Surrogacy

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Intended parents attend the birth of their child by a gestational surrogate. Surrogate parents attending birth.jpg
Intended parents attend the birth of their child by a gestational surrogate.

Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman agrees to childbirth on behalf of another person(s) who will become the child's parent(s) after birth. People pursue surrogacy for a variety of reasons such as infertility, dangers or undesirable factors of pregnancy, or when pregnancy is a medical impossibility.

Contents

While a surrogacy relationship or legal agreement contains the gestational carrier and the child's parent(s) after birth, the gestational carriers are usually being referred as surrogate mothers. Surrogate mothers are the woman who carries and gives birth to a baby for another person, in such process of surrogacy. [1] Surrogate mothers are usually introduced to parent(s) in need of surrogacy through third-party agencies, or other matching channels. They are usually required to participate in processes of insemination (no matter traditional or IVF), pregnancy, delivery, and newborn feeding early after birth.

In surrogacy arrangements, monetary compensation may or may not be involved. Receiving money for the arrangement is known as commercial surrogacy. [2] [3] The legality and cost of surrogacy varies widely between jurisdictions, contributing to fertility tourism, and sometimes resulting in problematic international or interstate surrogacy arrangements. For example, those living in a country where surrogacy is banned travel to a jurisdiction that permits it. In some countries, surrogacy is legal if there is no financial gain.

Where commercial surrogacy is legal, third-party agencies may assist by finding a surrogate and arranging a surrogacy contract with her. These agencies often obtain medical tests to ensure healthy gestation and delivery. They also usually facilitate legal matters concerning the intended parents and the surrogate.

Methods

Surrogacy may be either traditional or gestational, which are differentiated by the genetic origin of the egg. Gestational surrogacy tends to be more common than traditional surrogacy and is considered less legally complex. [4]

Traditional surrogacy

A traditional surrogacy (also known as partial, natural, or straight surrogacy) is one where the surrogate's egg is fertilised by the intended father's or a donor's sperm.

Insemination of the surrogate can be either through sex (natural insemination) or artificial insemination. Using the sperm of a donor results in a child who is not genetically related to the intended parent(s). If the intended father's sperm is used in the insemination, the resulting child is genetically related to both him and the surrogate. [5] [6]

Some choose to inseminate privately without the intervention of a doctor or physician. In some jurisdictions, the intended parents using donor sperm need to go through an adoption process to have legal parental rights of the resulting child. Many fertility centres that provide for surrogacy assist the parties through the legal process.

Gestational surrogacy

Gestational surrogacy (also known as host or full surrogacy [7] ) was first achieved in April 1986. [8] It takes place when an embryo created by in vitro fertilization (IVF) technology is implanted in a surrogate, sometimes called a gestational carrier. Gestational surrogacy has several forms, and in each form, the resulting child is genetically unrelated to the surrogate:

Risks

Embryo

The embryo implanted in gestational surrogacy faces the same risks as anyone using IVF would. Preimplantation risks of the embryo include unintentional epigenetic effects, influence of media which the embryo is cultured on, and undesirable consequences of invasive manipulation of the embryo. Often, multiple embryos are transferred to increase the chance of implantation, and if multiple gestations occur, both the surrogate and the embryos face higher risks of complications. [10]

Children born through singleton IVF surrogacy have been shown to have no physical or mental abnormalities compared to those children born through natural conception. However, children born through multiple gestation in gestational carriers often result in preterm labor and delivery, resulting in prematurity and physical and/or mental anomalies. [10]

Surrogate mothers

Gestational surrogates have a smaller chance of having hypertensive disorder during pregnancy compared to mothers pregnant by oocyte donation. This is possibly because gestational carriers tend to be healthier and more fertile than women who use oocyte donation. Gestational carriers also have low rates of placenta previa / placental abruptions (1.1–7.9%). [11]

In most countries, such as China, there exists a huge gap in the legal framework between the legislation and regulation for surrogacy. Due to insufficient authority supervision, surrogacy and the safety of surrogate mothers lack of professional support or reliable operation, the medical conditions cannot be achieved either. All these precarious factors increase the safety risks of artificial surgeries such as egg retrieval and insemination. Moreover, the underground contracts can inflict serious physiological harm on surrogate mothers. Surrogacy agencies ignore surrogate mothers' health risks and deaths: enforced foetal sex selection through forced abortions are very common, [12] and multiple implantations and foetal reduction procedures may also be repeated on the same surrogate mother, causing health hazards such as miscarriage, infertility, and even death.

