Womb to rent: the ethical and legal implications of surrogacy in Ireland

BACKGROUND

Surrogacy is a form of assisted human reproduction whereby a surrogate woman carries a pregnancy for a commissioning couple or individual. There are two types of surrogacy, traditional and gestational. Worldwide we have seen a rapid increase in the use of surrogacy. Despite this, there is a lack of consensus internationally on the laws governing surrogacy. In Ireland, surrogacy remains largely unregulated. Currently, there is no specific legislation for surrogacy. This review aims to discuss its current regulatory status and associated ethical issues.

AIMS

On surrogacy from an Irish legal perspective, this study is to (i) demonstrate the lack of legislation, (ii) describe the Health Bill 2022 and (iii) examine the challenges surrounding surrogacy and Irish case law. On surrogacy from an Irish ethical perspective, this study is to (iv) discuss the ethical issues surrounding autonomy, (v) discuss the ethical issues surrounding non-maleficence, (vi) discuss the ethical issues surrounding justice and (vii) evaluate ethical issues specific to commercial surrogacy: (1) child welfare and (2) commodification and exploitation of children and women's bodies.

CONCLUSION

Surrogacy has raised several ethical issues. There are issues surrounding autonomy of the surrogate and commissioning couple, child welfare, exploitation and commodification, non-maleficence and justice. There are also significant legal concerns with surrogacy. It is neither legal nor illegal in Ireland. This creates challenges for the commissioning couple particularly in terms of custody of the child.

Altruistic help or taking advantage of the situation? Social representations of surrogate motherhood

Concerning Europe, the lay public, mainly in Central regions, still lacks information about what surrogacy is and how the process works in practice. It is one of the most controversial methods of assisted reproduction precisely because it goes against traditional social norms and ideas about the conception of life. The main aim of our study was to map the social representations of lay people that are formed in internet discussions. We focused on discussion forums over a time span of the last 10 years, from 2013 to 2022. We were also interested in whether perceived risks or benefits formed the core of social representations. Through a reflexive thematic analysis, we identified two distinct constructions of social representations of surrogacy, finding that value settings in terms of liberalism and conservatism appear to have the greatest influence on the anchoring and objectification of surrogacy.

Similar pregnancy outcomes from fresh and frozen donor oocytes transferred to gestational carriers: a SART database analysis isolating the effects of oocyte vitrification

PURPOSE

This work aimed to study clinical and neonatal outcomes of embryos derived from frozen compared to fresh donor oocytes in gestational carrier cycles.

METHODS

This is a retrospective cohort study using the Society for Assisted Reproductive Technology Clinic Outcome Reporting System database between 2014 and 2015, comprising of 1284 fresh transfer cycles to gestational carrier recipients of embryos resulting from fresh (n = 1119) and vitrified/thawed (n = 165) donor oocytes. Models were adjusted for gestational carrier age, preimplantation genetic testing (PGT-A), number of embryos transferred, multiple gestation, and fetal heart reduction. As our models were part of a larger analysis, intended parent BMI, smoking status, and parity were also adjusted for, but did not influence outcomes in this analysis.

RESULTS

There was no significant difference in probability of live birth rates when comparing embryos derived from fresh and frozen donor oocytes in gestational carrier cycles. There were also no significant differences in biochemical pregnancy losses or clinical miscarriage. There were no significant differences noted in low birthweight or high birthweight infants derived from fresh versus frozen donor oocyte after transfer into a gestational carrier.

CONCLUSIONS

The analysis of fresh and frozen donor oocytes in gestational carrier cycles provides the opportunity to assess for a possible effect of vitrification on the oocyte by controlling for differences in the uterine environment. We observed no significant differences in live birth, pregnancy loss, low birthweight or high birthweight infants when comparing fresh and frozen donor oocytes in gestational carrier cycles.

The role of non-genetic parents in a surrogate-born child's identity: an argument for removal of the genetic link requirement

For the court to grant a parental order recognising intended parents as legal parents of a surrogate-born child, the gametes of at least one of the intended parents must have been used to create the embryo, under section 54(1)(b) and section 54A(1)(b) Human Fertilisation and Embryology Act 2008. In the Law Commission and Scottish Law Commission's consultation paper, there was a provisional proposal to remove the genetic link requirement in cases of medical necessity. However, this proposal was not included in the Law Commissions' Final Report, instead recommending the retention of the requirement for a genetic link in almost all circumstances. This article contends that the Law Commissions' recommendation should be reconsidered in light of the child's right to identity. By reviewing how identity has been used by the courts when determining whether to grant a parental order, as well as a developing interpretation of Article 8 of the United Nations Convention on the Rights of the Child and European Convention on Human Rights, it can be asserted that the identity of surrogate-born children necessitates recognition of the relationship between the child and intended parent(s), irrespective of a genetic link. On this basis, it is argued that there should be the possibility for intended parents to establish legal parenthood following surrogacy without the requirement for a genetic link.

Surrogacy and the Fiction of Medical Necessity

A number of countries and states prohibit surrogacy except in cases of "medical necessity" or for those with specific medical conditions. Healthcare providers in some countries have similar policies restricting the provision of clinical assistance in surrogacy. This paper argues that surrogacy is never medically necessary in any ordinary understanding of this term. The author aims to show first that surrogacy per se is a socio-legal intervention and not a medical one and, second, that the intervention in question does not treat, prevent, or mitigate any actual or potential harm to health. Legal regulations and healthcare-provider policies of this kind therefore codify a fiction-one which both obscures the socio-legal motivations for surrogacy and inhibits critical examination of those motivations while mobilizing normative connotations of appeals to medical need. The persisting distinction, in law and in moral discourse, between "social" and "medical" surrogacy, is unjustified.

A qualitative analysis of gestational surrogates' healthcare experiences during the COVID-19 pandemic

OBJECTIVE

No empirical data are available on the healthcare experiences of surrogates during the COVID-19 pandemic. This study aimed to examine the impact of pandemic-control measures on surrogates' fertility, pregnancy and birthing experiences.

METHODS

Sampling frame included eligible surrogates who were actively involved in a surrogacy process at an academic IVF centre during the pandemic (03/2020 to 02/2022). Data were collected between 29/04/2022 and 31/07/2022 using an anonymous 85-item online survey that included twelve open-ended questions. Free-text comments were analysed by thematic analysis.

