Parliamentary Assembly Assemblée parlementaire - Coe

Parliamentary Assembly Assemblée parlementaire

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Restricted AS/Soc (2005) 9 revised 6 June 2005 SOCIAL, HEALTH AND FAMILY AFFAIRS COMMITTEE For recognition and supervision of surrogacy as an alternative to sterility Draft report Rapporteur: Mr Michael Hancock, United Kingdom, LDR I Preliminary draft resolution 1. The Assembly notes that medically assisted procreation, which encompasses all medical techniques enabling infertile couples to reproduce, has developed considerably since the 1980s. Among these different techniques, surrogate motherhood or surrogacy entails the carriage by a woman of a child who will be brought up by someone else. 2. For the Assembly, surrogacy motherhood should, amongst the available techniques, be the ultimate one for a woman wishing to have a child. In social and ethical terms, both public opinion and the world of science are divided over surrogacy. It is a practice that is deeply disconcerting for traditional conceptions of the family and women. It is seen by some as a beneficial development resulting from the tremendous progress made in the area of procreation and by others as an aberration of this revolution. 3. Yet it is the oldest method of overcoming infertility and maternal and infant mortality. Today, acceptance of the practice varies across Europe: in some States surrogacy is considered as a medical alternative to the impossibility of pregnancy and tolerated or supervised; in other States it is prohibited and heavy penalties are sometimes applicable to those who take part. 4. The Assembly notes that differences in legislation have prompted some couples living in a country where the practice is prohibited to go abroad, to a country where surrogacy arrangements are lawful or tolerated, or make clandestine arrangements in their own country. 5. It notes that the new information technologies make any prohibition at national level somewhat illusory. They facilitate the use of surrogacy arrangements abroad, making them accessible to more people. 6. At present, these disparities between national situations are causing legal insecurity and giving rise to damaging consequences for the gestational mother, the parents and the child itself: the civil status of children born in this way abroad may not be recognised; a child may end up with no legal mother; establishing motherhood by adoption is not always possible etc. 7. Clandestine surrogacy arrangements have harmful consequences, in that none of the participants, least of all the child, receives proper medical, psychological and legal support. Furthermore, the costs entailed in seeking help abroad create inequality between couples, and the geographical distance hampers the forging of relations between the parents of the child and the gestational mother whereas such links are beneficial to all concerned.

A/Soc (2005) 9 revised

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8. The Assembly notes that the numerous negative reactions to surrogacy frequently hinge on stereotypes and fixed ideas which skew public perceptions and make dispassionate debate difficult. By becoming generalised, surrogacy is becoming a social reality which requires attention from politicians. The question should therefore be brought into the public arena and a debate opened in consultation with all interested parties. 9. In the light of the experience gained in those countries where the practice is recognised or tolerated, the Assembly believes that surrogacy could not lack legitimacy in cases where : - it resolves a problem of infertility - it occurs as the last option in the framework of the medically assisted procreation and - where the interests and rights of the three parties involved – the couple, the child and the surrogate mother – are respected. 10. The Assembly also considers that, for surrogacy to be an acceptable practice, there must be informed consent from the gestational mother and the future parents, regular contact between the gestational mother and the parents, adequate checks on the gestational mother after childbirth and adaptation of the rules on parentage to the specific circumstances of surrogacy. This alternative to sterility also raises the question of the right of the child to have access to its origins. 11. Consequently, the Assembly invites the governments and parliaments of member States of the Council of Europe to open debate on this issue as swiftly as possible, at national and European level, and seek the views of all those involved, so that this practice may be guided and geared to commonly agreed European values while respecting national sensibilities and traditions.

AS/Soc (2005) 9 revised

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II. Explanatory Memoranduma by Mr Michael Hancock (United Kingdom, LDR) Table of contents 1. Preamble............................................................................................................................................... 4 1.1 Definitions ......................................................................................................................................... 4 1.2 Developments to date ....................................................................................................................... 5 1.3 Methodology...................................................................................................................................... 6 1.4 History ............................................................................................................................................... 6 1.5 Distinction between different types of surrogacy arrangement.......................................................... 7 1.6 “Altruistic” and “commercial” surrogacy arrangements: a valid distinction?....................................... 8 2. The interests of the gestational mother ............................................................................................. 8 2.1 Social considerations ........................................................................................................................ 8 2.2 Ethical considerations ....................................................................................................................... 9 2.2.1 The “objectification of women” argument .......................................................................................... 9 2.2.2 The “alienation of women” argument............................................................................................... 10 2.2.3 The “exploitation of women" argument............................................................................................ 10 2.3 Medical and psychological considerations ...................................................................................... 12 2.4 Legal considerations ....................................................................................................................... 13 3. The interests of the child................................................................................................................... 15 3.1 Ethical considerations ..................................................................................................................... 15 3.2 Medical and psychological considerations ...................................................................................... 15 3.3 Legal considerations ....................................................................................................................... 16 4. The interests of the parents .............................................................................................................. 18 4.1 Social considerations ...................................................................................................................... 18 4.2 Medical and psychological considerations ...................................................................................... 18 4.3 Legal considerations ....................................................................................................................... 20 5. Outlook ............................................................................................................................................... 21 5.1 Comparison of legislation in those countries where surrogacy arrangements are allowed ............ 21 5.2 Two possible legal models .............................................................................................................. 22 5.3 The need for a debate ..................................................................................................................... 22 Annex 1: Surrogacy arrangements in Europe and worldwide........................................................................ 24 Bibliography…. 25

a The Rapporteur is extremely grateful to Ms Laure Camborieux, chair of the association MAIA, 5 rue Eugène Brieux, 31200 Toulouse, France, for her assistance in compiling this report and to his parliamentary assistant, Mrs Neha Seth, for the documentary research which she has undertaken in numerous countries


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1. Preamble 1.1 Definitions Medically assisted procreation (MAP): this term encompasses all medical techniques enabling infertile couples to reproduce. A distinction is traditionally made between techniques which allow procreation within the couple, and those involving a third party, either a gamete donor or a gestational mother. Donated-egg surrogacy arrangement: a child is conceived using donated eggs fertilised in vitro by the sperm of the intended father: the resulting embryos are then implanted into the uterus of the gestational mother. Hence, there is no genetic link between the child and the gestational mother. In vitro fertilisation (IVF): MAP technique which comprises the removal of eggs from the woman’s ovaries and their fertilisation in vitro with the partner’s sperm, prior to implantation of the resulting embryo or embryos into the woman’s uterus (this last step is known as embryo transfer). IVF surrogacy arrangement: a child is conceived using the eggs of the intended mother fertilised in vitro by the sperm of the intended father: the resulting embryos are implanted into the uterus of the gestational mother. Hence, there is no genetic link between the child and the gestational mother. Gamete: reproductive cell. The male gamete is the sperm and the female gamete is the egg. Surrogacy arrangement: an arrangement whereby a woman carries a child which will be brought up by somebody else, usually an infertile couple. Paid surrogacy arrangement: when the gestational mother has the pregnancy-related expenses refunded and receives financial compensation for the associated effort, time and inconvenience. Unpaid surrogacy arrangement: where the pregnancy-related expenses alone are refunded by the intended parents. Gestational mother: woman carrying a child which will be brought up by somebody else. Artificial insemination: MAP technique in which the sperm is introduced into a woman’s vagina or uterus. Artificial insemination surrogacy arrangement: a child is conceived through artificial insemination of the gestational mother using the intended father’s sperm: hence the gestational mother is also the genetic mother. Surrogate motherhood, surrogacy: pre-arranged carriage by a woman of a child which will be brought up by somebody else. These terms, however, might be construed as reducing motherhood to the sole task of gestation. Moreover, the word “surrogate”, usually applied to the gestational mother, could be applied equally well to the intended mother. An alternative term sometimes preferred is “preconception arrangement”. Surrogate, surrogate mother: terms generally avoided for the purposes of this objective study of surrogacy arrangements, because the French equivalent (mère porteuse), in particular, has pejorative connotations, and many stereotypes are associated with it.

