena, P., Mishra, A., & Malik, S. (2012).
From the legal point of view, one of the main concerns of the surrogacy is the filiation of the child born by this method. The uterine subrogation gives the possibility that a woman renounces the legal qualification of the mother, which is granted for having gestated and given birth to a baby. This opens a new legal approach because motherhood must be assigned (Banerjee, 2012). Since surrogate pregnancy is not allowed in a certain country (where the mother is the woman who gives birth, except for cases of adoption), the approach is relative to international law, as cases of surrogacy of the uterus are carried out abroad (Banerjee, 2012).
The organizations of the country allow the determination of filiation in favor of the parents of intent when it has been ruled by a judicial ruling before the birth of the child. We must emphasize that it is an instruction and not a law, so there is the possibility of cancellation of it. In this case, among other legal consequences, the registration of the baby would be questioned. In case of not having a valid resolution by a judge (not in all countries is a trial), the paternity of the father of intention can be established by genetic test and subsequent adoption by his partner (Overall, 2014).
British law establishes that any woman who gives birth to a child is considered the legal mother, regardless of the way in which the child was conceived (Overall, 2014). The biological mother’s husband, if he has one, is considered the legal father (Overall, 2014). However, if the surrogate mother is not married, the genetic father may be listed on the birth certificate (Horsey, 2016). It is noticed that no law requires the surrogate mother to be a single woman, but the rights her husband acquires automatically make it more advisable to choose a surrogate mother who is not married. The British legal process to determine that the prospective parents are the only parents and guardians of the child is a Parental Resolution (Horsey, 2016).
This judicial resolution confers full and permanent paternal rights on the child and results in the birth certificate of the child being issued with the future parents as solely responsible for it. It also legally eliminates the rights and responsibilities of the surrogate mother. Parental resolutions are similar to an adoption resolution but specific to surrogacy in the United Kingdom. Like an adoption resolution, a parental resolution transfers the parental rights of the biological mother to the prospective parents (Horsey, 2016). The resolution confers all rights and responsibilities on the child to the new parents (Horsey, 2016).
Legal complications may arise in situations such as the following:
- The parents of intention do not contribute the genetic load of the son
- The pregnant woman does not renounce her maternity rights
- There is suspicion of fraud or malpractice of the process
- The pregnant woman or parents of intention do not respect what was agreed in the surrogate pregnancy contract
In case of legal problems that prevent recognition of the baby as a child of the parents of intention, they could not return to the home country with the child. The Technique of Assisted Human Reproduction indicates that the surrogate pregnancy contract is null and void and that the legal mother of the minor is the woman who gives birth. Therefore, one of the main negative consequences for the future parents is the awarding of the filiation to the surrogate pregnant woman. This means that, since the contract is not binding, there is no legal security for this process if it is carried out in a particular country. At the medical level, the surrogate pregnancy is equal to a pregnancy achieved through a fertilization process, with the only difference that the created embryo is transferred to the uterus of a woman who will not be finally recognized as the mother (Healey, 2015).
In this sense, the risks for the pregnant woman are the same as those associated with a natural pregnancy as well as those derived from the transfer process. Regarding the parents of intention, the risks or possible negative effects refer to the obtaining of the gametes: ovules and spermatozoa. The process of collecting the ovules is somewhat more complex and, therefore, subject to greater risks. However, serious consequences are implausible (Bergman, Rubio, Green & Padrón, 2010).
Current Situation of Surrogacy
Since the development experienced by Assisted Reproduction Techniques has generalized them, as a medical practice, the concerns for respecting the ethical and bioethical norms of the whole reproductive process as well as respect for the human rights of those involved have been constant. The rules of good practice, the intentional filiation that emanates from them and the need to protect the best interests of the child have led different Ethical Committees and Associations dedicated to reproductive technology to issue guidelines and recommendations for their implementation (Ross-Sheriff, 2012).