Outcomes

Among gestational surrogacy arrangements, between 19–33% of gestational surrogates will successfully become pregnant from an embryo transfer. Of these cases, 30–70% will successfully allow the intended parent(s) to become parent(s) of the resulting child. [13]

For surrogate pregnancies where only one child is born, the preterm birth rate in surrogacy is marginally lower than babies born from standard IVF (11.5% vs 14%). Babies born from surrogacy also have similar average gestational age as infants born through in vitro fertilization and oocyte donation; approximately weeks. Preterm birth rate was higher for surrogate twin pregnancies compared to single births. There are fewer babies with low birth weight when born through surrogacy compared to those born through in vitro fertilization but both methods have similar rates of birth defects. [11]

Indications for surrogacy

Opting for surrogacy is a choice for single men desiring to raise a child from infancy, same sex couples unable or unwilling for pregnancy, or women unable or unwilling to carry children on their own. Surrogacy is chosen by women for a number of medical reasons, such as abnormal or absent uterus, either congenitally (also known as Mayer–Rokitansky–Kuster–Hauser syndrome) [14] or post-hysterectomy. [15] Women may have a hysterectomy due to complications in childbirth such as heavy bleeding or a ruptured uterus. Medical diseases such as cervical cancer or endometrial cancer can also lead to surgical removal of the uterus. [15] Past implantation failures, history of multiple miscarriages, or concurrent severe heart or renal conditions that can make pregnancy harmful may also prompt women to consider surrogacy. [16] The biological impossibility of single men and same-sex couples having a baby also may indicate surrogacy as an option. [16]

Gestational surrogacy

In gestational surrogacy, the child is not biologically related to the surrogate, who is often referred to as a gestational carrier. Instead, the embryo is created via in vitro fertilization (IVF), using the eggs and sperm of the intended parents or donors, and is then transferred to the surrogate. [17]

According to recommendations made by the European Society of Human Reproduction and Embryology and American Society for Reproductive Medicine, a gestational carrier is preferably between the ages of 21 and 45, has had one full-term, uncomplicated pregnancy where she successfully had at least one child, and has had no more than five deliveries or three Caesarean sections. [13]  

The International Federation of Gynaecology and Obstetrics recommends that the surrogate's autonomy should be respected throughout the pregnancy even if her wishes conflict with what the intended parents want. [18]

The most commonly reported motivation given by gestational surrogates is an altruistic desire to help a childless couple. [13] Other less commonly given reasons include enjoying the experience of pregnancy, and financial compensation. [19]

History

Having another woman bear a child for a couple to raise, usually with the male half of the couple as the genetic father, has been referenced since the ancient times. Babylonian law and custom allowed this practice, and a woman unable to give birth could use the practice to avoid a divorce, which would otherwise be inevitable. [20] [21]

Many developments in medicine, social customs, and legal proceedings around the world paved the way for modern surrogacy: [22]

Psychological concerns

Surrogate

Anthropological studies of surrogates have shown that surrogates engage in various distancing techniques throughout the surrogate pregnancy so as to ensure that they do not become emotionally attached to the baby. [28] [29] [30] Many surrogates intentionally try to foster the development of emotional attachment between the intended mother and the surrogate child. [31] Some surrogates describe feeling empowered by the experience. [29] [32]

Although gestational surrogates generally report being satisfied with their experience as surrogates, there are cases in which they are not. [33] Unmet expectations are associated with dissatisfaction. Some women did not feel a certain level of closeness with the couple and others did not feel respected by the couple. Some gestational surrogates report emotional distress during the process of surrogacy. There may be a lack of access to therapy and emotional support through the surrogate process.

Gestational surrogates may struggle with postpartum depression and issues with relinquishing the child to their intended parents. [34] Immediate postpartum depression has been observed in gestational surrogates at a rate of 0-20%. Some surrogates report negative feelings with relinquishing rights to the child immediately after birth, but most negative feelings resolve after some time. [35]

Child and parents

A systematic review [34] of 55 studies examining the outcomes for surrogacy for gestational carriers and resulting families showed that there were no major psychological differences in children up to the age of 10 years old that were born from surrogacy compared to those children born from other assisted reproductive technology or those children conceived naturally.