Intended parents (intended mother and father): the couple planning the pregnancy and intending to bring up the child. In most cases, the intended father is the genetic and ‘social’ father; the intended mother is the genetic and ‘social’ mother, where an IVF surrogacy arrangement is used, or the ‘social’ mother in the case of an artificial insemination surrogacy arrangement.


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1.2 Developments to date The World Health Organization (WHO) defines infertility as a couple’s inability to conceive after at least one year of regular, unprotected coitus. It is estimated that some 10 to 15% of couples face infertility. Medical advances, and in particular advances in medically assisted procreation (MAP), will enable around 60% of these couples to start a family, although this will often entail exhaustive medical treatmenti.

For the individual, there is an overriding sense of partial failure and a lack of self-fulfilment ii, perceived as an invisible handicap and engendering feelings of abnormality, stress, guilt, low self-esteem, helplessness and fear. The ensuing psychological distress can lead to depression and even suicide. Characteristically, this malaise also affects the person’s partner, regardless of the cause of the infertility. Moreover, the problem is experienced more as a couple than individually; hence, the long and arduous investigations and medical treatments may threaten the stability of the relationship1 and lead to divorce.

Socially, the couple becomes more and more isolated and marginalised vis-à-vis relatives and

friends (family celebrations such as Christmas, Mothers’ Day, christenings, etc. become an ordeal). Professionally, the couple’s personal problems may affect their performance and motivation: women are often obliged to take time off work for treatment, which hampers their career developmentiii, iv. In developing countries, infertility may have even more drastic consequences: it may be accompanied by domestic violence and sexual abuse, loss of social standing and economic status, ostracism, etc.v.

Despite all this, infertility is rarely regarded as an illness, particularly as it is not (obviously) life-

threatening. However, the World Health Organization defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. According to this definition, then, infertile people are not in a state of complete health; moreover, their partners are usually affected by their infertility.

It was against this background that medically assisted procreation (MAP) techniques began to be

developed in the 1980s, enabling large numbers of couples worldwide to start a family. At the same time, ignorance of the reality of infertility and MAP created a public climate of “moral panic”, the “reaction when traditional moral beliefs about the family and reproduction appear to be threatened by perceived dangers. The reaction is often unjustified or exaggerated”vi. Surrogacy arrangements were no exception to the rule, raising a number of ethical, social and legal issues of concern to society. For a variety of reasons which we will detail below, reactions to surrogacy arrangements were much more virulent than to other MAP treatments, prompting some countries to make them illegal. Meanwhile, other countries, regarding them as a medical alternative in cases where a woman was unable to carry a pregnancy to term (because she had no uterus or her uterus was malformed, etc.), opted either to adopt a “laissez-faire” approach or to enact legislation governing surrogacy arrangements. Differences in legislation have prompted some couples to seek medical assistance in a third country where surrogacy arrangements are lawful or tolerated. Some couples who are unable to seek help abroad have recourse to clandestine arrangements in their own country. Either way, families face a worrying degree of legal uncertainty: where surrogacy arrangements are concluded secretly or in the absence of appropriate legislation, the gestational mother too is placed in a vulnerable position in medical, social and legal terms. It was against this background that Mr Monfils and others submitted a motion for a recommendation to the Parliamentary Assembly of the Council of Europe on 3 March 2003 on “social and health issues related to surrogate motherhood”. The aim of this paper, then, is to take stock of the information that exists concerning surrogacy arrangements. These controversial arrangements involve three sets of interests. From the point of view


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of couples, in view of their right to start a family and benefit from medical advances, surrogacy arrangements may provide a legitimate response to certain medical indications. However, the interests of the couples concerned may come into conflict with those of the gestational mothers and the unborn children. Surrogacy arrangements can be regarded as legitimate only if the rights of all three parties – couple, gestational mother and child – are respected. 1.3 Methodology

Most of the information in this report is taken from articles in scientific (medical, legal or ethics)

journals. From the 1980s, the majority of articles on surrogacy arrangements related to the legal or ethical aspects, but since the mid-1990s there has been a steady increase in the number of articles with a medical and psychological focus.

This information was supplemented by informal interviews with professionals – doctors,

psychologists and legal experts - working in the field of infertility and/or surrogacy arrangements. Associations involved in surrogacy arrangements also provided us with valuable information

concerning the situation on the ground, particularly in the United Kingdom and the United States. Interviews with gestational mothers and intended parents and the numerous messages posted on Internet forums also gave us a more vivid, less academic, insight into surrogacy arrangements. The information thus obtained makes no claim to be scientific, but shows surrogacy arrangements in a different light.

1.4 History

The first historical reference to surrogacy arrangements is in the Old Testament (Genesis 16 and

30). In Ancient Rome, arrangements of this kind were made in order to continue the lineage in spite of infertility and maternal and infant mortalityvii.

In some African communities, an infertile woman may marry a fertile woman, who conceives a

child with the infertile woman’s husband; the child is considered to be the child of the infertile woman. There are other possible approaches: conceiving a child by the brother of the infertile husband or the sister of the infertile wife, adoption, etc.…”in most parts of Africa, biological parenthood is deemphasized to the advantage of social parenthood”viii. Such practices are widespread in many other culturesix.

In 1978, Louise Brown became the first child to be born as a result of in vitro fertilisation (IVF).

The first IVF surrogacy arrangements were reported in the United States in 1985x, South Africa and the United Kingdomxi in 1987 and Australia3 in 1988. Hence, surrogacy arrangements have been used worldwide throughout the ages to enable infertile couples to start a family. However, an age-old natural practice (insemination through sexual intercourse) has gradually given way to one which involves medical intervention, hence taking surrogacy arrangements outside the close confines of the family.

In 1984 the Warnock Committee in the United Kingdom came out against the principle of

surrogacy arrangements. It proposed that all forms of such arrangements (paid or otherwise) should be banned, but stopped short of proposing that the parents and the gestational mother should be prosecuted. However, two members of the committee, W. Greengross and D. Davies, stated publicly that “there are…rare occasions when surrogacy could be beneficial to couples at last resort…In the best interest of the child that may ensue, we think that stringent care and control are necessary”xii.

In 1985, a young Englishwoman, Kim Cottonxiii, gave birth to Baby Cotton, conceived through

artificial insemination with the sperm of an American man whom she had never met. An American agency, which offered £6 500 to women agreeing to carry a child and to hand it over to its genetic father, acted as intermediary. When Baby Cotton was born, the hospital handed the child over to social services and Kim was unable to surrender the child to its father as she had intended. A court shortly afterwards ruled that Kim Cotton had voluntarily relinquished her parental rights, and found the biological father and his wife to be the legal parents. The case provoked an outcry in Great Britain and the Surrogacy


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Arrangement Act was adopted, outlawing the activities of commercial agencies, but not banning surrogacy arrangements as such.

In 1986, in the United States, Mary Beth Whitehead gave birth to Baby M, also conceived by

insemination. She initially handed over the child to its genetic father, William Stern, before changing her mind a few days later. An initial ruling gave custody to the genetic father and granted Mrs Stern permission to adopt the child; on appeal, however, the judge dismissed the adoption ruling but left the child in the custody of the Sterns while granting Ms Whitehead right of access. The long legal battle in this case intensified the polemic surrounding surrogacy arrangements. However, according to one author (Steinbeck, in Edelman), “the case seems to have been mismanaged from start to finish and could serve as a manual of how not to arrange a surrogate birth” xiv.

In 1990, the Human Fertilisation and Embryology Act established an overall framework for

surrogacy arrangements in the United Kingdom. The same year, Germany outlawed such arrangements, and in 1995, Russia enacted a law authorising them.

