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Surrogacy – a worldwide demand. Implementation and ethical considerations

Surrogacy is a treatment option available to couples with certain medical difficulties, in order to help them have their own genetic children, to single women with medical problems desiring pregnancy, or to homosexual men wishing to become parents. There are two forms of surrogacy. In the first (traditional surrogacy), the surrogate mother’s own egg cell is used to conceive the child. In the other (gestational surrogacy), there is no genetic relationship between the surrogate mother and the child, and the technique relies on in vitro fertilization (IVF) of the intended genetic mother’s ovum, or that of a third-party donor, with her partner’s sperm or donor sperm. IVF allows the creation of embryos from the gametes of the commissioning couple and subsequent transfer of these embryos (fresh or frozen/thawed) to the uterus of a surrogate host. The indications for treatment include absent uterus (congenital or after hysterectomy), recurrent miscarriage, repeated failure of IVF, and certain severe medical problems. The results of treatment are more than satisfactory, with up to 60% of surrogate mothers achieving live births. Surrogacy may be commercial or altruistic, depending upon whether or not the surrogate receives economic remuneration for her pregnancy.
Ethical, religious and legal problems have arisen around surrogacy; therefore, it is imperative that both the gestational carrier and the intended parent(s) be granted rigorous safeguards and protections.
In many countries around the world clear and understandable gestational surrogacy arrangements are carried out or strict legislations were introduced. This article looks at ethical considerations and the implementation of legislation by different countries around the world.
Surrogacy means that a woman becomes pregnant and gives birth to a child with the intention of giving this child to another person or couple, commonly referred to as the ‘intended’ or ‘commissioning’ parents. [1] A surrogate mother is the woman who carries and gives birth to the child, and the intended parent is the person who is going to raise the child. The definition by the European Society for Human Reproduction and Embryology (ESHRE) [1] does not state the sexuality of the intended parents. Surrogacy can take one of two main forms: gestational surrogacy (high-tech surrogacy), where the surrogate is the birth mother but not the genetic mother of the child; or traditional surrogacy (low-tech surrogacy), where the surrogate is both the birth mother and the genetic mother. Gestational surrogacy relies on in vitro fertilization (IVF) of gametes that can originate from the intended parent(s) and/or a third party (or parties) to be transferred into the surrogate uterus. The surrogate woman who will carry the pregnancy enters into an agreement that she will give the offspring to the intended parent(s). In gestational surrogacy, the woman who carries the child (the gestational carrier) has no genetic connection to the child. [2] Traditional surrogacy can take the form of a natural pregnancy, a pregnancy obtained by intra-uterine insemination, or a pregnancy accomplished by IVF. The surrogate provides the ovum, and the sperm is provided either by the intended father or by a third-party donor. The fertilized egg is the surrogate’s own, making her the genetic mother of the child that will be born.
Surrogacy may be commercial or altruistic, depending upon whether the surrogate receives economic remuneration for her pregnancy. In commercial surrogacy, the surrogate is usually recruited through an agency, reimbursed for medical costs and paid for her gestational services. With altruistic surrogacy, the surrogate is found through friends, acquaintances or advertisement. She may be reimbursed for medical costs directly related to the pregnancy and for loss of income due to the pregnancy [3].
The authors performed a detailed analysis of the existing legal frameworks regarding surrogacy in several European and non-European countries. Special emphasis is paid to the issue of surrogacy in Israel. Whenever available, references to official books or newspapers, ministerial releases and recommendations are provided, as well as to publications in the “PubMed” database.
Indications for surrogacy treatment
The main indications for surrogacy treatment are congenital absence of the uterus and absence of the uterus in women who have had a hysterectomy for different reasons but who still have functioning ovaries. Müllerian aplasia and Mayer-Rokitansky-Kuster-Hauser syndrome, both of which cause congenital absence of the uterus, are relatively rare [4]. Another indication is in the case of women who have suffered repeated abortions or undergone several IVF treatments with repeated implantation failure for no obvious reason [5]. Certain medical conditions that might be life threatening for a woman during pregnancy (e.g., heart and renal diseases), are also indications for surrogacy, once it has been established that the future mother is healthy enough to take care of a child after birth and that her life expectancy is reasonable [6]. In a recent publication, the indications for the treatment of 37 couples requiring treatment by IVF surrogacy at Bourn Hall Clinic, England, were: hysterectomy following cancer surgery (27%), congenital absence of the uterus (16%), post-partum hysterectomy (16%), repeated failure of IVF (16%), recurrent abortion (13%), hysterectomy for menorrhagia (5%), and severe medical condition (5%) [6].
Surrogacy could be appropriate for same-sex male couples or single men [7]. Gay men may choose to become parents via traditional surrogacy, conception occurring using the sperm of one of the intended fathers and the egg of the surrogate who carries the child to term [8], or via gestational surrogacy, the most common type of surrogacy in the United States [9]. The embryo is created using the sperm of one of the intended fathers and the egg of a donor and transferred to the surrogate. The surrogate who carries the pregnancy to term and gives birth has no genetic connection to the child. Uncertainties have been expressed regarding the bond created over time between gay families and the surrogate or egg donor. However, in gay father surrogacy families with young children, relationships between parents, children, surrogates, and egg donors were found to be generally positive [8] Despite the possibility of performing a surrogacy procedure for gay men, no legislation has been enacted regulating the procedure in any country [10].
Religious considerations
The first ever report of a baby being born following treatment by gestational surrogacy was from the USA [11]. However, it took more than a decade for the concept and possibility of surrogacy to spread through the world, mainly for ethical and religious reasons.