Gay men who have become fathers using surrogacy have reported similar experiences to those of other couples who have used surrogacy, including their relationship with both their child and their surrogate. [36]

A study has followed a cohort of 32 surrogacy, 32 egg donation, and 54 natural conception families through to age seven, reporting the impact of surrogacy on the families and children at ages one, [37] two, [38] and seven. [39] At age one, parents through surrogacy showed greater psychological well-being and adaptation to parenthood than those who conceived naturally; there were no differences in infant temperament. At age two, parents through surrogacy showed more positive mother–child relationships and less parenting stress on the part of fathers than their natural conception counterparts; there were no differences in child development between these two groups. At age seven, the surrogacy and egg donation families showed less positive mother–child interaction than the natural conception families, but there were no differences in maternal positive or negative attitudes or child adjustment. The researchers concluded that the surrogacy families continued to function well.

The legality of surrogacy varies around the world. Many countries do not have laws which specifically deal with surrogacy. Some countries ban surrogacy outright, while others ban commercial surrogacy but allow altruistic surrogacy (in which the surrogate is not financially compensated). Some countries allow commercial surrogacy, with few restrictions. Some jurisdictions extend a ban on surrogacy to international surrogacy. In some jurisdictions rules applicable to adoptions apply while others do not regulate the practice.

The US, Ukraine, Russia and Georgia have the most liberal laws in the world, allowing commercial surrogacy, including for foreigners. [40] Several Asian countries used to have liberal laws, but the practice has since been restricted. In 2013, Thailand banned commercial surrogacy, and restricted altruistic surrogacy to Thai couples. [41] In 2016, Cambodia also banned commercial surrogacy. [41] Nepal, Mexico, and India have also recently banned foreign commercial surrogacy. [42] Surrogacy is legal and common in Iran, and monetary remuneration is practiced and allowed by religious authorities. [43] [44]

Laws dealing with surrogacy must deal with:

Although laws differ widely from one jurisdiction to another, some generalizations are possible: [45]

The historical legal assumption has been that the woman giving birth to a child is that child's legal mother, and the only way for another woman to be recognized as the mother is through adoption (usually requiring the birth mother's formal abandonment of parental rights).

Even in jurisdictions that do not recognize surrogacy arrangements, if the potential adoptive parents and the birth mother proceed without any intervention from the government and do not change their mind along the way, they will likely be able to achieve the effects of surrogacy by having the gestational carrier give birth and then give the child up for private adoption to the intended parents.

If the jurisdiction specifically bans surrogacy, however, and authorities find out about the arrangement, there may be financial and legal consequences for the parties involved. One jurisdiction (Quebec) prevented the genetic mother's adoption of the child even though that left the child with no legal mother. [46]

Some jurisdictions specifically prohibit only commercial and not altruistic surrogacy. Even jurisdictions that do not prohibit surrogacy may rule that surrogacy contracts (commercial, altruistic, or both) are void. If the contract is either prohibited or void, then there is no recourse if one party to the agreement has a change of heart: if a surrogate changes her mind and decides to keep the child, the intended mother has no claim to the child even if it is her genetic offspring, and the couple cannot get back any money they may have paid the surrogate; if the intended parents change their mind and do not want the child after all, the surrogate cannot get any money to make up for the expenses, or any promised payment, and she will be left with legal custody of the child.

Jurisdictions that permit surrogacy sometimes offer a way for the intended mother, especially if she is also the genetic mother, to be recognized as the legal mother without going through the process of abandonment and adoption. Often this is via a birth order [47] in which a court rules on the legal parentage of a child. These orders usually require the consent of all parties involved, sometimes even including the husband of a married gestational surrogate. Most jurisdictions provide for only a post-birth order, often out of an unwillingness to force the gestational carrier to give up parental rights if she changes her mind after the birth.

A few jurisdictions do provide for pre-birth orders, generally only in cases when the gestational carrier is not genetically related to the expected child. Some jurisdictions impose other requirements in order to issue birth orders: for example, that the intended parents be heterosexual and married to one another. Jurisdictions that provide for pre-birth orders are also more likely to provide for some kind of enforcement of surrogacy contracts.

Citizenship

The citizenship and legal status of the children resulting from surrogacy arrangements can be problematic. The Hague Conference Permanent Bureau identified the question of citizenship of these children as a "pressing problem" in the Permanent Bureau 2014 Study (Hague Conference Permanent Bureau, 2014a: 84–94). [48] [49] According to U.S. Department of State, Bureau of Consular Affairs, for a child born abroad to be a U.S. citizen one or both of the child's genetic parents must be a U.S. citizen. In other words, the only way for a foreign born surrogate child to acquire U.S. citizenship automatically at birth is if they are the biological child of a U.S. citizen. Furthermore, in some countries, the child will not be a citizen of the country in which they are born because the gestational carrier is not legally the parent of said child. This could result in a child being born without citizenship. [50]