In France, two not-for-profit organisations had been providing assistance to couples and

gestational mothers. In contrast to the two cases referred to above, no major problems were encountered. However, the French national advisory committee on ethics came out against surrogacy arrangements in 1988; at that time only the case of artificial insemination surrogacy arrangements had been studied. The law on bioethics passed in 1994 anchored that decision in Article 16-7 of the Civil Code, and made liable to prosecution not just the intermediaries (doctors, lawyers, associations, etc.), but also intended parents who entered into surrogacy arrangements. Between 2000 and 2004 the bioethics law was revised without the issue of surrogacy arrangements being revisited.

Between 1995 and 2000, surrogacy arrangements became more widespread in a number of

countries. The Ethics Committee of the Asia-Oceania Federation of Obstetrics and Gynaecologyxv observed that surrogacy arrangements, which had been authorised in 9% of the countries of Oceania in 1995, were possible in 27% by 2001. In 2002, Greece legalised surrogacy arrangements, whereas Italy, on the other hand, outlawed them in 2003.

There are currently three situations as regards surrogacy arrangements (see Annex 1):

• some countries have opted to draw up specific legislation regulating surrogacy arrangements and the transfer of parenthood from the gestational mother to the intended parents;

• other countries have not enacted legislation, but tolerate the existence of surrogacy arrangements based on private agreements between the gestational mother and the intended parents;

• finally, some countries have opted to prohibit the practice.

1.5 Distinction between different types of surrogacy arrangement Historically speaking, bearing a child for another person is the oldest method of combating infertility, involving a fertile woman conceiving a child through sexual intercourse with the intended father, whose wife is infertile. Later, the development of artificial insemination made it possible to achieve conception without sexual intercourse, the sperm being introduced artificially into the woman’s body. In both instances, the gestational mother is also the child’s genetic mother. In recent times, IVF has made it possible to conceive embryos from the gametes of the intended parents and then implant them in the uterus of the gestational mother. In such cases no genetic link exists between the gestational mother and the child she is carrying.

In the first two cases, surrogacy arrangements have been equated to adultery and in the third, to abandonment of the child by its biological mother. Confusion about these three very different practices has led to them becoming conflated, bringing surrogacy arrangements into public disrepute.


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IVF surrogacy arrangements are, however, less problematicb in a number of respects than those using artificial insemination, and are more readily accepted by societyxvi. Paradoxically, it is the former which are particularly targeted by legislation seeking to prohibit surrogacy arrangements, since artificial insemination surrogacy arrangements, requiring no medical intervention, are by definition not capable of being monitored. We shall therefore distinguish where necessary between these two kinds of surrogacy arrangement. 1.6 “Altruistic” and “commercial” surrogacy arrangements: a valid distinction?

“Altruistic” surrogacy arrangements, whereby the intended parents pay only the costs relating to the pregnancy, differ from “commercial” arrangements, in which the gestational mother receives, in addition to expenses, payment to cover the effort, pain and time connected with the pregnancy.

“Commercial” surrogacy arrangements are the target of numerous ethical objections:

• they are liable to objectify the woman and the child; • the agreement obliges the gestational mother to surrender the child and prevents her from keeping

it should she change her mind after the birth; • they are liable to result in the exploitation of women and limit their scope for informed consent; • the artificial relationships created between people who do not know each other are liable to be

problematic and the subject of litigation; • the presence of paid intermediaries may increase the risk of exploitation of women.

“Altruistic” surrogacy arrangements, it is argued, are more likely to be concluded among family and

friends and are generally looked upon with favour, as they are associated with generosity, self-giving and abnegation and, since they are conducted between people who know each other, do not entail the risk of financial exploitation of the woman. It is a fact that “altruistic” arrangements are more readily accepted by legislation which allows surrogacy arrangements. “Commercial” arrangements, on the other hand, are often vehemently rejected, and the terms used to describe them are frequently disparaging: “buying and selling of children”, “rent-a-womb service” and even “prostitution”.

However, it is hard to imagine that financial gain is the sole motivation for gestational mothers who

are paid; for many the motivation is primarily altruistic rather than financial. The terms “altruistic” and “commercial” therefore introduce an element of moral prejudice;

accordingly we will use the terms “paid” and “unpaid” surrogacy arrangements instead.

2. The interests of the gestational mother 2.1 Social considerations Surrogacy arrangements, which involve a clear separation between the reproductive and social aspects of motherhood, are said to alter the conventional image of the mother and the family and to undermine the social fabric. Paradoxically, some feminists are opposed to surrogacy arrangements, seeing them as profoundly patriarchal, locking the gestational mother into a maternal role while enabling men to ensure the survival of their genes; this argument can be applied only to artificial insemination surrogacy arrangements. Other feministsxvii, meanwhile, take the view that gestational mothers are vilified precisely because they subvert the traditional image of motherhood: they are carrying a child who is not their husband’s while enabling women to pass on their genes (in the case of IVF surrogacy arrangements). b In our day-to-day practice we encounter little hostility towards IVF surrogacy arrangements; there is a greater reluctance to accept arrangements involving artificial insemination.


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Others, finally, welcome the practice, which they see as reasserting the importance of the woman’s body and thus countering the scientific approach which views bodies as objects which can be divided up and interchanged between the sexes. The practice offers a disturbing reminder that the birth of a child may result from a symbolic exchange rather than a purely biological onexviii. For many women, motherhood is primarily about the genetic link rather than about pregnancy itselfxix, xx. Hence, some gestational mothers regard the genetic link as paramount and would not consider artificial insemination, opting instead for the IVF route: they do not regard the child as theirsxxi. For others, motherhood is bound up with pregnancy, and they could not consider being gestational mothers. For a third set of women, the wish to become parents is the key factor, and they are happy with artificial insemination surrogacy arrangements. « My sister Cynthia knew she could not give birth to a baby for someone else. Nevertheless, she generously offered to donate eggs to me should it be necessary. For Cynthia, the origins of motherhood lie more in gestating a baby than in genetic connection ; for [my sister] Linda, the pattern is reversed. This encapsulated the individual differences that co-exist within the cultural meanings of motherhood »18. The gestational mothers (and the intended parents) encountered few negative reactions among family and friends 21, xxii, xxiii, xxiv. “Most of the women in this sample reported social support from family and friends and few negative evaluations from others regarding their decision to be a surrogate”24. These findings would suggest that surrogacy arrangements pose no threat to public order. 2.2 Ethical considerations 2.2.1 The "objectification of women" argument A great many commentators take the view that surrogacy arrangements go against the Kantian precept: “Act in such a way that you treat humanity, whether in your own person or in that of another, always as an end and never simply as a means”. Society's concept of the family, according to which a child has only one mother, may lead to a denial of the existence of the gestational mother. Gestational mothers, it is argued, are used by the intended parents simply as “incubators”, “paid reproducers”, “completely monetizable and fungible objects of exchange”xxv, recognised only for their gestational role. Portrayed thus, surrogacy arrangements appear dehumanising and therefore immoral. This argument seems a good deal shakier if we remember that the parents incorporate the gestational mother into their “family history”. Nowadays, arrangements such as the one in which Kim Cotton14 was involved, where contact between the gestational mother and the parents was restricted, or even forbiddenc, are rare. They have given way for the most part to arrangements where contact between the two parties is promoted and encouraged. During pregnancy In the vast majority of cases, gestational mothers have said that their relationship with the intended parents was harmonious, and that the level of involvement of the couple during the pregnancy was satisfactoryxxvi, xxvii, xxviii. The intended mothers generally go along to the gestational mothers’ medical appointments. Very often, the intended parents are present at the birth to welcome the baby25, 28, xxix. “The commissioning mother formed a strong bond with the surrogate and was very involved in pregnancy”28. Being very closely involved in the pregnancy helps the intended mother to bond with the child and prepare to welcome it; these contacts facilitate the transfer of parenthood and maternal bonding28, 29.

c The Russian programme appears still to operate on this principle.