FINDINGS

The response rate was 50.7% (338/667). Of the 320 completed surveys used for analysis, 609 comments were collected from 206 respondents. Twelve main themes and thirty-six sub-themes grouped under 'vaccination', 'fertility treatment', 'pregnancy care', and 'surrogacy birth' were identified. Three in five surrogates found the control measures highly or moderately affected their surrogacy experiences. Themes involving loneliness and isolation frequently emerged when essential surrogacy support was restricted by the visitor protocols implemented at healthcare facilities.

DISCUSSION

Our findings show that restricting or limiting intended parents' in-person involvement increased surrogates' feelings of isolation and made the overall surrogacy experience less rewarding and fulfilling. Furthermore, the childbirth experiences of surrogates were mostly negative, suggesting that hospitals were ill-equipped to manage all births, including surrogacy births, during the pandemic.

IMPLICATIONS FOR PRACTICE

Our findings highlight the needs to rethink how surrogacy care and maternity services could be strengthened to better serve the needs of surrogates during times of public health crises, such as COVID-19, while still allowing for risk mitigation and maximising patient safety.

Reproduction as Work: Addressing a Gap in Current Economic Rights Discourses

In 2022, the global commercial surrogacy industry was valued at approximately US$14 billion. This paper explores the issue of surrogacy to reveal how international human rights standards and labor laws treat reproduction as work, building on previous scholarship analyzing similar framing at the grassroots level in Mexico. I argue that the failure to recognize surrogacy as labor is rooted in three lacunae: (1) contemporary policies and practices around surrogacy globally pay little attention to the well-being and rights fulfillment of surrogates themselves, particularly the economic rights of surrogates; (2) the stigma of surrogacy as sexualized care work results in neglect of the labor rights of surrogates in mainstream economic rights discourses; and (3) relevant international rights law has not yet addressed the economic rights of surrogates, nor has it effectively articulated the interdependent relationship between economic rights and reproductive rights. Lastly, I discuss where reproductive rights and economic rights overlap in existing human rights conventions and standards and what possibilities these offer for articulating the interdependence of reproductive and economic rights and for advancing the labor rights of surrogates.

Assisted Regulation: Argentine Courts Address Regulatory Gaps on Surrogacy

Surrogacy operates in a regulatory void in Argentina. Despite attempts to legislate this practice, Argentine law contains no univocal rules governing the legality and enforceability of surrogacy agreements. Unsurprisingly, this has not stopped intended parents from pursuing surrogacy; quite the contrary, it has steered them into the courts, thrusting the issue into the realm of judicial policy. Through a comprehensive review and qualitative study of 32 court rulings, I address the judicial scenario regarding surrogacy in Argentina. I describe the profile of litigants who are bringing altruistic gestational surrogacy claims, the legal arguments used by courts, and the types of orders issued. I explain how the judiciary, through judicial review of the current legal framework and the application of international human rights law, including the principle of the best interests of the child, is playing a key role in ensuring access to this form of third-party assisted reproductive technology. Finally, I make the case for regulation by critically assessing these rulings to highlight the intricacies, challenges, and complexities that come with the judicial regulation of surrogacy.

Australian intended parents' decision-making and characteristics and outcomes of surrogacy arrangements completed in Australia and overseas

Markets for international surrogacy often arise in jurisdictions with limited regulations regarding assisted reproductive technologies. In some countries, like Australia, regulated domestic surrogacy services are often sidestepped for international providers. This study describes how Australian intended parents decide where to pursue surrogacy and compares the characteristics and outcomes of arrangements completed within and outside of Australia. The findings show that, although intended parents preferred undergoing surrogacy in Australia, perceiving the process as too long and complicated was a common reason to pursue an international arrangement. Multiple embryo transfer, anonymous gamete donation, and a lack of counselling were common in international surrogacy arrangements. When compared to surrogacy arrangements completed in Australia, where single embryo transfer is mandatory for surrogacy cycles, the rates of multiple birth, preterm birth and neonatal intensive care in international surrogacy were higher. These findings raise concerns about the health and welfare of international surrogacy participants, particularly the surrogates and children. In lieu of any international instrument regulating surrogacy, improving access to surrogacy at a domestic level would reduce the number of people engaging with international arrangements and in turn, reduce the potential for harm.

Moral Dilemmas of Surrogate Motherhood

In the sphere of new modalities of creating offspring, one of the most controversial issues is related to surrogacy because it opens the space to unforeseeable ethical, legal, sociological and psychological world of dilemmas. Surrogacy is the process whereby a woman carries and gives birth to a baby for a couple who cannot conceive naturally and it has become increasingly popular worldwide. This reproductive method relativized the biological fact of birth and denied the central moment in identifying motherhood, expressed in the ancient Roman proverb that the mother of a child is the woman who gave birth to it. Surrogate motherhood changes the notion of motherhood as it separates the natural functions of a woman as a mother, or it separates the genetic from the gestational motherhood. In such a situation, the biological riddle is: Who is the real mother of the child: the one who gives the genetic material or the one who gives birth to it? The answer to this question opens many moral and ethical dilemmas in complex relationships: the surrogate mother, the couple-clients and the child. As the successful medical practice of giving birth to another undeniably exists in different countries of the world, the further fate of this method of reproduction will significantly depend on ethical justifications.

Single fathers' experiences of using egg donation and surrogacy to start a family

STUDY QUESTION

What are the experiences of single men using egg donation and surrogacy as a route to parenthood?

SUMMARY ANSWER

The fathers mainly had a positive relationship with the surrogate and simultaneously exercised agency, and experienced challenges, during the process of surrogacy.

WHAT IS KNOWN ALREADY

Little is known about single men's experiences of egg donation and surrogacy arrangements. Studies have focused on single men's decision-making processes about the use of surrogacy and family functioning once these families are formed. Questions remain about how fathers experience and navigate the process of surrogacy as a single man.

STUDY DESIGN, SIZE, DURATION

The study is an international, in-depth qualitative study of fathers who chose to begin a family and parent alone. Data were collected between 2018 and 2021 as part of a larger study of solo fathers with different routes to parenthood. The present study reports on 21 fathers who used surrogacy and egg donation to begin their family. The average age of the fathers was 44 years, the fathers had young children aged 6 years or younger, and lived in countries across Australia, Europe, and North America.