These helping manuals will be necessary, for technology must go beyond simply therapeutic approaches, because in the techniques where there is the donation of reproductive capacities, and therefore donation of Sexual and Reproductive Rights. The concepts of filiation must be specified, as well as the assumption of the necessary measures to ensure fully informed consent, the correct defense of the principle of autonomy and effective advice to make a well-founded decision. Without detriment, of course, of rigorous medical advice and a psychological evaluation carried out by an expert the process of surrogacy might not work as intended. It will not be wrong to say that the concept of surrogacy still has a paradox for the people to practice it. The difficulty of the procedure and the social and legal aspects further create more difficulty for parents that have an intention practice surrogacy (Ross-Sheriff, F. 2012).
Being a surrogate mother is a wonderful and extraordinary experience. The Teams of surrogacy agencies is there to help the surrogate mothers throughout the process, every day. In fact, agencies offer every surrogate mother full support throughout the process, either through community events, celebrations, and family gatherings. As part of the Surrogate Mothers program. The public has the opportunity to participate in an extraordinary experience, to help people affected by infertility to create their family and give them the child they could not have without their help as a surrogate mother (Poote & van den Akker, 2008).
In addition, the surrogate mothers are part of a community of extraordinary women. These women, as well as our support staff, consisting of a psychologist and a licensed clinical social worker who will help you throughout the process (Crawshaw, Blyth & van den Akker, 2012). There are also many social effects like the right of the pregnant mother not to suffer the psychological consequences of a possible abortion cannot be guaranteed, the body problems in the mother after nine months of gestation and having to get rid of the child, and the child becomes, thus, an object because it is commodified with it, it has a price (Joseph, R., Rafanello, A., Morris, C., & Fleming, K. 2018).
In any case, there are a number of general changes such as weight gain, swelling, heaviness, variations in appetite and urination, back pain or increased sensitivity that occur in virtually all pregnant women. Surrogate Mothers must meet the following requirements to be considered in the surrogacy program; to have given at least one baby to him without complications, being in the age between 21 and 40, have adequate proportions of height and weight, and have excellent health (Hammarberg, Stafford-Bell & Everingham, 2015).
The Intended parents feel pleased and worried both at the same time when they hire a surrogate mother because it makes them feel that the baby will be born from someone else’s stomach. The Intended Parents needs to work broad-minded with the Gestational Carrier. The suggestions and recommendations from other parents or agencies who are working on this topic can help in better understanding the process. The views of surrogate women can be beneficial for the indented parents (Kleinpeter, 2002).
The parents of the baby undergo; uncertainty, anguish, stress, and moral conflicts. In short, it is a complicated situation that generates many doubts, pressures, and anxieties that can trigger a serious emotional crisis for parents that may transmit to the baby during its growth. In countries where this type of practice is common, it is recommended to have legal and psychological advice in order to carry out this process in the best possible way. The maternity subrogated involves a series of emotional challenges for everyone involved. So before opting for this option, it is advisable to evaluate other alternatives such as adoption. Motherhood and fatherhood are sacred roles, so it is well worth taking into account all the provisions to enjoy children and cultivate healthy relationships (Bergman, K., Rubio, R., Green, R., & Padrón, E. 2010).
The surrogate mother, her family, and intended parents may experience some social and other problems during the process. These issues can be handled by proper care of the mother and not take care of what people say. A positive and healthy environment will help the surrogate mother to produce a healthy child.