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After the birth As a general rule, the parents remain in contact with the gestational mother after the birth of the baby by sending cards and photographs and/or getting together27, 29. In the most successful cases, “the perfect journey”, a very close and lasting relationship is formed, particularly between the two womenxxx. The term “sister” or “friend” is often used to describe the new relationship created by the surrogacy arrangement: “For all participants, it was more than a simple business arrangement that would automatically terminate once the baby had been delivered to the commissioning parents”22. Overall, the gestational mothers found it to be an emotionally enriching experience without any negative effects on them or their familiesxxxi. Thus, throughout the process a relationship is built up in which “the gift exchange formulation acknowledges their unique contribution towards the creation of a family, an act that cannot (and in the view of many participants should not) be reduced to mere commodification”xxxii, xxxiii, d. 2.2.2 The "alienation of women" argument Surrogacy arrangements have also been accused of alienating women: the gestational mother must accept the pregnancy without becoming emotionally attached to the child she is carrying, which she must surrender to the intended parents. “One can rather claim that the bond between a pregnant woman and her child is usually (or should be) an integral part of her pregnancy”xxxiv. In this respect, the action of the gestational mother cannot be regarded as just another type of work governed by the rules of the market; Anderson sees it as a form of alienation, and “giving up a child is the kind of choice that anyone should [be allowed to] make”xxxv. However, Fischer and Gillman (1991), in their psychoanalytical study of surrogacy arrangements, observe: “A case like that of Mary Beth Whitehead is an anomaly. […] In this situation, the same norms or expectations about mothers being attached to the babies they carry while pregnant cannot be applied, and therefore the surrogates cannot be expected to behave in the same manner”xxxvi. Hence, women can experience pregnancy in different ways: some may enjoy being pregnant without necessarily wishing to rear the children. Some women see motherhood in terms more of a genetic link than of gestation. To some people, prohibiting surrogacy arrangements is tantamount to defending, against all the evidence, an idealised version of motherhoodxxxvii; it “would be to prohibit mothers from making other particular interpretations of their pregnancy which they might (and sometimes do) want to make”18, xxxviii,

xxxix. Lori Andrews, meanwhile, sees such arrangements as one of the benefits of the women’s liberation movement, making women certain that pregnancy is above all a personal experiencexl. 2.2.3 The "exploitation of women" argument One of the chief objections to paid surrogacy arrangements is the danger of women being exploited. According to this argument, a very poor woman might opt to enter into a surrogacy agreement in order to make ends meet; she is then at risk of being coerced and pressurised and having her freedom of consent undermined. In the absence of free and informed consent, the woman does not have complete autonomy and may be vulnerable medically and psychologically.

d Ragoné makes an interesting comparison with egg donation, the anonymous nature of which, by allowing the contribution of the donor to be denied, amounts to objectification of the donor. However, the anonymous approach is widely used and defended.


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Exploitation: myth or reality? A great many researchers who have studied this paradigm believe that the view that a gestational mother, being poor and a woman, is unable to give free and informed consent is needlessly condescending and paternalistic, not to say insulting17, xli, xlii, xliii. On the contrary, the payment received may enable the woman to escape from a precarious and poorly-paid job, at least for the duration of the pregnancy. “Ideally, we should seek to avoid exploitation in other ways: by ensuring that surrogates are well paid and/or by providing them with other non-exploitative ways of earning money”xliv. And in the final analysis, paid surrogacy arrangements are by definition less exploitative than unpaid arrangements. Above all, however, the image of the poor, exploited gestational mother appears to owe more to stereotype than to reality: “I admit that I went into the interview process looking for evidence that the women had been exploited. I was frustrated when the first surrogate mother I interviewed, an intensive care nurse, had a higher income level than mine;: she didn’t fit my stereotype of a downtrodden, exploited surrogate. Later, when I drove up to the home of a Chicana surrogate […] I thought: ‘I’ve found an example of a woman being taken advantage of’. In our interview, though, she impressed me with her decisiveness and commitment […]” (Lori Andrews in Willmott42). The impact of social norms Paid surrogacy arrangements are also perceived as immoral as they appear to go against “assumed maternal instincts and [abrogate] ‘natural’ motherhood”44. However, this image is based essentially on traditional interpretations of gender: “Because motherhood for women is supposed to be normal, natural and appropriate, to enter a commercial surrogacy arrangement becomes deviant, unnatural, inappropriate. […] Agreeing to become pregnant for money violates norms specifying that a woman should become pregnant for love”xlv. The impact of these gender-related norms can be seen in other medical techniques: women who said that they had financial motives for donating eggs have been turned down by the doctors running the programme, while sperm donors citing the same motives were accepted33. The supposed advantages of unpaid surrogacy arrangements Numerous studies show that pressure exerted - consciously or unconsciously – by the familye may also be decisive in persuading a woman to enter into a surrogacy arrangement17, 45. For example, two of the women accepted by the Helsinki Infertility Clinic45 were the mothers of the intended mothers. One of them, a woman of 52, suffered from uterine fibroma and mild blood sugar problems; the other, 48 years of age, had a history of cerebral ischaemia, migraines, sciatica and a gastric ulcer. Likewise, the first gestational mother in South Africa was the genetic and gestational grandmother (at 49) of the triplets in question17. The lack of another suitable candidate probably influenced the women’s decision to act as gestational mothers and the decision of the medical team to accept them for treatment. Surrogacy arrangements between friends and family are frequently assumed to run smoothly “in the harmony of the family”. Conversely, when it comes to people who do not know each other, the assumption is that problems will arise in the relationship and disrupt the process. We have already touched upon the issue of the family pressures which may prompt a gestational mother to enter into a surrogacy arrangement to some extent against her will; if disagreements arise or she suffers psychological problems as a result of the pregnancy, there will be a lasting impact on the family. By contrast, the agreement between a gestational mother and the intended parents may be based on things they have in common, and is usually the result of a mutual decision. While it brings people together just for a specific purpose, they are united by a common project.

e "Research on live kidney donation suggests that women are particularly vulnerable to exploitation within families. […] situational or indirect pressure, such as guilt, perceived family expectations, […] motivate the donor. […] Marine, Simmons and Marine suggest that donation is an extension of women’s usual family obligations of caring, nursing and giving and sustaining life."45


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Ultimately, the safeguarding of the rights of the gestational mother is not contingent upon the presence or absence of payment: whether or not she receives payment, the pitfalls involved in surrogacy arrangements are broadly the same. On the other hand, a rigorous selection procedure (based on medical and psychological criteria), comprehensive information (both medical and legal) and ongoing support will enable her to make an informed decision, while she remains free to enter into such an arrangement and enjoys protection. A number of commentators stress the importance of medical, psychological and legal advice for both parties. The control machinery built into the British and American programmes enable unsuitable couples and/or gestational mothers to be weeded out11, 12. Generally speaking, the reasons given have been of a psychological or financial nature (the gestational mother was in an unstable financial situation) and/or related to concerns for the welfare of the child or about the inappropriateness of her age or the medical indications. 2.3 Medical and psychological considerations Women almost like other women Several studies have described the typical profile of gestational mothers in the United States and the UK22, 24, 27, 37, xlvi. Most are white, aged around 30, married or co-habiting and have at least one child. They have had one or more pregnancies without complications. They have an average level of education, and most work part-time or are housewives. Their partner supplements their income and in most cases provides considerable emotional support. In most countries which allow surrogacy arrangements, it is illegal to advertise for a gestational mother. The gestational mothers, therefore, were often made aware of the possibility through the media22,

27, and waited an average of 6.2 years before proceeding27. In the majority of cases, the decision came from the future gestational mother herself, in full agreement with her partner22, 23, 27: “There was no evidence of them being coerced into becoming surrogate mothers by their partners or husbands although several stated explicitly that they would not have gone ahead without their husband’s or partner’s overt support”22. Where the gestational mother was known to the couple (sister, friend), the proposal came from the gestational mother herself rather than from the intended mother28. Potential gestational mothers do not present any particular psychological problems; they tend to be extrovert, altruistic, active and imaginative23, 24, 37. Hence, “the ‘average’ surrogate emerges as a white mother with a fair amount of education and income. As a group, they cannot be described as destitute or living in poverty, and do not need the fee being paid them for basic survival”xlvii. “Money wasn’t important […]. My father would have given me the money not to do that “. (Ragoné, 2003). The chief motivation for potential gestational mothers is a desire for self-fulfilment and recognition23, 24, 27, 37: “They may not find the cure for cancer but feel that they can make their best contribution to the world by bringing another life into it because pregnancy they ‘do well’”22. Most of them, at some time in their lives, have encountered infertility among their friends or family, and have felt compassion towards infertile couples. Many candidates – people who had themselves been adopted, for instance – felt a desire to give something back to society22. Financial considerations are not the overriding reason for becoming a gestational mother: "Many surrogate programme directors report that surrogates telephone their programmes unaware that payment is involved […] Nearly all surrogates [she interviewed] stated – repeatedly - that the importance of remuneration decreased over time."33.