PARTICIPANTS/MATERIALS, SETTING, METHODS

Purposive sampling was used to recruit participants. In-depth semi-structured interviews were conducted. Interview topics included fathers' experiences of the process of using egg donation and surrogacy, and navigating the relationship with the surrogate. The audio-recorded interviews lasted around 2 hours and were subsequently transcribed verbatim.

MAIN RESULTS AND THE ROLE OF CHANCE

Data were analysed using reflexive thematic analysis and qualitative content analysis. Most of the fathers chose an identifiable egg donor. Regarding the relationship with the surrogate, many fathers had remained in contact with her, but to differing degrees, and they generally reported positive relationships. Thematic analysis led to the identification of three themes relating to the fathers' experiences of choosing surrogacy as a single man: the ability to make choices; challenges and constraints; and special relationship.

LIMITATIONS, REASONS FOR CAUTION

Due to the variation between different countries regarding laws on surrogacy, contextual factors may have impacted on the experiences of single fathers, and the sample size was small. However, the research provides new insights into an area with little academic literature.

WIDER IMPLICATIONS OF THE FINDINGS

Given the growing trend of single men having children through surrogacy, the findings suggest that this new path to parenthood can be both rewarding and challenging. Single men may benefit from tailored support and counselling to help them navigate the surrogacy journey.

STUDY FUNDING/COMPETING INTEREST(S)

This study was funded by the Wellcome Trust (grant number 208013/Z/17/Z). The authors have no conflicts of interest to declare.

TRIAL REGISTRATION NUMBER

n/a.

Ethics Committee of the American Society for Reproductive Medicine. Electronic address: asrm@asrm.org. Misconduct in third-party assisted reproductive technology by participants and nonmedical professionals or entities: an Ethics Committee opinion

Physicians involved in third-party assisted reproductive technology arrangements who discover material misconduct or other undisclosed information by a party to the arrangement (such as a gamete or embryo donor, gestational carrier, or intended parent) or by a nonmedical professional participant or entity (such as a recruiting program, gamete or embryo bank, or lawyer) should encourage that party or professional participant to disclose such misconduct or information. In some instances, it is ethically permissible for the physician to either disclose material information to the affected party or to decline to provide or continue to provide care. In all cases involving the legal status or rights of the parties, physicians should recommend that patients seek independent legal professional advice. This document replaces the document "Misconduct in third-party assisted reproduction," last published in 2018. The use of a physician's own gametes for the purpose of reproduction without the informed consent of the recipient(s) is unethical and illegal, as well as never permissible.

Impact of the war in Ukraine and the COVID-19 pandemic on transnational surrogacy - a qualitative study of Danish infertile couples' experiences of being in 'exile'

RESEARCH QUESTION

How did Danish permanently infertile couples experience surrogacy when going abroad and what impact did the war in Ukraine and the COVID-19 pandemic have on this?

DESIGN

A qualitative study was performed between May and September 2022. The in-depth semi-structured interviews were conducted with 14 permanently infertile couples across Denmark who were in different stages of using surrogacy. The interviews were transcribed and analysed using systematic text condensation.

RESULTS

All except one couple went abroad, mainly to Ukraine, to have an enforceable transparent contract, professionals to advise them and the possibility of using the eggs of the intended mother. They did not feel that this was a 'choice' but rather the only option they had to have the longed-for child. According to current Danish legislation, the intended mother could not obtain legal motherhood over the child, not even through stepchild adoption, and this increased the feeling of not being a 'worthy mother'. This study expanded on the term 'reproductive exile' by identifying four different forms of exile: the exiled Danish couple, the gestational carrier in exile, exile at home and, finally, the reproductive body in exile.

CONCLUSIONS

Understanding infertile couples' experiences when crossing borders is important for several reasons. It may, among others, assist politicians and authorities in developing a sound Danish legal policy on surrogacy to address the current issues of legal parenthood and avoid missing reproductive opportunities for permanently infertile couples.

The status of surrogacy in China

China's birth rates hit a record low in 2021. The high demand for having children has spawned a massive market for surrogacy, which, however, is a dilemma in China involving a series of moral and legal issues under the current circumstances. First, special populations, including infertile patients, families who have lost their sole child, and homosexuals, wanted to have children, giving rise to surrogacy. Then, the development of and innovation in assisted reproductive technology allowed surrogacy to mature. A high return offsets a high risk, and consequently, an underground surrogacy market has emerged, causing various social issues for the Chinese Government, such as civil disputes, gender disproportion, crime, and the spread of disease. At the same time, surrogacy violates moral ethics, traditional Chinese culture, and the rights and interests of vulnerable groups.

New Zealand's Approaches to Regulating the Commodification of the Female Body : A Comparative Analysis Reveals Ethical Inconsistencies

In 2003 and 2004, Aotearoa New Zealand enacted two key laws that regulate two very different ways in which the female body may be commodified. The Prostitution Reform Act 2003 (PRA) decriminalized prostitution, removing legal barriers to the buying and selling of commercial sexual services. The Human Assisted Reproductive Technology Act 2004 (HART Act), on the other hand, put a prohibition on commercial surrogacy agreements. This paper undertakes a comparative analysis of the ethical arguments underlying New Zealand's legislative solutions to prostitution and commercial surrogacy. While the regulation of prostitution is approached with a Marxist feminist lens with the aim to ensure the health and safety of sex workers, commercial surrogacy is prohibited outright for concerns of negative impacts on present and future persons. I ground the principles of each Act in their ethical foundations and compare these two against one another. I conclude that New Zealand's legislative approach to regulating the commodification of the female body is ethically inconsistent.

Experiences and Meanings of Surrogate Pregnancy Among Gay Israeli Men Who Become Parents Through Overseas Surrogacy

This study explores the experiences of single gay men and gay men who raise children in couples who have created their families through surrogacy procedures in different countries and cultural contexts. The analysis of 39 in-depth, semi-structured interviews with these fathers suggests that the effects of medicalized reproduction on these men are twofold. Medicalized reproduction leads these men, on one hand, to feel alienated from surrogate pregnancy and the fetus, and on the other hand, to contribute to the construction of a new form of intimacy between the surrogates and the newborns. This highlights the paradoxical character of overseas surrogacy, which resonates with other forms of reproductive procedures. The importance of these findings is examined by means of a qualitative paradigm, through which we stress the complex impacts of medicalization on gestation, childbirth, and transition to parenthood among ART (i.e.: Assisted Reproduction Technologies) participants, in particular on gay men.