East Asia

In South Korea, Hong Kong, Malaysia, Thailand, and India, surrogacies are all regulated “through national laws that expressly ban it or explicitly set the parameters for its legality”. [51]

China

Particularly in China, surrogacy operates within a legally gray area. Scholars mostly claim that surrogacy incites social instability both for the Chinese Government and the public, such as civil disputes, gender disproportion, crime, and the spread of disease. [52] However, no law legislation or enforcement has been published against surrogacy, whether it is a surrogate mother or a connecting third agency, despite the state government's attitude to ban such practice. [53]

Any medical organization involved in surrogacy will be considered as law violation, including any institution that organizes, implements, or facilitates egg retrieval and sale of women. Statistics found more than 400 surrogacy agencies facilitate the birth of more than 10,000 surrogate children every year on average — operating underground with legal prohibitions. [12]

Due to such blurry legal issues, surrogate mothers have become an underprivileged group facing the oppression of women's reproductive rights and the lack of formal legal restrictions. Many of the conditions they should have, such as emotional caring and social resources, are absent, as research claiming that surrogacy contracts usually blindly meet client needs while ignoring the health and well-being of the surrogate mothers. [12] They are marginalized by society and lack the companionship of their partners and legitimate medical health checkups during the nearly one year of pregnancy.

Ethical issues

Numerous ethical questions have been raised with regards to surrogacy. They generally stem from concerns relating to social justice, women's rights, child welfare, bioethics, [54] and societal traditional values.

Gestational carrier

Those who view surrogacy as a social justice issue argue that it leads to the exploitation of women in developing countries whose wombs are commodified to meet the reproductive needs of the more affluent. [55] [56] [57] [58] [59] While opponents of this stance argue that surrogacy provides a much-needed source of revenue for women facing poverty in developing countries, others purport that the lack of legislation in such countries often leads to much of the profit accruing to middlemen and commercial agencies rather than the gestational carriers themselves. [55] [56] It has been argued that under laws of countries where surrogacy falls under the umbrella of adoption, commercial surrogacy can be considered problematic as payment for adoption is unethical, but not paying a gestational carrier for her service is a form of exploitation. [60] Both opponents and supporters of surrogacy have agreed that implementing international laws on surrogacy can limit the social justice issues that gestational carriers face in transnational surrogacy. [61]

Other human rights activists express concern over the conditions under which gestational carriers are kept by surrogacy clinics which exercise much power and control over the process of surrogate pregnancy. [55] [56] Isolated from friends and family and required to live in separate surrogacy hostels on the pretext of ensuring consistent prenatal care, it is argued that gestational carriers may face psychological challenges that cannot be offset by the (limited) economic benefits of surrogacy. [55] [56] Other psychological issues are noted, such as the implications of gestational carriers emotionally detaching themselves from their babies in anticipation of birth departure. [57]

The relevance of a woman's consent in judging the ethical acceptability of surrogacy is another point of controversy within human rights circles. While some hold that any consensual process is not a human rights violation, other human rights activists argue that human rights are not just about survival but about human dignity and respect. [59] Thus, decisions cannot be defined as involving agency if they are driven by coercion, violence, or extreme poverty, which is often the case with women in developing countries who pursue surrogacy due to economic need or aggressive persuasion from their husbands. [55] [56] [57] [59] On the other end of the spectrum, it has been argued that bans on surrogacy are violations of human rights under the existing laws of the Inter-American Court of Human Rights reproductive rights landmark. [62]

Some feminists have also argued that surrogacy is an assault to a woman's dignity and right to autonomy over her body. [57] [58] [59] By degrading impoverished women to the mere status of "baby producers", commercial surrogacy has been accused by feminists of commodifying women's bodies in a manner akin to prostitution. [57] Some feminists also express concerns over links between surrogacy and patriarchal expressions of domination as numerous reports have been cited of women in developing countries coerced into commercial surrogacy by their husbands wanting to "earn money off of their wives' bodies". [57]

Supporters of surrogacy have argued to mandate education of gestational carriers regarding their rights and risks through the process in order to both rectify the ethical issues that arise and to enhance their autonomy. [63]

Child

Those concerned with the rights of the child in the context of surrogacy reference issues related to identity and parenthood, abandonment and abuse, and child trafficking.