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One of the chief motivations for gestational mothers is to build a strong relationship with the couplexlviii: "I personally didn't want to reduce my chances of a great relationship based on money alone.[…] my numbers were in the average range (20k), but I was willing to settle at $3500 […] because my IP's lived so close AND because they are such wonderful people ! I personally don't want this to be all about numbers". Payment seems to be regarded more as an acknowledgement of the responsibilities these women take on for nine months, and of the time, inconvenience, etc. associated with the projectf. Gestational mothers may be more interested in the pregnancy – which allows them to attain their ideal self-image – than in the foetus itself: they may feel “stronger, solid and more confident than is their usual experience of themselves” 37. Comparing their own pregnancies with carrying a child for someone else, they are quick to acknowledge that the baby isn’t their own27, 37, 47. Many refer specifically to the joy of being pregnant, saying that surrogacy allows them to be pregnant and to give birth without the responsibility of bringing up the child22. In the cohort interviewed by Jadva, the gestational mothers overall experienced few or no problems after handing the child over to the intended parents; any problems there were diminished with time. None developed depression in the short, medium or longer term 27. Söderström-Antilla 45, meanwhile, reports that 11% of the gestational mothers presented symptoms of depression (half of them needing treatment with anti-depressants and psychotherapy). While this figure seems to tally with the prevalence of post-natal depression, it highlights the need to monitor the gestational mother after delivery. In the rare cases where a gestational mother refused to surrender the child, it emerged that she had little confidence in the commissioning parents’ ability to rear the child22, either because they had shown no interest in the child during the pregnancy or because they had separated during that time (personal communication from COTS association). It should be pointed out, however, that in this handful of cases the gestational mother had a genetic link with the child. Financial considerations, then, tend to be secondary to other motivations, such as the wish to help a couple, the desire to be pregnant and personal fulfilment. As surrogacy arrangements become more socially acceptable, a different group of women, motivated primarily by altruistic reasons, is now turning to them. In addition, the fact that anonymous arrangements have given way to arrangements which allow contact between the gestational mother and the intended parents makes altruistic motivations more realistic. 2.4 Legal considerations The principle of inalienability of the human body According to this principle, which is invoked in particular in France to justify the prohibition of surrogacy arrangements, a person cannot make his or her body available either for non-commercial or, more especially, for commercial purposes. Treatment may be performed on the human body only where it is medically necessary for the person concerned. Accordingly, surrogacy arrangements, whether paid or unpaid, are unlawful 66. Strict adherence to this principle would mean that donating blood or bone marrow would be unlawful, as would the donation of gametes, organ donation between living persons, medical research with no direct benefits, etc., all of which are nonetheless permitted by law. “The ban on surrogacy

f In the ideal situation, the time invested by the gestational mother is around a year (including selection tests, medical tests, medical treatment, etc.). In the event of failure, the amount of time invested may be much longer (a year and a half, two years…); during this time the gestational mother has little time or energy to devote to other professional or personal projects.


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arrangements has ceased to be justified since the adoption of the 1994 lawsg regulating other forms of heterologous procreation” 66. The principle of non-commercialisation of the human body This principle complements the first and states that agreements which treat the human body, its products or parts as financial assets are prohibited. However, in many countries, sperm and egg donation give rise to payment: “There should be no compensation to…donors for providing the oocytes. However, this does not exclude the reimbursement for expenses, time and risk which are associated with the donation” (IFFS international consensus on assisted procreation, 2001). Similarly, as regards protocols relating to medical research with no direct benefit, Recommendation R(90) 3 of the Committee of Ministers to the member States concerning medical research on human beings states that: ”expenses and any financial loss may be refunded and in appropriate cases a modest allowance may be given for any inconvenience inherent in the medical research”. However, the recommendation stresses the absolute need for informed consent. A number of countries (United Kingdom, Israel, United States, South Africa) have recognised the validity of refunding expenses connected with the pregnancy and the cost of obtaining legal, psychological and medical advice and life insurance, and allow payment for the effort, time and inconvenience associated with the pregnancy. Payment must be “reasonable” and must be made monthly (and not at the time of handover), or the arrangement may be rendered null and void (for details see, for example, the Uniform Parentage Acth, Section 8, USA, 2000). In such circumstances the agreement relates to a service rendered, and definitely not to the sale of a child. The value of surrogacy agreements

Agreements of this kind, where they are enforceable, require the gestational mother to hand over the child to the intended parents. This offers the latter some protection, as it protects their rights vis-à-vis the unborn child.

However, a number of commentators consider such clauses to be unlawful, given the particular

bond which is forged between a woman and any child she carries. Nonetheless, these agreements protect the rights of the gestational mother and the child. In the

absence of an enforceable clause, the intended parents could refuse, after the birth, to acknowledge parentage of the childi. Thus the gestational mother would be named as the mother and her husband as the father. They also protect the interests of the child, in that they may avoid protracted legal battles to determine parentage.

g One of the provisions of France’s 1994 laws on bioethics is that organ and gamete donations must be made on an anonymous basis without payment. h http://www.law.upenn.edu/bll/ulc/upa/final00.htm i In the Buzzanca case, the couple divorced one month before the child, produced from a donated embryo, was born. The intended father, having no genetic link with the child, refused to accept legal paternity; furthermore, an initial ruling stated that neither the intended mother, who wished to be named as the legal mother, nor the gestational mother, was the child’s legal mother. The Californian court of appeal named the intended parents as the child’s legal parents, citing the intentions they had expressed in the agreement concluded with the gestational mother. http://www.surrogacy.com/legals/jaycee/jayceesum.html.


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3. The interests of the child 3.1 Ethical considerations

Surrogacy arrangements have frequently been described as the selling of children. “Surrogacy

compels mothers to sell their children, to use them as objects for profit-making. Markets in reproductive labour give people the opportunity to ‘shop’ for children, seeking out arrangements that will maximize the value of their babies” 36.

A child whose conception and birth involved money changing hands might feel that it has been

‘bought’. Van Nierkerk dismisses this stigmatising argument: “The fact that [the parents] came to have this child through a surrogacy arrangement […] in no way suggests that they will use this child as an instrument or object […] and that they will sell the child when it has lost its use, any more than if the parents had a child in the conventional way” xlix.

Furthermore, if the laws of economics were actually to be applied to surrogacy arrangements, a

market-style scale of charges according to the number and sex of the children would be expected to exist j. Such a practice would undoubtedly, and rightly, be condemned by the countries concerned. Moreover, the interest shown by gestational mothers in the welfare of the children they carry does not support this hypothesis. When UK social services asked Kim Cotton whether she would agree to Baby Cotton being handed over to another infertile couple, she replied: “I had to say no. I had always felt that I had had the baby for those particular parents and I also thought that the father might have some rights of appeal”. If the intended parents had not been awarded custody of Baby Cotton, Kim Cotton and her husband would have kept the baby themselves14.