Surrogacy: beyond the commercial/altruistic distinction

In this article, I critique the commonly accepted distinction between commercial and altruistic surrogacy arrangements. The moral legitimacy of surrogacy, I claim, does not hinge on whether it is paid ('commercial') or unpaid ('altruistic'); rather, it is best determined by appraisal of virtue-abiding conditions constitutive of the surrogacy arrangement. I begin my article by problematising the prevailing commercial/altruistic distinction; next, I demonstrate that an assessment of the virtue-abiding or non-virtue-abiding features of a surrogacy is crucial to navigating questions about the moral legitimacy of surrogacy; in the final part, I reject other moral heuristics that might be proposed as alternatives to the commercial/altruistic dichotomy, and reiterate that a virtue-ethical framework is the most suitable way forward.

Commercial Surrogacy: An Overview

OBJECTIVE

 Surrogacy is the process in which a woman carries and delivers a baby to other person or couple, known as intended parents. When carriers are paid for surrogacy, this is known as commercial surrogacy. The objective of the present work is to review the legal, ethical, social, and cultural aspects of commercial surrogacy, as well as the current panorama worldwide.

METHODS

 This is a review of the literature published in the 21st century on commercial surrogacy.

RESULTS

 A total of 248 articles were included as the core of the present review. The demand for surrogate treatments by women without uterus or with important uterine disorders, single men and same-sex male couples is constantly increasing worldwide. This reproductive treatment has important ethical dilemmas. In addition, legislation defers widely worldwide and is in constant change. Therefore, patients look more and more for treatments abroad, which can lead to important legal problems between countries with different laws. Commercial surrogacy is practiced in several countries, in most of which there is no specific legislation. Some countries have taken restrictive measures against this technique because of reports of exploitation of carriers.

CONCLUSION

 Commercial surrogacy is a common practice, despite important ethical and legal dilemmas. As a consequence of diverse national legislations, patients frequently resort to international commercial surrogacy programs. As of today, there is no standard international legal context, and this practice remains largely unregulated.

Persons and women, not womb-givers: Reflections on gestational surrogacy and uterus transplantation

In a recent article in this journal, Alex Mullock, Elizabeth Chloe Romanis and Dunja Begović provide an analysis of gestational surrogacy and uterus transplantation (UTx) from the perspective of those who may decide to act as gestational surrogates and womb donors, referred to as 'womb-givers'. In this article, I advance two sets of claims aimed at critically engaging with some aspects of their analysis. Firstly, I argue that the expression 'womb-givers' obscures the biologically, socially and politically salient issue that those who engage in these practices are primarily persons and women. My contention is that this is of substance in discussions of the burdens and benefits of gestational surrogacy and UTx, which need to consider the specific position that women occupy in society, and the hierarchies that mediate their lives, experiences and preferences. Second, I argue that, if one were to take seriously the experiences and preferences of the women who may engage in these practices, and their bodily autonomy, then gestational surrogacy and UTx should be regarded as biologically and sociopolitically incommensurable. Mullock et al. overlook important aspects of gestational surrogacy, such as the embodied nature of pregnancy and childbirth, the sociopolitical significance of these experiences, and the often-oppressive social norms that shape them. Whilst biology is not destiny, I suggest that it is socially and politically 'sticky' when it comes to this significance and norms, especially within the sphere of reproduction. Towards the end of the article, I query the authors' conceptualisation of bodily autonomy and of the instruments that enable its respect and promotion.

The impact of the COVID-19 pandemic on gestational carriers

Reproductive medicine has been significantly impacted by the coronavirus (COVID-19) pandemic, and this includes the gestational carrier (GC) process. The objectives of this commentary are to evaluate the impact of COVID-19 on the GC process, as well to communicate Shady Grove Fertility’s considerations of and response to COVID-19 on the GC process to the larger assisted reproductive technology (ART) community. We also gathered conclusions drawn from available data on the impact of COVID-19 infection on maternal and neonatal morbidity and mortality as well as on counseling patients on vaccination. We compiled proposals to mitigate risk and to maximize safe evaluation and treatment for GCs during the ongoing pandemic. Over 2 years after the onset of the pandemic, the multiple resurgences of cases in the USA have necessitated nimble strategies to provide ongoing and safe reproductive care and have posed unique challenges to the GC process. With the prospect of the virus continuing to spread globally well into the future, as healthcare professionals of the ART community, we will need to ensure effective collaboration and communication as we provide care during the ongoing pandemic.

Legal determination of surrogate child parenthood in China

Commercial surrogacy is neither prohibited nor approved in China. As the underground surrogacy market keeps expanding fast, the disputes over parenthood of surrogate child occur more and more frequently. Since there are no specific rules for surrogacy, Chinese courts have to make legal determination by applying current laws. This article firstly analyses the contradictions of existing laws and regulations on natural parenthood when apply them in the cases of surrogacy. In China, since the natural parenthood is built on reproductive connections between parents and child, this article provides a typology of surrogacy in terms of the reproductive role each party has played. By combining it with the case study, the judicial views on different issues are presented. This article further discusses the inadequacies of current legal determination of parenthood, ethical controversies in surrogacy and recommends some suggestions on regulating the surrogacy and protecting the rights and interests of women and children.