It is argued that in commercial surrogacy, the rights of the child are often neglected as the baby becomes a mere commodity within an economic transaction of a good and a service. [64] Such opponents of surrogacy argue that transferring the duties of parenthood from the birthing mother to a contracting couple denies the child any claim to its "gestational carrier" and to its biological parents if the egg and/or sperm is/are not that of the contracting parents. [58] In addition, they claim that the child has no right to information about any siblings he or she may have in the latter instance. [58] The relevance of disclosing the use of surrogacy as an assisted reproductive technique to the child has also been argued to be important for both health risks and the rights of the child. [65]

Traditional values in Chinese society

In China, surrogacy has been argued to contradict traditional Chinese values. [52]

Traditional Chinese values focus on blood ties and family ties. The physical connection between parents and children and the process by which parents give birth to children are considered virtuous ("生恩 shēng'ēn"). There is also an ancient Chinese saying that believes that "the body, hair, and skin come from the parents who gave birth to one", and blood relatives should be respected, and one should not harm oneself at will ("身体发肤受之父母 shēntǐ fà fū shòu zhī fùmǔ"). When Chinese people regard blood relations as an important pathway to demonstrate filial piety and family intimacy, these traditional concepts are rooted in the cognitive norm of society. Such emphasis on biological parents and blood relations undoubtedly resulted in conflicts with the practice of surrogacy, which regards childbirth as only a physiological process.

Correspondingly, this value of kinship relations strongly affects the social status of surrogate mothers. They are easily considered "heartless" or "don't care about their own children" in Chinese society because they are only responsible for the birth process and hand over the children to others and do not participate in the upbringing process. However, there are also opinions that this separation from the children is not voluntary for surrogate mothers, but is forced by third-party agencies or restricted by unfair contracts. They can only give up the right to raise their children and send them away despite suffering great psychological and emotional trauma.

Financial aspects

According to the Assisted Human Reproduction Act adopted in 2004, it is prohibited in Canada to compensate a female for acting as a surrogate mother or to advertise the payment of such compensation. [66] However, on October 1, 2016, Health Canada announced its intention to update and strengthen the Assisted Human Reproduction Act to regulate the financial aspects of contracts between intended parents and surrogate mothers. [66] According to research, surrogate mothers are mostly motivated by their low socioeconomic status or family debt; [12] they are more likely to be forced into surrogacy due to financial pressures. In 2020, Section 12 of the Assisted Human Reproduction Act provides for the reimbursement of expenses and monetary compensation to the surrogate mother to alleviate the financial burden associated with surrogacy. [66] According to this proposed regulation, the reimbursement of eligible expenses is not obligatory. [66] Aiming at emphasizing the voluntary nature of the gesture. The proposed regulation provides a non-exhaustive list of different categories of eligible expenses, such as parking fees, travel expenses, caregiver expenses, meals, psychological consultations, etc. [66] Additionally, the surrogate mother can be reimbursed for any lost wages during pregnancy if she obtains written confirmation from a qualified physician that the work posed a risk to the pregnancy. [66]

Religious issues

Different religions take different approaches to surrogacy, often related to their stances on assisted reproductive technology in general.

Buddhism

Buddhist thought is inconclusive on the matter of surrogacy. The prominent belief is that Buddhism totally accepts surrogacy since there are no Buddhist teachings suggesting that infertility treatments or surrogacy are immoral. [67] This stance is further supported by the common conception that serving as a gestational carrier is an expression of compassion and therefore automatically aligns with Buddhist values. [68]

However, numerous Buddhist thinkers have expressed concerns with certain aspects of surrogacy. [69] [68] One Buddhist perspective on surrogacy arises from the Buddhist belief in reincarnation as a manifestation of karma. [68] According to this view, gestational carrierhood circumvents the workings of karma by interfering with the natural cycle of rebirth. [68]

Others reference the Buddha directly who purportedly taught that trade in sentient beings, including human beings, is not a righteous practice as it almost always involves exploitation that causes suffering. [70] Susumu Shimazono, professor of Religious Studies at the University of Tokyo, contends in the magazine Dharma World that surrogacy places the childbearing surrogate in a position of subservience, in which her body becomes a "tool" for another. [68] Simultaneously, other Buddhist thinkers argue that as long as the primary purpose of being a gestational carrier is out of compassion instead of profit, it is not exploitative and is therefore morally permissible. [70] This further highlights the lack of consensus on surrogacy within the Buddhist community.