Being a parent does not mean being able to do as one pleases with the child, but being

responsible for it. Seen from this perspective, surrogacy arrangements are not about donating or selling a child, but about transferring parental rights and obligations from the gestational mother to the intended mother (who may also be the genetic mother). As in the case of adoption, the latter is also the mother in social terms: “the surrogate merely agrees to a contract in which she relinquishes her rights to claim legal parenthood of the ensuing child” l. 3.2 Medical and psychological considerations According to Ragoné’s46 estimate, some 10 000 children had been born as a result of surrogacy arrangements in the United States by 1994. There is a dearth of literature on families resulting from surrogacy arrangements, just as there are few studies covering adopted children or children born using MAP techniques, since the very fact of singling out these children could be disruptive and is held by many to be unethical. Numerous studies have shown that a bond is forged between the foetus and its mother during pregnancy; it is therefore legitimate to consider the impact of the breaking of this bond on the child’s development.

In this respect, while the situation is comparable to adoption, there are major differences. Unlike adoption, the child has a genetic link with one (if not both) of the intended parents. It is wanted by them and is not abandoned at any stage. Most importantly, a bond between the intended mother and the child can be established during the pregnancy, and contact between the gestational mother and the child is generally maintained.

As in the case of adoption, damage is more likely to result from secrecy surrounding the child’s

personal history. The rights of the child include access to information concerning his or her origins, particularly in the case of artificial insemination surrogacy arrangements, where the gestational mother is

j In July 2004, a child-trafficking ring was broken up in France. Male babies were being sold for 6 000 euros and females for 5 000 (J. Constant, Le Parisien, 23 July 2004).


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also the genetic mother. However, parents cannot be forced to tell their children about the circumstances of their birth, either in the case of adoption or in the case of a surrogacy arrangement, although they can be encouraged to do so.

Generally speaking, the intended parents plan to explain to their children and their families the

circumstances of their birth, even in cases where the gestational mother is also the child’s genetic mother. The tendency to secrecy which exists in the case of gamete donation is not found here: as a rule, parents recognise the right of children to know about their origins, an approach which is consistent with their plans to remain in contact with the gestational mother and her family 25, 28.

The distance which exists between the gestational mother and the child she is carrying, which she

does not regard as her own47, has prompted some observers to fear for the health of the child. However, children born as a result of surrogacy arrangements seem no different from children conceived in the conventional manner as regards birth weight, complications during birth or deformities 50, li. Children born through IVF surrogacy arrangements begin to talk when they are about two, the same age as other children.

Parent-child relationships have been compared in families formed as a result of surrogacy

arrangements and other families. The outcomes, in terms of ease of adjustment to parenthood, psychological well-being of the parents, quality of parental care and emotional investment are generally favourable to families formed through surrogacy arrangements: “Those opposed to the practice of surrogacy have argued that surrogacy is unacceptable because it represents the commodification of children. […] In the absence of systematic information, there has been much speculation, usually negatively framed, about the outcomes of surrogacy for all those concerned. The findings of the present study do not support these negative assumptions with respect to the child’s first year of life”lii.

Generally speaking, society has a duty to ensure that children benefit from an environment in

which they can flourish. From this perspective, there are no grounds for asserting a priori that parents who have to resort to surrogacy arrangements will be ‘bad parents’, or that the child will experience more problems than a child in any other kind of family. The argument based on the interests of the child, if taken to its logical conclusion, would mean that the child would have been better off not being born in the first place. 3.3 Legal considerations Consequences of prohibiting surrogacy arrangements

Some countries, such as France, Spain and Germany, have opted to prohibit all forms of surrogacy arrangements. French law states that “all agreements relating to procreation or gestation on account of a third party are void” (Article 16-7 of the French Civil Code). Under French legislation the intended parents, the participants (doctors, lawyers) and any intermediaries (associations, agencies, etc.) are liable to prosecution, whereas in Germany, neither the gestational mother nor the intended parents face criminal charges. These provisions mean that no prior arrangement between the gestational mother and the intended parents is valid in establishing the parentage, and in particular the identity of the mother, of a child born through a surrogacy arrangement; parentage will be legally assigned to the gestational mother and, where applicable, her husband. In addition, these criminal-law provisions have the effect of making it very difficult for intended parents and gestational mothers to make contact, while prohibiting the involvement of professionals such as doctors, psychologists and lawyers. Accordingly, couples wishing to enter into a surrogacy arrangement may go abroad, either to another European country or, in most cases, to the United States. American and Russian agencies provide translated versions of their websites and offer the services of translators for non-English speaking couples. However, this is a very costly undertaking, and the couples are left to fend for themselves, as


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the law penalises anyone who might act as intermediaries (e.g. associations) and provide them with information. Depending on the legislation in the country concerned, the birth certificate is made out in the name of the intended parents; the gestational mother is generally not mentioned. However, the civil status certificates, even when they are perfectly in order, are rarely recognised by the parents’ country of origin if the registration officer has suspicions concerning the circumstances of the birth (France, Rennes court of appeal, 2002). In a similar case in Australia, for example, it emerged that neither set of parentsk (neither the intended parents nor the gestational parents) was able to authorise medical treatmentliii.

Thus, in the interests of consistency with their national legislation, countries which prohibit surrogacy arrangements refuse to recognise the civil status of children born abroad, a refusal which is against the children’s interests.

Furthermore, the ban on surrogacy arrangements allows countries to prevent IVF surrogacy

arrangements being concluded within their territory, although, paradoxically, this is the form of such arrangements which is easiest to regulate and least controversial. Artificial insemination surrogacy arrangements, on the other hand, do not require any medical intervention, as insemination with the sperm of the intended father can be carried out in the home. There are even websites which explain the procedure: a small advertisement in a newspaper or on a website may be all that is needed to recruit a gestational mother and set the procedure in train. In this way, an agreement can be conclude privately without any medical, health, psychological or legal supervision.

At birth, the child can be declared to be the child of the gestational mother and the intended

fatherl, and the matter left at that. However, in some countries, such as France and Luxembourg, the gestational mother has the option of giving birth anonymously, thus keeping her identity secret. In such cases, the intended father recognises the child, officially born to an unknown mother. The intended mother may then apply to adopt her husband’s child. However, establishing maternity via adoption is not a foregone conclusion: while the intended mother has been acknowledged as the legal mother in a number of cases, other cases have ended in refusal (France, Cour de Cassation, 9 December 2003). Reports suggest that some Belgian gestational mothers give birth anonymously in France on behalf of Belgian couples.

Finally, the gestational mother may impersonate the intended mother. While this is highly illegal, it

is difficult to detect. We are reliably informed that it has been done in France on at least a few occasions. From the child’s point of view, this is ultimately the only solution which provides certainty as to who is the legal mother.

Other countries such as Belgium, the Netherlands, Finland and Denmark have no legislation on

surrogacy arrangements. In the case of IVF surrogacy arrangements, some medical teams have agreed to help couples on a case-by-case basis: the infertile couple and the potential gestational mother submit a dossier to the full medical team (gynaecologists, psychologists, midwives, etc.), who decide whether to accept or reject it.

Following the birth, the gestational mother relinquishes her parental rights to the intended father,

and the intended mother applies to adopt her husband’s child. In one case in Belgium, a judge refused the adoption application in order not to endorse a surrogacy agreement; in two other cases, an adoption order was granted in the interests of the childliv.

k As the gestational parents do not feature on any such certificates, the children do not have any alternative if the intended parents are not recognised as the legal parents. l In the child-trafficking case uncovered in France in July 2004, the (Bulgarian) mothers were alleged to have fled to Bulgaria, leaving the children in the care of their presumed fathers (J. Constant, Le Parisien, 23 July 2004). Dozens of transactions were believed to have taken place.


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Establishing the identity of the legal mother is therefore an uncertain procedure, although it is in the child’s best interests.