The armed conflict in Ukraine and the risks of inter-country surrogacy: the unsolved dilemma

Commercial surrogacy in Ukraine has been legal since 2002, and although no official figures are released, estimates point to several thousand births occurring yearly. The country has long been regarded as one of the surrogacy capitals of the world, due to relatively affordable costs and effective targeted legislation making the surrogacy contracts enforceable. Would-be parents come from countries where surrogacy is banned or heavily restricted to start a family despite their infertility, a practice known as inter-country surrogacy. When a child is born through surrogacy, the surrogate mother forfeits her rights over the child, thus allowing the so-called "intended" or "commissioning" parents to be recognized as such on the Ukrainian birth certificate. Inter-country surrogacy has long been a highly controversial practice from an ethical and legal perspective, but the brutally destructive armed conflict erupted in the country over three months ago has laid bare all the pitfalls and deep flaws of such a system. Children born through surrogacy cannot be handed over to their intended parents, and surrogates risk legal issues and see their rights jeopardized by their choices even in a war setting, for instance if they decide to seek refuge abroad. The horrors of war thus risk victimizing the most vulnerable to an irreparable degree. An international effort is now more urgent than ever to seek a tenable balance between the desires of couples to achieve parenthood and the rights and freedom of often vulnerable women who risk exploitation and abuse and their children.

Assisted gestative technologies

A large body of literature considers the ethico-legal and regulatory issues surrounding assisted conception. Surrogacy, however, within this body of literature is an odd-fit. It involves a unique demand of another person-a form of reproductive labour-that many other aspects of assisted conception, such as gamete donation do not involve. Surrogacy is a form of assisted gestation. The potential alternatives for individuals who want a genetically related child but who do not have the capacity to gestate are ever increasing: with the advent of uterus transplantation (UTx), and the anticipated development of artificial placentas.In this paper, I highlight the pertinent conceptual differences between technologies assisting conception and those assisting gestation to demonstrate that distinct issues arise when assisted gestative technologies (AGTs) are used. I argue that there is utility in considering AGTs as a genus of technologies. These technologies perform the same function from the perspective of putative parents and might exist on a spectrum of alternatives when they become more available. Moreover, since many of the same or very similar ethical, social and legal issues are raised by surrogacy, UTx and ectogestation, analysis of these issues will be better contextualised by considering these technologies together. Many of the matters currently being highlighted for reform in the context of surrogacy will inevitably impact on how other forms of assisted gestation are governed. The conversation should be broadened; we should consider how far other emerging technologies might be accommodated in revised regulatory schemes.

Global justice in the context of transnational surrogacy: an African bioethical perspective

The ongoing debate on how best to regulate international commercial surrogacy defies consensus, as the most cogent normative and jurisprudential grounds for and against non-altruistic surrogacy remain controversial. This paper contributes to the debate by focusing on social justice issues arising from transnational, moneymaking surrogacy, with a focus on the Global South. It argues that existing theoretical perspectives on balancing interests, rights, privileges, and resources in the context of cross-border surrogacy-such as cosmopolitanism, communitarianism, liberal feminism, radical feminism, and neorealism-are not sufficient to treat the question of justice underpinning transnational surrogacy in the Global South. An Afro-communal theory of social justice is proposed as an alternative model for addressing the shortcomings in existing global justice theories. Building on Thaddeus Metz's construction of Afro-communal social theory and a bioethic of communion, this article reveals the fundamental nature of injustices in the Global South surrogacy foray. This approach provides prima facie grounds for making commercial surrogacy more just in the evolving global order.

Ethics Committee of the American Society for Reproductive Medicine. Electronic address: asrm@asrm.org. Cross-border reproductive care: an Ethics Committee opinion

Cross-border reproductive care is a growing worldwide phenomenon, raising questions about why assisted reproductive technology patients travel for care, what harms and benefits may result, and what duties health care providers may have in advising and treating the patients who travel for reproductive services. Cross-border care may benefit or harm assisted reproductive technology stakeholders, including patients, offspring, providers, gamete donors, gestational carriers, and local populations in destination countries. This document replaces the previous document of the same name, last published in 2016.

Uterus rental: Regulating surrogacy in China

The development of surrogacy technology has brought hope to families with reproductive disorders. The current surrogacy regulations show that China has always been strictly against any form of surrogacy, but illegal surrogacy is still widespread. The departmental rule on surrogacy has a legal loophole; it does not clearly stipulate the legal consequences for involved parties who breach the regulation. China has not yet established a mature supervision and implementation hierarchy. The monitoring system for surrogacy is restricted to administrative special rectification; the prevention mechanism and the deterrence effect are not in place. Therefore, this article investigates illegal surrogacy in China, re-examines the current regulatory framework of surrogacy in China from the perspectives of legislation and supervision and suggests some changes needed to deal with the legal challenges posed by surrogacy.

The Long Road to Parenthood: Assisted Reproduction, Surrogacy, and Adoption Among US Surgeons

OBJECTIVE

We sought to characterize demographics, costs, and workplace support for surgeons using assisted reproductive technology (ART), adoption, and surrogacy to build their families.

SUMMARY BACKGROUND DATA

As the surgical workforce diversifies, the needs of surgeons building a family are changing. ART, adoption, and surrogacy may be used with greater frequency among female surgeons who delay childbearing and surgeons in same-sex relationships. Little is known about costs and workplace support for these endeavors.

METHODS

An electronic survey was distributed to surgeons through surgical societies and social media. Rates of ART use were compared between partners of male surgeons and female surgeons and multivariate analysis used to assess risk factors. Surgeons using ART, adoption, or surrogacy were asked to describe costs and time off work to pursue these options.

RESULTS

Eight hundred and fifty-nine surgeons participated. Compared to male surgeons, female surgeons were more likely to report delaying children due to surgical training (64.9% vs. 43.5%, P < 0.001), have fewer children (1.9 vs. 2.4, p < 0.001), and use ART (25.2% vs. 17.4%, P = 0.035). Compared to non-surgeon partners of male surgeons, female surgeons were older at first pregnancy (33 vs 31 years, P < 0.001) with age > 35 years associated with greater odds of ART use (odds ratio 3.90; 95% confidence interval 2.74-5.55, P < 0.001). One-third of surgeons using ART spent >$40,000; most took minimal time off work for treatments. Forty-five percent of same-sex couples used adoption or surrogacy. 60% of surgeons using adoption or surrogacy spent >$40,000 and most took minimal paid parental leave.

CONCLUSIONS

ART, adoption, or surrogacy is costly and lacks strong workplace support in surgery, disproportionately impacting women and same-sex couples. Equitable and inclusive environments supporting all routes to parenthood ensure recruitment and retention of a diverse workforce. Surgical leaders must enact policies and practices to normalize childbearing as part of an early surgical career, including financial support and equitable parental leave for a growing group of surgeons pursuing ART, surrogacy, or adoption to become parents.