Crawshaw, M., Blyth, E., & van den Akker, O. (2012). The changing profile of surrogacy in the UK – Implications for national and international policy and practice. Journal Of Social Welfare And Family Law, 34(3), 267-277. http://dx.doi.org/10.1080/09649069.2012.750478
Hammarberg, K., Stafford-Bell, M., & Everingham, S. (2015). Intended parents’ motivations and information and support needs when seeking extraterritorial compensated surrogacy. Reproductive Biomedicine Online, 31(5), 689-696. http://dx.doi.org/10.1016/j.rbmo.2015.08.008
Jadva, V., Imrie, S., & Golombok, S. (2014). Surrogate mothers 10 years on: a longitudinal study of psychological well-being and relationships with the parents and child. Human Reproduction, 30(2), 373-379. http://dx.doi.org/10.1093/humrep/deu339
Kleinpeter, C. (2002). Surrogacy: the parents’ story. Psychological Reports, 91(5), 201. http://dx.doi.org/10.2466/pr0.91.5.201-219
Poote, A., & van den Akker, O. (2008). British women’s attitudes to surrogacy. Human Reproduction, 24(1), 139-145. http://dx.doi.org/10.1093/humrep/den338
Readings, J., Blake, L., Casey, P., Jadva, V., & Golombok, S. (2011). Secrecy, disclosure and everything in-between: decisions of parents of children conceived by donor insemination, egg donation and surrogacy. Reproductive Biomedicine Online, 22(5), 485-495. http://dx.doi.org/10.1016/j.rbmo.2011.01.014
Stearns, C. (2012). The Social Relations of Surrogacy. Symbolic Interaction, 35(1), 101-103. http://dx.doi.org/10.1002/symb.8
Allan, S. (2014). Commercial Surrogacy in a Global Environment: Ethical and Legal Issues Regarding Surrogate and Child and Regulatory Suggestions. SSRN Electronic Journal. http://dx.doi.org/10.2139/ssrn.2431142
Banerjee, S. (2012). Gestational surrogacy contracts: altruistic or commercial? a contract theoretic approach*. The Manchester School, 81(3), 438-460. http://dx.doi.org/10.1111/j.1467-9957.2011.02287.x
Bergman, K., Rubio, R., Green, R., & Padrón, E. (2010). Gay Men Who Become Fathers via Surrogacy: The Transition to Parenthood. Journal Of GLBT Family Studies, 6(2), 111-141. http://dx.doi.org/10.1080/15504281003704942
Brinsden, P. (2000). Treatment by in vitro fertilization with surrogacy: the experience of one British center Surrogacy should pay. BMJ, 320(7239), 924-929. http://dx.doi.org/10.1136/bmj.320.7239.924
Hanna, J. (2010). Revisiting child-based objections to commercial surrogacy. Bioethics, 24(7), 341-347. http://dx.doi.org/10.1111/j.1467-8519.2010.01829.x
Healey, J. (2015). Surrogacy Issues. Thirroul: The Spinney Press.
Horsey, K. (2016). FRAYING AT THE EDGES: UK SURROGACY LAW IN 2015. Medical Law Review, fww013. http://dx.doi.org/10.1093/medlaw/fww013
Joseph, R., Rafanello, A., Morris, C., & Fleming, K. (2018). Surrogacy: Pathway to Parenthood. Neonatal Network, 37(1), 19-23. http://dx.doi.org/10.1891/0730-08188.8.131.52
Kirkman, M., & Kirkman, A. (2002). Sister-to-sister gestational ‘surrogacy’ 13 years on: A narrative of parenthood. Journal Of Reproductive And Infant Psychology, 20(3), 135-147. http://dx.doi.org/10.1080/026468302760270791
Margalit, Y. (2011). Redefining Parenthood – From Genetic Essentialism to Intentional Parenthood. SSRN Electronic Journal. http://dx.doi.org/10.2139/ssrn.1819023
Murphy, D. (2013). The Desire for Parenthood. Journal Of Family Issues, 34(8), 1104-1124. http://dx.doi.org/10.1177/0192513×13484272
Overall, C. (2014). Reproductive ‘Surrogacy’ and Parental Licensing. Bioethics, 29(5), 353-361. http://dx.doi.org/10.1111/bioe.12107
Ross-Sheriff, F. (2012). Transnational Cross-Racial Surrogacy. Affilia, 27(2), 125-128. http://dx.doi.org/10.1177/0886109912445269
Saxena, P., Mishra, A., & Malik, S. (2012). Surrogacy: Ethical and Legal Issues. Indian Journal Of Community Medicine, 37(4), 211. http://dx.doi.org/10.4103/0970-0218.103466
Stearns, C. (2012). The Social Relations of Surrogacy. Symbolic Interaction, 35(1), 101-103. http://dx.doi.org/10.1002/symb.8