So prohibiting surrogacy arrangements tends to drive them underground, creating a situation in

which none of the participants, least of all the child, receives proper medical, psychological and legal support: a minority of the Warnock committee argued that "lacking any means of obtaining adequate advice, arrangements would be made without medical or counselling support. […] Hence, legislation should make provision to ensure that couples who were determined to resort to surrogacy were able to do so in a manner least likely to result in harm to their own interests, the interests of the surrogate and most importantly, the interests of any child to be born". A similar line was taken by the Ontario Law Reform Commissionlv (Chen) and the National Conference of Commissioners on Uniform State Law, both of which opted for regulation rather than prohibition. 4. The interests of the parents 4.1 Social considerations In social terms, the main issue thrown up by surrogacy arrangements is that of motherhood: is it genetic, gestational, intended, social? By dividing up the motherhood role, they clash head on with western idealised images of the mother and the family. This goes a long way towards explaining the resistance to such arrangements. Thus, egg donation, for instance, separates genetic and gestational motherhood, but has the advantage of preserving the appearance of the nuclear family: this is part of the reason why it has been more readily accepted than surrogacy arrangements. However, births outside marriage, reconstituted families, single-parent families, adoptive families and same-sex parenting have created a host of alternatives, and the traditional family is now just one of many forms of family. In this context, surrogacy arrangements may be seen as just another means of starting a family. The “family” argument used against surrogacy arrangements is ill-founded, unless one wishes to condemn everything which falls outside the parameters of the traditional family. However, there remains the issue of legal descent. Usually, this is couched in terms of ownership: “To whom does the child belong?”, whereas the real question should be “Who is to have parental responsibility for this child?”50. In answering this question, it has been common to draw somewhat hasty parallels between surrogacy arrangements and adoption. In the case of adoption, the biological (genetic and gestational) mother is fully entitled to claim parental responsibility for the unborn child. Neither of the potential adoptive parents has any particular entitlement in that regard, although one of them will be named as the legal mother or father once the gestational mother has relinquished her rights. In the case of surrogacy arrangements, each party has a claim to parental rights: the gestational mother, the genetic father and mother and the intended parents (those who planned the pregnancy and intend to raise the child). Various commentators take the view that pregnancy is sufficient to create an indissoluble bond between the gestational mother and the child. However, « to argue that the bond established during a pregnancy, begun without the intention of establishing personal parenthood, must inevitably be stronger and of greater ‘worth’ than that arising in a childless couple, choosing surrogacy as their only chance of becoming parents, seems problematic »17. Hence, the intended parents may legitimately claim parental rights in respect of the child. 4.2 Medical and psychological considerations


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The majority of intended parents are white and married, their average age is 39, and they have high levels of education and incomem. They are all medically unable to carry a pregnancy to term and/or have made repeated unsuccessful attempts at medically assisted procreation, and have resorted to a surrogacy arrangement after more than five years of trying 21, 25, 28, 29. There is therefore nothing to suggest that surrogacy arrangements are entered into for personal convenience. The legislative safeguards, which restrict such arrangements to cases of medical need, as well as the difficulties inherent in the procedure, rule out any such possibility. Kleinpeter (2002) stresses the desire of couples to have a genetic link with the child; several couples had considered adoption, but had rejected the idea, fearing either opposition from their families or failure to be accepted as adoptive parentsn. The concernso of parents at the time when they embark upon the procedure relate to: • the heavy financial cost, which is not covered by insurance; • whether the gestational mother will surrender the child after the birth; • the difficulty of coming to terms with failing to fall pregnant; • the need to trust the gestational mother to take care of herself and the baby.

The couple and the gestational mother are put in contact with each other either through associations (COTS, Surrogacy UK), commercial agencies (only in the United States) or dedicated websites.

At this stage, both parties may benefit from assistance with their decision from associations 21, 25,

doctorslvi or psychologistslvii, lviii, lix . It is not uncommon for the intended parents 57 or the gestational motherlx to change their minds following these discussions.

The decision to “work” together sometimes comes from the gestational mother22, but is most

commonly a joint decision. It is based on objective criteria, but is above all an instinctive choice based on a “gut feeling” between the two women: "Two thirds of the surrogates and intended mothers interviewed described instances of immediately recognising one another at first sight even though they were strangers" 30.

The fear of failure (not finding the right gestational mother, medical treatment ultimately proving

unsuccessful) and worries about the conduct of the gestational mother during the pregnancy are the most testing aspects 25, 28, 29. “The best part is having this incredible child who came from so many people putting positive energy together and that those people are still in touch with each other” 29.

Hence, this is not some impersonal, dehumanised agreement, but a relationship based on mutual,

intimate and deep-seated recognition in pursuit of a common goal. The figures relating to surrogacy arrangements are obtained from various sources. It is very

difficult to establish the number of cases involving artificial insemination, as the arrangement may remain entirely within the private sphere. The COTS association, for example, recorded 437 births in the United Kingdom between 1998 and 2002lxi. Of 113 clinics in the United Kingdom, 29 oversaw IVF surrogacy arrangements. At Bourn Hall Clinic, they represented around 1% of IVF treatmentslxii. The proportion is m This stereotype of well-off intended parents is widespread. However, only parents who had actually succeeded in embarking upon treatment were interviewed in these studies. For many intended parents, the cost of the process continues to be prohibitive or forces them to make drastic changes to their lifestyle. n In France, only 20% of couples succeed in adopting (http://www.famille.gouv.fr/, 16 June 2004); this seems to be typical of Western countries. o The main concern for parents from countries where surrogacy arrangements are prohibited is about the child’s uncertain legal status.


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identical in the United Stateslxiii. The number of IVF surrogacy arrangements, then, remains very small, largely because the medical indications for treatment are relatively rare.

Whatever the medical reason for entering into a surrogacy arrangement, the results for IVF-based

arrangements are comparable to, if not better than, those for “conventional” IVF treatment 11, 63, lxiv , lxv. Refusal by the gestational mother to hand over the child to the intended parents is the first risk

which people instinctively mention. However, “92% (UK) and 96% (USA) of surrogacy arrangements appear to have a successful outcome in that the child is raised by the parents initially intended by all the parties … and custodial wrangles do not arise. […] These ‘success’ rates exceed those illustrated as being acceptable on a philosophical basis” 17.

Thus, “treatment by gestational surrogacy is straightforward […] the aspects that require particular

care […] are the selection and in-depth counselling of suitable hosts and the commissioning couples” 63. 4.3 Legal considerations Protecting the interests of the intended parents Instinctively, one tends to assume that the gestational mother is vulnerable vis-à-vis the intended parents, as she is generally less well-off than they are. If we examine this argument more closely we see that, while the gestational mother has a number of options for meeting her needs (starting with welfare assistance), the intended parents, for their part, have few options for starting a family. In most cases, they have undergone exhaustive medical procedures before arriving at this last-resort solution. Once the pregnancy has begun they are “at the mercy” of the gestational mother. Although such cases appear to be rare, it cannot be ruled out that the gestational mother may subject the parents to financial and/or emotional blackmail regarding the transfer of parental rights. The interests of the intended parents, just like those of the gestational mother and the child, must therefore be safeguarded. The principle that personal status cannot be freely disposed of

This principle, according to which the right of action relating to descent cannot be waived, is often invoked, in countries which ban surrogacy arrangements, in support of the legal impossibility of the intended mother's recognition as the child’s legal mother. In most of the legislation, maternal descent is determined according to the identity of the woman giving birth. The mother is the woman who gives birth, and the father is her husband. However, particularly in France, the law allows notable exceptions to this principle. Anonymous childbirth and adoption are just two examples. Given the numerous exceptions to this principle, it “cannot be effectively invoked to support a ban on bearing a child for another person”lxvi. By definition, neither the gestational mother nor her husband intends to raise the child, while the intended parents, on the other hand, wish to do so. It seems clear that the norms generally applied to the naming of the legal mother are not applicable. Appropriate legislation should make it possible to establish a firm link in terms of descent between the intended parents and the child. Many legal experts object to surrogacy agreements on the grounds that the child’s interests are not served by private individuals concluding a contract assigning parental rights and responsibilities in