Cross-Border Surrogacy Before the European Court of Human Rights: Analysis of Valdís Fjölnisdóttir And Others v Iceland

The recent case of Valdís Fjölnisdóttir and Others v Iceland adds to the emerging ECtHR jurisprudence on cross-border surrogacy. It reinforces principles established in previous cases and, in doing so, clarifies the scope of the child's rights under Article 8 ECHR, and hence clarifies the scope of the obligations placed on Member States in cases of cross-border surrogacy. At the same time, consideration of Valdís Fjölnisdóttir reveals significant omissions in the approach adopted by the ECtHR as regards consideration of the rights of the child. In this way, aspects of Valdís Fjölnisdóttir confuse, rather than clarify, the scope of the child's Article 8 ECHR rights in cases of cross-border surrogacy. This article examines the Valdís Fjölnisdóttir judgment with a view to identifying emerging principles, as well as contradictions, in the developing body of jurisprudence relating to cross-border surrogacy.

And You, Girls": Online Discussions of Stigma Coping Strategies for Russian Surrogate Mothers

(1) Background: Gestational surrogacy is the most common type of surrogacy today. Although technologically well-developed and legal in many countries, it challenges and even contradicts the basic traditional concepts of family, motherhood, and gender roles. In the present study, we examined the types of stigma coping strategies surrogate mothers discussed in an online support group in post-Soviet Russia. (2) Method: We conducted a qualitative thematic analysis of 15,602 posts on a Russian-language online support group for surrogate mothers. (3) Findings: group members discussed four types of coping strategies: stigma internalization, stigma avoidance, group identification, and stigma challenging. Nevertheless, these strategies varied across the surrogate motherhood stages. Group members advised each other on specific strategies to use to cope with the state of discreditable (invisible) stigma (i.e., during the first few months of their pregnancies), with different strategies for when the pregnancies became visible and they risked becoming discredited people. Furthermore, group members disclosed that they used these strategies even when they returned to their previous family and work routines. Theoretically, our findings challenge Goffman’s classic theoretical dichotomy and coping research concerning discreditable (invisible) and discredited (visible) stigma. (4) Conclusion: Our findings indicate that surrogate mothers anticipate experiencing stigma and therefore plan for it by discussing potential coping strategies in the online group. Moreover, any intervention designed to cater to the needs of surrogate mothers must, therefore, take into consideration the social needs of their entire family.

Experiences of gestational surrogacy for gay men in Canada

This paper reports on findings from a qualitative study that examined how Canada's socio-political context influenced gestational surrogacy for same-sex male couples. Semi-structured interviews were conducted with gay fathers and gestational surrogates to investigate supports and barriers of pursuing surrogacy. Questions explored publicly available information, policies and practices of fertility clinics and hospitals, post-birth resources and cultural attitudes regarding same-sex parenthood. Findings suggest that in Canada, a global leader in LGBT rights and inclusive same-sex parenting legislation, participants encountered inadequate same-sex inclusive resources and insufficient provider competencies. The aim of this study was to inform individual and institutional recommendations to counteract biases in fertility care and post-birth services. Following interview analysis, five key strategies were identified: (1) more accessible information on paths to same-sex parenthood; (2) more inclusive fertility clinic and hospital practices; (3) recognition of same-sex fatherhood in formal documentation; (4) post-birth resources such as formula feeding, play groups and first aid courses intended for same-sex parent families; and (5) shifts in cultural attitudes of same-sex parenthood and, specifically, gay fatherhood. Approaches that subvert heteronormative discourses embedded in fertility and reproduction are required to legitimise and support same-sex parent families.

Surrogacy and uterus transplantation using live donors: Examining the options from the perspective of 'womb-givers'

For females without a functioning womb, the only way to become a biological parent is via assisted gestation-either surrogacy or uterus transplantation (UTx). This paper examines the comparative impact of these options on two types of putative 'womb-givers': people who provide gestational surrogacy and those who donate their uterus for live donation. The surrogate 'leases' their womb for the gestational period, while the UTx donor donates their womb permanently via hysterectomy. Both enterprises involve a significant degree of self-sacrifice and medical risk in order to enable another person(s) to become a parent by either providing gestational labour or enabling the other person to undertake gestation themselves. In this paper, we explore the burdens and the benefits from the perspective of the womb-giver in order to inform ethical debate about assisted gestation. This is a perspective that is often neglected in the bioethical discourse. With both surrogacy and UTx, when success follows the womb-giver's sacrifice, the key benefit is delivered to the intending parent(s), but as this article examines, the womb-giver may also enjoy some unique (relational) benefits as a result of their sacrifice. Ultimately, the choice of how a womb-giver lends assistance in gestation will impact on their bodily autonomy; some will prefer to carry a pregnancy and others to donate their uterus. We argue that the perspective of the womb-giver is crucial and thus far has not been afforded sufficient consideration in ethical discussion.

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As gestational surrogacy was forbidden in France in July 2015, the French supreme court decided to depart from previous case-law on the matter after the European Court of Human Rights (ECHR) ruled against France in four separate cases. Now, (as in the April 2017 communication1), the French Cour de Cassation has ruled that in the case of gestational surrogacy carried out abroad, the birth certificate of a child born by way of such method may be added to the French civil register along with the father&#8217;s name and without the mother&#8217;s name as she did not deliver birth.The article provides an analysis of this change in case-law. First part will examine the evolution of gestational surrogacy-related case-law and the measures taken by the French legislator on the matter. Second part will focus on the Cour de cassation&#8217;s turnaround in case-law that followed the ECHR ruling against France on the issue of the approval by domestic law of the legal relationship established between a French biological father and a child born abroad as a result of surrogacy treatment.

Challenges Posed by Transnational Commercial Surrogacy: The Jurisprudence of the European Court of Human Rights

There is little consensus between European States regarding the legal treatment of surrogacy in general and of transnational commercial surrogacy in particular. Against this background, the jurisprudence of the European Court of Human Rights (ECtHR) in this matter is of particular significance since it provides some common ground for the legal treatment of transnational commercial surrogacy in Europe. For this reason, the present paper will outline the development of the jurisprudence of the ECtHR on transnational commercial surrogacy, giving particular attention to the Mennesson and Labassee decisions, the Paradiso/Campanelli case, and the 2019 Advisory Opinion. On this basis, it will conclude by underlining the importance of the best interests of the child principle in the jurisprudence of the ECtHR on transnational commercial surrogacy.