Christianity

Catholicism

The Catholic Church is opposed to surrogacy, which it views as immoral and incompatible with Biblical texts surrounding topics of birth, marriage, and life.[ citation needed ] Paragraph 2376 of the Catechism of the Catholic Church states that: "Techniques that entail the dissociation of husband and wife, by the intrusion of a person other than the couple (donation of sperm or ovum, surrogate uterus), are gravely immoral." [71] Many proponents of this stance express concern that the sanctity of marriage may be compromised by the insertion of a third party into the marriage contract. [72] Additionally, the practice of in vitro fertilisation involved in gestational surrogacy is generally viewed as morally impermissible due to its removal of human conception from the act of sexual intercourse. [72] Catholics also condemn in vitro fertilisation due to the destruction of embryos that accompanies the frequent practice of discarding, freezing, or donating non-implanted eggs to stem cell research. [72] As such, the Catholic Church deems all practices involving in vitro fertilisation, including gestational surrogacy, as morally problematic.[ citation needed ]

Hinduism

Surrogacy does not conflict with the Hindu religion. [67] Surrogacy and other scientific methods of assisted reproduction are generally supported within the Hindu community. While Hindu scholars have not debated the issue extensively, T. C. Anand Kumar, an Indian reproductive biologist, argues that there is no conflict between Hinduism and assisted reproduction. [73] Others have supported this stance with reference to Hindu faith, including a story in the Bhagavata Purana which suggests the practice of gestational carrier-hood: [67]

Kamsa, the wicked king of Mathura, had imprisoned his sister Devaki and her husband Vasudeva because oracles had informed him that her child would be his killer. Every time she delivered a child, he smashed its head on the floor. He killed six children. When the seventh child was conceived, the gods intervened. They summoned the goddess Yogamaya and had her transfer the fetus from the womb of Devaki to the womb of Rohini (Vasudeva's other wife who lived with her sister Yashoda across the river Yamuna, in the village of cowherds at Gokulam). Thus the child conceived in one womb was incubated in and delivered through another womb. [67]

Additionally, infertility is often associated with karma in the Hindu tradition and consequently treated as a pathology to be treated. [74] This has led to general acceptance of medical intervention for addressing infertility amongst Hindus. [74]  As such, surrogacy and other scientific methods of assisted reproduction are generally supported within the Hindu community. [74] Nonetheless, Hindu women do not commonly use surrogacy as an option to treat infertility, despite often serving as surrogates for Western commissioning couples. [67] [74] When surrogacy is practiced by Hindus, it is more likely to be used within the family circle as opposed to involving anonymous donors. [74]

Islam

For Muslims, the Qur'anic injunction that "their mothers are only those who conceived them and gave birth to them (waladna hum)" denies the distinction between genetic and gestational mothers, hence complicating notions of lineage within the context of surrogacy, which are central to the Muslim faith. [75]

Jainism

Harinegameshin Transfers Mahavira's Embryo, from a Kalpasutra manuscript, c. 1300-1350, Philadelphia Museum of Art HarinegameshinTransfersEmbryoKalpasutra1300.jpg
Harinegameshin Transfers Mahavira's Embryo, from a Kalpasutra manuscript, c. 1300–1350, Philadelphia Museum of Art

Jain scholars have not debated the issue of surrogacy extensively. Nonetheless, the practice of surrogacy is referenced in the Śvētāmbara tradition of Jainism according to which the embryo of Lord Mahavira was transferred from a Brahmin woman Devananada to the womb of Trishala, the queen of Kshatriya ruler Siddharth, by a divinity named Harinegameshin. [76] This account is not present in Digambara Jain texts, however.

Other sources state that surrogacy is not objectionable in the Jain view as it is seen as a physical operation akin to any other medical treatment used to treat a bodily deficiency. [77] However, some religious concerns related to surrogacy have been raised within the Jain community including the loss of non-implanted embryos, destruction of traditional marriage relationships, and adulterous implications of gestational surrogacy. [77]

Judaism

In general, there is a lack of consensus within the Jewish community on the matter of surrogacy. Jewish scholars and rabbis have long debated this topic, expressing conflicting views on both sides of the debate.