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defiance of family lawp. In relation to surrogacy arrangements, these arguments do not really hold water, as, in practice, a judgement is always issued endorsing the prior agreement concluded between adults, whether before conception, during the pregnancy or after delivery. This is essential to the establishment of legal parentage for the intended parents: the agreement by itself is not a sufficient basis for drawing up the birth certificate, but must be validated by a court. 5. Outlook Surrogacy arrangements have been, and continue to be, the subject of very heated debate, as they shatter traditional images of the family and women. In addition, “surrogacy […] is socially and ethically divisive because it does not attract universal opprobrium, because it may be seen […] as a natural and beneficial product of the reproduction revolution as much as an unnatural and abnormal artefact of it” 59. From a medical or psychological perspective, there is no evidence to suggest that the fears surrounding surrogacy arrangements are justified, when they are carried out in a strict legal and medical environment. By contrast, prohibiting surrogacy arrangements cannot prevent them from being implemented secretly, and makes it impossible to safeguard the interests of the gestational mother, the child and the intended parents. Failing to legislate is equally unsatisfactory from this point of view. “Any restrictions on access to [to health services] have to be justifiable and defensible, and have to be shown as not violating people’s human right to health” 7. The new communication technologies make the banning of surrogacy arrangements unrealistic. By allowing information to circulate, they make questionable ethical arguments harder to sustain and undermine the moral authority of the prohibitions. By enabling people to make contact with each other, they make recourse to surrogacy arrangements abroad slightly less complicated than in the past, and accessible to more people. Nevertheless, the financial cost of going abroad creates real inequalities between couples. Furthermore, the geographical distance is inimical to establishing and maintaining a strong relationship between the gestational mother and the parents, one which is of benefit to all the parties. However, a pregnancy on behalf of another person differs in many respects from a conventional pregnancy. While the outcomes described here are by and large reassuring, such arrangements should not become commonplace. Many commentators agree, therefore, on the need to establish an appropriate legal framework tailored to the specific nature of surrogacy arrangements 12, 13, 56, 57. Several models in operation in different countries could serve as the basis for a critical examination of the issues with the aim of establishing such a framework. 5.1 Comparison of legislation in those countries where surrogacy arrangements are allowed As a general rule, those countries which have legalised surrogacy arrangements have very similar rules, incorporating some or all of the following: • surrogacy arrangements may be considered only in cases where the intended mother is unable to carry

a pregnancy to term; • they are generally intended for heterosexual couples; • the gestational mother and/or the intended parents must fulfil certain (minimum and maximum) age

requirements; • at least one of the parents must have a genetic link with the child (some countries allow only IVF

surrogacy arrangements); • the gestational mother must have at least one child, and must have completed her family; • she must not have any medical or psychological contra-indications;

p In divorce cases, for example, the parents do not have sole power to decide what happens to the child, for the judge is responsible for ensuring that the child’s interests are served.


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• she must have received independent advice from a lawyer, doctor and any other intermediary who might help her to give informed consent;

• she must not be paid; however, some legislation allows the expenses arising out of the pregnancy to be refunded. In some cases, reasonable compensation is allowed for the responsibility, effort, time, etc. involved;

• the intended parents and the gestational mother (and her husband where applicable) must give their informed consent;

• no paid intermediary may put a gestational mother and a couple in contact with each other; advertising for surrogacy arrangements is prohibited;

• an independent body such as a local ethics committee (United Kingdom), a national ethics committee (Israellxvii, New Zealand) or a competent court (South Africa, Greece) must make a decision on each case. Medical treatment cannot go ahead without the approval of this body.

Differences exist on certain points: in Israel, only IVF surrogacy arrangements are allowed, and

the gestational mother must be unmarried, widowed or divorced. In most countries, surrogacy agreements are void and unenforceable, with the intended mother establishing her legal status as mother through adoption or a transfer of parenthood following delivery. The rules governing adoption are unsuited to surrogacy arrangements, as the outcome of the adoption procedure is uncertain and the rights of the intended parents 43, 54 and the gestational mother are not safeguarded. 5.2 Two possible legal models Two models have been devised for monitoring surrogacy arrangement procedures and establishing legal parentage (see Willmott 42 for details). The accreditation model is the one applied in the United Kingdom. Only licensed clinics may offer the medical treatments involved in IVF surrogacy arrangements. They submit the dossiers prepared by the intended parents and the gestational mother to an independent ethics committee which decides on a case-by-case basis. The committee must be satisfied that both parties are suitable candidates, both medically and psychologically, that they have been given all the information required to give informed consent and that there is nothing which is likely to interfere with the establishment of legal parentage under the terms of the 1990 HFE Act. If this is the case, the committee authorises the clinic to proceed with medical treatment. On delivery, the gestational mother is declared to be the child’s legal mother. She must then apply with the intended father for a “parental responsibility agreement”, enabling the intended father to be recognised as the legal father. After six weeks (the period is only seven days in Israel), the intended parents make an application for a parental order enabling the intended mother to become the child’s legal mother and terminating the parental rights of the gestational mother. However, this model does not allow monitoring in advance of artificial insemination surrogacy arrangements, where no medical intervention is needed. It offers little protection in that the gestational mother may decide to keep the baby or, conversely, the parents may choose not to take it. Hence, the interests of those involved are not necessarily safeguarded. Under the prior judicial authorisation model (South Africa: 2003 Children’s Bill; Greece), a court makes a decision on the dossier submitted by the intended parents and the gestational mother before medical treatment commences. The court examines the agreement between the parties, which must include certain safeguards for the gestational mother, the child and the intended parents. The court’s opinion determines what kind of medical treatment is allowed (artificial insemination or IVF), and legal parentage is established immediately in favour of the intended parents. This model seems to offer greater security in that, even in the case of artificial insemination surrogacy arrangements, the protagonists are obliged to undergo medical and psychological checks. 5.3 The need for a debate The issue of surrogacy arrangements provokes a variety of reactions, based in most cases on received ideas and stereotypes which skew public perceptions and make dispassionate debate difficult. It


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is often approached, too, from the perspective of the traditional family, which is manifestly inappropriate. The adoption model, while it is not entirely suited to the situation, is more appropriate. A model for surrogacy arrangements has yet to be invented, or rather, worked out in detail. Furthermore, surrogacy arrangements, in their “public” form, i.e. involving intermediaries (doctors, lawyers, etc.), are still relatively new. A handful of sensational, but now past cases (Baby Cotton, Whitehead) made people suspicious of such arrangements, but also made it possible to devise a medical, psychological and legislative framework to enable them to operate as smoothly as possible. In those countries where surrogacy arrangements have been properly regulated, they appear now to be widely accepted, both by the public and by professionalslxviii. Given the importance of the issues in personal, medical and social terms, an international debate involving a range of participants would appear to be very highly desirable.


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Annex 1: Surrogacy arrangements in Europe and worldwide

Country Legal status Remarks

Legal Illegal No legislation

Argentina + Ethics committee (case by case) Australia + Differs from one state to another Austria + Belgium + Brazil + Among family members Bulgaria + Canada + Unpaid Czech Republic + Denmark + Ecuador + El Salvador + Finland + Yes France + Germany + Since 1990 Greece + Yes Hong Kong + Hungaryq + Iran + Israel + Supervised by independent ethics

committee and health ministry Italy + Korea + Luxembourg + Netherlands + New Zealand + Ethics committee Norway + Portugal + Russia + Slovakia + Slovenia + South Africa + Ethics committee Spain + Sweden + United Kingdom + Supervised by independent ethics

committee and health ministry United States + Yes

q In Hungary, when no legislation existed, couples applied to an ethics committee for authorisation to proceed with a surrogacy arrangement; authorisation was granted in a certain number of cases. In 1997, Parliament adopted a law authorising unpaid surrogacy arrangements with effect from the year 2000. In the meantime there was a change of government, and the new law was superseded, with surrogacy arrangements becoming illegal with effect from 2000. In 2002, a social-liberal coalition reopened the debate, but has not yet proposed new legislative arrangements (personal communication from Prof. Judith Sandor of the faculty of political science at Budapest University). This case is a good illustration of the difficulty of banning surrogacy arrangements in the absence of irrefutable ethical, social and medical arguments.


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