PROTECTION OF THE RIGHTS OF CHILDREN BORN BY SURROGATE MOTHERS DURING THE COVID-19 PANDEMIC

OBJECTIVE

The aim: Analyze the practice of resolving the problems of protecting the rights of children born to surrogate mothers in the context of the COVID-19 pandemic.

PATIENTS AND METHODS

Materials and methods: In carrying out the study, an interdisciplinary approach was applied to the analysis of the problem of protecting the rights of children born to surrogate mothers in the context of the COVID-19 pandemic. This approach includes dialectical, comparative-legal, statistical, and systemic methods. The research used scientific developments in the field of problems of protecting the rights of children born to surrogate mothers, international acts, legislation, statistical data. It has been established that although the understanding of surrogacy is the same for all states, there is a rather different approach to the possibility of its application. The issue of providing a child born to a surrogate mother with data on his genetic origin (in the absence of a genetic link with legal parents) should be resolved on the basis of this approach: maintaining a balance of interests between parents and the child, taking into account the principle of the best interests of the child.

CONCLUSION

Conclusions: It was concluded that the inadmissibility of closing borders and restricting the entry of foreigners to reunite with children born of surrogate mothers. It is proposed to create a register of persons those wishing to apply the surrogacy procedure, as well as the register of children born from surrogate mothers in Ukraine.

Child health outcomes following fertility treatment and patient characteristics: discrepancies, limitations and prudence

We argue that increased risk for a variety of diseases in ART children has been consistently reaffirmed by different methods and in diverse populations, providing a methodological critique of recent sibling studies, which hold great potential for studying the risks of ART. A recent within-family analysis using a national population register holds a distinct size advantage over previous studies, and suggested that apparent risks to offspring may be attributable to birth order. However, limitations of the design may have resulted in an erroneous conclusion. We discuss the advantages of a frequently neglected sibling study design, which compares siblings born of surrogate motherhood. While uncertainty remains, the evidence points to elevated risk for ART offspring. It may therefore be prudent to call for an extension of preventive and precautionary decisions to the entire population, and to change informed consent to incorporate the long-term health consequences of fertility treatments.

Gestation as mothering

Some commentators maintain that gestational surrogates are not 'mothers' in a way capable of grounding a claim to motherhood. These commentators find that the practices that constitute motherhood do not extend to gestational surrogates. We argue that gestational surrogates should be construed as mothers of the children they bear, even if they fully intend to surrender those children at birth to the care of others. These women stand in a certain relationship to the expected children: they live in changed moral circumstances by reason of their pregnancy, and they engage in the practices said to define motherhood in the post-birth context. By contrast, ovum donors and embryo donors are not similarly 'mothers' because they do not find themselves involved in these circumstances. Not all women involved in three-parent in vitro fertilization qualify as mothers either. Given this analysis of mothering, we note that transmen who gestate children are engaged in mothering activity even if they otherwise function as a father to those children. By itself, this defence of the maternity of gestational surrogates does not confer moral title to the children they bear; gestation would not by itself override the contractual arrangements gestational surrogates have made regarding the disposition of their children. This interpretation of gestational surrogates as mothers does, however, undercut cultural understandings of these women as mere 'vessels', devoid of entitlement to respect as persons and parents. We also consider the meaning of mothering for 'brain-dead' women kept alive to give birth and for the prospect of extracorporeal gestation.

Have Indian Surrogates Been Harmed by Commercial Surrogacy Transactions?

Draft legislation has been approved by the Union Cabinet in India seeking to limit surrogacy to altruistic arrangements with intended parents who are either Indian citizens or couples residing outside the country but of Indian origin. This follows longstanding debates as to whether commercial surrogacy should be permitted. The primary argument against such arrangements has been the potential to exploit and cause harm to surrogate women. There is considerable literature on the exploitation debate, but little has been written about whether these transactions cause harm to surrogate women. Our article addresses this gap in the literature and develops a three-step framework using Mill's harm principle through which to assess whether harm has occurred. We apply this framework to a sample of women who provided surrogacy services in India between 2006 and 2015, the period just before the government moved to ban overseas couples from accessing commercial surrogacy.

Reconstructing feminist perspectives of women's bodies using a globalized view: The changing surrogacy market in Japan

This paper aims to evoke an alternative viewpoint on surrogacy, moving beyond popular Western feminist beliefs on the practice, by introducing the history and current context of East Asian surrogacy. To elaborate a different cultural perspective on surrogacy, this paper first introduces the East Asian history of contract pregnancy systems, prior to the emergence of the American invention of 'modern' surrogacy practice. Then, it examines Japanese mass media portrayals of cross-border surrogacy in which white women have become 'convenient' entities. The results of the analysis show how Japanese culture has adopted a rhetoric about the use of white women as convenient surrogate mothers in the global commercial surrogacy market. An essential aspect of surrogacy is the premise that a woman's reproductive function should be accessible to others. Past discussions among feminists have neglected this important point. Moreover, they share the assumption that white surrogacy clients are exploiters, who take advantage of women of colour as surrogate mothers. The current situation in Asia flips this perspective-with white women regarded as easier targets for exploitation by wealthy people of colour. For Asian clients, Westerners can be easily regarded as 'others' whom they can use for their reproductive needs. In today's globalized era, the surrogacy industry is no longer for affluent Westerners only. Considering this change, it is crucial to discuss surrogacy issues by reconstructing feminist perspectives with a globalized view, to help protect women's bodies, regardless of nationality, ethnicity, skin colour, or religion.

Does body mass index impact assisted reproductive technology treatment outcomes in gestational carriers

BACKGROUND

The purpose of this study was to assess whether increased body mass index (BMI) negatively affects assisted reproductive technology (ART) outcomes among gestational carriers.

METHODS

A retrospective matched case-control cohort, including all gestational carrier (GC) cycles performed at CReATe Fertility Centre (Toronto, ON, Canada) between 2003 and 2016.

SETTING

A Canadian fertility clinic, with a large surrogacy program.