Those supportive of surrogacy within the Jewish religion generally view it as a morally permissible way for Jewish women who cannot conceive to fulfill their religious obligations of procreation. [78] [79] Rabbis who favour this stance often cite Genesis 9:1 which commands all Jews to "be fruitful and multiply". [78] In 1988, the Committee on Jewish Law and Standards associated with the Conservative Jewish movement issued formal approval for surrogacy, concluding that "the mitzvah of parenthood is so great that ovum surrogacy is permissible". [78]

Jewish scholars and rabbis which hold an anti-surrogacy stance often see it as a form of modern slavery wherein women's bodies are exploited and children are commodified. [78] As Jews possess the religious obligation to "actively engage in the redemption of those who are enslaved", practices seen as involving human exploitation are morally condemned. [78] This thinking aligns with concerns brought forth by other groups regarding the relation between surrogacy practices and forms of human trafficking in certain countries with large fertility tourism industries. Several Jewish scholars and rabbis also cite ethical concerns surrounding the "broken relationship" between the child and its surrogate birth mother. [78] Rabbi Immanuel Jacovits, chief rabbi of the United Hebrew Congregation from 1976 to 1991, reported in his 1975 publication Jewish Medical Ethics that "to use another person as an incubator and then take from her the child that she carried and delivered for a fee is a revolting degradation of maternity and an affront to human dignity." [78]

Another point of contention surrounding surrogacy within the Jewish community is the issue of defining motherhood. There are generally three conflicting views on this topic: 1) the ovum donor is the mother, 2) the gestational carrier is the mother, and 3) the child has two mothers—both the ovum donor and the gestational carrier. [79] While most contend that parenthood is determined by the woman giving birth, a minority opt to consider the genetic parents the legal parents, citing the well-known passage in Sanhedrin 91b of the Talmud which states that life begins at conception. [79] Also controversial is the issue of defining Judaism in the context of surrogacy. Jewish Law states that if a Jewish woman is the surrogate, then the child is Jewish. [79] However, this often raises issues when the child is raised by a non-Jewish family and approaches for addressing this issue are also widely debated within the Jewish community. [79]

Fertility tourism

Some countries, such as the United States, Canada, Greece, Georgia and Mexico are popular surrogacy destinations for foreign intended parents. [80] Ukraine, Belarus and Russia were also destinations before the Russian invasion of Ukraine. Eligibility, processes and costs differ from country to country. Fertility tourism for surrogacy is driven by legal restrictions in the home country or the incentive of lower prices abroad. Previously popular destinations, India, Nepal and Thailand have all recently implemented bans on commercial surrogacy for non-residents. [81] China is also a famous destination, even though surrogacy is legally banned. [2]

See also

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Assisted reproductive technology (ART) includes medical procedures used primarily to address infertility. This subject involves procedures such as in vitro fertilization (IVF), intracytoplasmic sperm injection (ICSI), cryopreservation of gametes or embryos, and/or the use of fertility medication. When used to address infertility, ART may also be referred to as fertility treatment. ART mainly belongs to the field of reproductive endocrinology and infertility. Some forms of ART may be used with regard to fertile couples for genetic purpose. ART may also be used in surrogacy arrangements, although not all surrogacy arrangements involve ART. The existence of sterility will not always require ART to be the first option to consider, as there are occasions when its cause is a mild disorder that can be solved with more conventional treatments or with behaviors based on promoting health and reproductive habits.

<span class="mw-page-title-main">Embryo transfer</span> Method of assisted reproduction

Embryo transfer refers to a step in the process of assisted reproduction in which embryos are placed into the uterus of a female with the intent to establish a pregnancy. This technique - which is often used in connection with in vitro fertilization (IVF) - may be used in humans or in other animals, in which situations and goals may vary.

Third-party reproduction or donor-assisted reproduction is any human reproduction in which DNA or gestation is provided by a third party or donor other than the one or two parents who will raise the resulting child. This goes beyond the traditional father–mother model, and the third party's involvement is limited to the reproductive process and does not extend into the raising of the child. Third-party reproduction is used by couples unable to reproduce by traditional means, by same-sex couples, and by men and women without a partner. Where donor gametes are provided by a donor, the donor will be a biological parent of the resulting child, but in third party reproduction, he or she will not be the caring parent.

Egg donation is the process by which a woman donates eggs to enable another woman to conceive as part of an assisted reproduction treatment or for biomedical research. For assisted reproduction purposes, egg donation typically involves in vitro fertilization technology, with the eggs being fertilized in the laboratory; more rarely, unfertilized eggs may be frozen and stored for later use. Egg donation is a third-party reproduction as part of assisted reproductive technology.

<span class="mw-page-title-main">Human reproduction</span> Procreative biological processes of humanity

Human reproduction is sexual reproduction that results in human fertilization to produce a human offspring. It typically involves sexual intercourse between a sexually mature human male and female. During sexual intercourse, the interaction between the male and female reproductive systems results in fertilization of the ovum by the sperm to form a zygote. While normal cells contain 46 chromosomes, gamete cells only contain 23 single chromosomes, and it is when these two cells merge into one zygote cell that genetic recombination occurs and the new zygote contains 23 chromosomes from each parent, giving it 46 chromosomes. The zygote then undergoes a defined development process that is known as human embryogenesis, and this starts the typical 9-month gestation period that is followed by childbirth. The fertilization of the ovum may be achieved by artificial insemination methods, which do not involve sexual intercourse. Assisted reproductive technology also exists.