PATIENTS

All gestational carriers that had undergone a cycle completed to a transfer at our clinic, and had BMI and outcome data available, were matched by BMI to infertile patients treated at our clinic during the same years provided they had undergone a cycle completed to a transfer, and had outcomes data available.

INTERVENTIONS

None.

MAIN OUTCOME MEASURES

Clinical pregnancies rates, miscarriage rates and live birth rates.

RESULTS

BMI was not a reliable prediction factor of any of the measured outcomes. Importantly, the gestational carrier population had better outcomes and a significantly lower overall incidence of maternal, fetal and neonatal complications when compared with infertile patients, treated at our clinic during the same years.

CONCLUSION

BMI is not a reliable predictor of outcomes among gestational carriers.

Willing mothers: ectogenesis and the role of gestational motherhood

While artificial womb technology (ectogenesis) is currently being studied for the purpose of improving neonatal care, I contend that this technology ought to be pursued as a means to address the unprecedented rate of unintended pregnancies. But ectogenesis, alongside other emerging reproductive technologies, is problematic insofar as it threatens to disrupt the natural link between procreation and parenthood that is normally thought to generate rights and responsibilities for biological parents. I argue that there remains only one potentially viable account of parenthood: the voluntarist account, which construes parental rights as robust moral obligations that must be voluntarily undertaken. The problem is that this account mistakenly presumes a patriarchal divide between procreation and parenthood. I propose a reframing of procreation and parenthood from a feminist perspective that recognises gestational motherhood as involving robust moral obligations that ought to be voluntarily undertaken. If this were the case, all gestational mothers would be, by definition, willing mothers. To make this happen I argue that ectogenesis technology must be a widely available reproductive option.

Producing Parenthood: Islamic Bioethical Perspectives & Normative Implications

Biomedicine has opened up new possibilities for parenthood. Once resigned to remaining childless or pursuing adoption, infertile couples can now pursue options such as gamete donation, in-vitro fertilization, and uterine transplantation, as well as surrogacy. Muslim thinkers have viewed these strategies with both promise and caution given new types of kinship and parenthood result. By drawing upon leading medical fiqh academy resolutions this paper critically analyses Islamic normative views on the production of parenthood. We start with an overview of the Sunni rulings on gamete donation, gestational surrogacy and uterus transplantation, and the rationale and scriptural sources that undergird these moral assessments. Next, we discuss the contested relational bonds in light of larger discussions on genetics and the preservation of lineage. Finally, we comment on how scientific data, social imaginaries, and empirical gaps impact Islamic normativity regarding the production of parenthood so as to inform more holistic Islamic bioethical assessments.

International Commercial Surrogacy as a New Head of Tortious Damage: XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832

In XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832, the Court of Appeal recognised commercial surrogacy in California as a permissible head of damage in a case of negligently inflicted infertility. Due to changing public policies and judicial opinion regarding the practice, and by incorporating the three-part test of illegality developed for civil claims by the Supreme Court in Patel v Mirza [2016] UKSC 42 into tort law, the Court of Appeal held that the principle of restorative justice required a departure from the precedent established in Briody v St Helens and Knowsley AHA [2001] EWCA Civ 1010.

EAST SLAVIC SURROGATE MOTHERHOOD: STATE OF LEGAL REGULATION AND RISK OF HUMAN RIGHTS VIOLATION

OBJECTIVE

The aim: The aim of the study is to determine the state of legal regulation of surrogacy in Ukraine, Russian Federation and Belarus, to identify risks of human rights violations, to identify legal and medical mechanisms to combat the exploitation of women, and to outline a portrait of a surrogate mother.

PATIENTS AND METHODS

Materials and methods: The empirical basis is the legislation of Ukraine, Russian Federation and Belarus, which regulates the service of surrogacy, information from the websites of agencies and clinics in this area, as well as personal stories of 41 surrogate mothers, set out in open sources. The following methods were used: dialectical, comparative, statistical, induction and deduction, questionnaire, analysis and synthesis, content analysis.

CONCLUSION

Conclusions: The results of the study clarify both the common features of the legal regulation of surrogacy in the East Slavic countries, and the specifics of each of them; the main problems in the field of its application are outlined; the risks of violation of the rights of genetic parents, children and surrogate mothers are characterized. Legal and medical mechanisms for counteracting the exploitation of surrogate mothers have been identified.

[SURROGACY - ITS MEDICAL, LEGAL AND ETHICAL ASPECTS]

During July 2018, Israel went through a social turmoil due to the completion of the legislation of the surrogacy act which exclude gay men from the option of having their own children through surrogate pregnancy. Gay men were outraged also because this denial of the state means that such treatment will not be subsidize since these treatments are quite expensive. In light of the public and media mayhem following the above mentioned law, we revise the relevant literature regarding surrogate pregnancies, mainly for the social aspect of this issue. It seems that most women, who experience surrogate pregnancy, are not affected physically or mentally. However, these finding may not be relevant to surrogate women in underdeveloped countries who, sometimes, are doing it for the financial benefit. More specifically, this review deals with the new Israeli legislation, which incorporates in it religious elements, hence it prevents certain populations (such as gay men) from the only feasible possibility to become fathers. We emphasize that we describe the situation as it is presented in the current literature as spectators but not as judges.

TOWARDS CREATION OF UNIFIED REGULATION ON SURROGACY IN EUROPE: RECENT TRENDS AND FUTURE PERSPECTIVES

OBJECTIVE

The aim of this paper is to study the existing international legal framework, regulating international surrogacy agreements and to analyse the possibility of adoption of respective unified European legal instrument.

PATIENTS AND METHODS

Materials and methods: The article is based on international legal acts, jurisprudence of the European Court of Human Rights, reports and scientific articles. The research is grounded on dialectical, formal logical methods, methods of synthesis and analysis, comparative legal method and the method of modelling.

CONCLUSION

Conclusions: The authors came to conclusion about the necessity of introducing of unified legal instrument dealing with international surrogacy cases. The article illustrates that the work towards harmonization of surrogacy in Europe started at the beginning of 21st century and the experts group of the Hague Conference on Private International Law is currently working on drafting a respective protocol. The authors provide a list of questions that were not noticed by the mentioned experts but should be included in the protocol.