The main family law of Japan is Part IV of Civil Code. The Family Register Act contains provisions relating to the family register and notifications to the public office.

Fertility tourism is the practice of traveling to another country or jurisdiction for fertility treatment, and may be regarded as a form of medical tourism. A person who can become pregnant is considered to have fertility issues if they are unable to have a clinical pregnancy after 12 months of unprotected intercourse. Infertility, or the inability to get pregnant, affects about 8-12% of couples looking to conceive or 186 million people globally. In some places, rates of infertility surpass the global average and can go up to 30% depending on the country. Areas with lack of resources, such as assisted reproductive technologies (ARTs), tend to correlate with the highest rates of infertility.

Sperm donation is the provision by a man of his sperm with the intention that it be used in the artificial insemination or other "fertility treatment" of one or more women who are not his sexual partners in order that they may become pregnant by him. Where pregnancies go to full term, the sperm donor will be the biological father of every baby born from his donations. The man is known as a sperm donor and the sperm he provides is known as "donor sperm" because the intention is that the man will give up all legal rights to any child produced from his sperm, and will not be the legal father. Sperm donation may also be known as "semen donation".

Religious response to assisted reproductive technology deals with the new challenges for traditional social and religious communities raised by modern assisted reproductive technology. Because many religious communities have strong opinions and religious legislation regarding marriage, sex and reproduction, modern fertility technology has forced religions to respond.

<i>A.G.R. v. D.R.H</i>

A.G.R. v. D.R.H & S.H. is a ruling by the Superior Court of New Jersey, Hudson County Vicinage, and is the first precedent regarding gestational surrogacy in New Jersey. The ruling was handed down by Judge Francis Schultz on December 23, 2009.

Cryopreservation of embryos is the process of preserving an embryo at sub-zero temperatures, generally at an embryogenesis stage corresponding to pre-implantation, that is, from fertilisation to the blastocyst stage.

Partner-assisted reproduction, reception of oocytes from partner (ROPA), reciprocal IVF,shared motherhood, partner IVF or co-IVF is a method of family building that is used by couples who both possess female reproductive organs. The method uses in vitro fertilization (IVF), a method that means eggs are removed from the ovaries, fertilized in a laboratory, and then one or more of the resulting embryos are placed in the uterus to hopefully create a pregnancy. Reciprocal IVF differs from standard IVF in that two partners are involved: the eggs are taken from one partner, and the other partner carries the pregnancy. In this way, the process is mechanically identical to IVF with egg donation. Reciprocal IVF offers the highest chance for pregnancy and a lower chance of a multiple births.

<span class="mw-page-title-main">Surrogacy laws by country</span>

The legal aspects of surrogacy in any particular jurisdiction tend to hinge on a few central questions:

Surrogacy is legal in New Zealand if it is performed altruistically, where the surrogate donates her services selflessly, without any compensation beyond the coverage of expenses. Commercial surrogacy, where the surrogate is paid in addition to the coverage of expenses, is not legal. There is a lack of specific legislation and regulations dealing with surrogacy, though the recent increase in surrogacy cases has led to a number of amendments. New Zealand is party to the United Nations Convention on the Rights of the Child, and ratified it in April 1993. The primary principle of this convention is that the best interests of the child are paramount, which must then encompass all surrogacy agreements and regulations. The lack of clear surrogacy legislation in New Zealand has led to many couples engaging in reproductive tourism in order to ensure the surrogacy is successful. This has the potential to significantly impact the human rights of all of the parties involved.

Surrogacy is legal in Canada, provided that it is an altruistic (unpaid) act. Based on the 1993 report by the Royal Commission on New Reproductive Technologies, as well as input from experts and individuals directly affected by assisted human reproduction technology, the federal government of Canada passed the Assisted Human Reproduction Act in 2004. The Act criminalizes commercial (paid) surrogacy. The validity of surrogacy contracts and the process for establishing the child's parentage is governed by provincial and territorial laws.

<span class="mw-page-title-main">Use of assisted reproductive technology by LGBT people</span>

Lesbian, gay, bisexual, and transgender people people wishing to have children may use assisted reproductive technology. In recent decades, developmental biologists have been researching and developing techniques to facilitate same-sex reproduction.

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