In the Christian world, the Catholic Church is strongly against all forms of assisted conception, and therefore opposed to surrogacy. The Anglican Church is more flexible in its views and has not condemned the practice of surrogacy. Surrogacy is not forbidden in the Jewish religion, for which the child belongs to the father who provided the sperm and to the woman who gave birth. The Islamic view appears to be absolute in that surrogacy is not acceptable — pregnancy should be the fruit of a legitimate marriage. If a woman did deliver, the child would be hers. Finally, while the Buddhist religion does not ban surrogacy, it takes into account family ties and moral considerations.
Concern about surrogacy agreements
Pregnancy and childbirth are deep, intimate and complex identity-related processes, which have significant physical and mental effects on the woman experiencing them. Surrogacy is a complex relationship which might be a fertile ground for harm and exploitation, and this must be recognized, especially when private organizations with financial interests are allowed to be involved. Disagreement has surrounded the practice of paid surrogacy since its beginning. Some feminist theorists were against paid surrogacy arguing that it constituted commodification of the body [12]. Others have argued that such surrogacy is permissible, but only if the woman maintains the right to choose to end the pregnancy, as well as the possibility to cancel the agreement at any time [13]. Some courts have followed this view [14]. Others have argued that commercial surrogacy should be prohibited, deeming that it conflicts with the interests of the child [15]. Defenders of more traditional family structures and methods of reproduction have claimed that the practice of surrogacy should be banned [16]. Such positions and their implementation in different countries may lead couples to seek surrogacy services abroad. Where commercial surrogacy is prohibited, or where surrogacy agreements are unenforceable, intended parents may look to an authority where such arrangements are legally permitted or where the contract will be enforced. Regardless of how these disagreements are resolved, it is evident that certain protections for both the gestational carrier and the intended parent(s) are required for any form of surrogacy to be ethically acceptable.
Legislation in different countries
In 2005, an ESHRE task force on ethics and law issued the following statements: The indications for surrogacy will be absence of the uterus regardless of etiology, serious health risks for the intended mother, or difficulties in becoming pregnant. In addition: 1. Payment for services is unacceptable; only payment of reasonable expenses and compensation for loss of income should be considered. 2. All parties involved should be counseled and screened separately by independent specialists. 3. The surrogate should be aged <35 years for traditional surrogacy and <45 years for gestational surrogacy 4. It is required that the surrogate have at least one child. 5. Only one embryo should be replaced in order to avoid multiple pregnancies and to prevent unnecessary complications to the surrogate’s and the future child’s health. In special circumstances, the replacement of a maximum of two embryos can be considered. 6. The commissioning parents should be well aware that the surrogate has the legal right to make decisions about her pregnancy against their will and against the original agreement. 7. A ‘cooling off period’ is recommended so that all parties can think through their decision. 8. Long-term follow-up studies, both of the resulting family and of the family of the gestating woman, should be conducted, especially to gain insight into the psychological impact of the arrangement on the child(ren) [1]. Today, surrogacy is not officially allowed in Austria, Bulgaria, Denmark, Finland, France, Germany, Italy, Malta, Norway, Portugal, Spain, Sweden, Lithuania, People’s Republic of China, Japan, Brazil, and Argentina. Altruistic, but not commercial, surrogacy is allowed in Belgium, Denmark, the Czech Republic, the Netherlands, the UK, Canada, and Australia [17]. An extensive examination of national legal approaches to surrogacy was performed: Brunet et al. [18] analyzed existing European Union law and the law of the European Convention of Human Rights to determine what obligations and possibilities surround national and transnational surrogacy. The study concludes that it is impossible to identify a particular legal trend across the EU, however all member states appear to agree on the need for a child to have clearly defined legal parents and civil status. At present, surrogacy is legal in Greece and in Israel (legal with state approval). Ukraine, Russia and California (USA) permit commercial surrogacy, while in many states of the USA only altruistic surrogacy is acceptabl. Discussion Infertility is a disorder that is affecting an increasing number of couples and individuals around the world, and it is recognized by World Health Organization as a disease affecting the well-being of person(s) who suffer from it. The development of modern medical technologies, together with growing understanding and awareness of the psychological impact of infertility, has led to the development of new ways of solving the problem, such as surrogacy. Surrogacy and the demand of surrogacy are processes with complex moral implications. The surrogate undergoes complicated and health-threatening medical processes, including pregnancy, IVF, and hormonal therapies. In addition, in some surrogacy agreements, the surrogate abandons components of her normal life by agreeing to strict supervision of her lifestyle during pregnancy. At the end of the procedure, she hands over the newborn to the intended parents, a practice that, under other circumstances and without proper legal regulation, would be prohibited on the grounds of constituting infant trafficking. These aspects have led various countries around the world to ban surrogacy procedures in their territory, and they have been kept very much in mind when developing the Israeli initiative and law geared at increasing awareness of surrogacy processes and ensuring they are carried out ethically. On the other hand, it has been argued that surrogacy does not need to be treated as a practice that may lead to the exploitation of surrogates (mainly of poor and deprived women ready to trade their uterus for a recompense, even without getting proper medical surveillance or rights) providing there are mechanisms in place that preserve the surrogate's free will. As more and more opinions have been voiced on these issues, countries around the world have been led to ratify guidelines that regulate the issue in various forms. In many countries, surrogacy is completely forbidden. In other countries it is allowed, but with different restrictions. Surrogacy arrangements in different countries try to deal with agreed-upon moral principles, which may be violated during the surrogacy procedure, and also to embody the effort to balance the rights of the surrogate with the rights of the parents assisted by the surrogacy arrangement. In the UK and Canada, for example, surrogacy services may not be advertised, and wages cannot be paid for them — although the law allows for coverage of expenses, without specifying amounts [44]. However, given the social pressure to amend existing surrogacy guidelines and adapt them to the requirements of the population, the UK is partway through a multiyear process of revising its law on surrogacy, both traditional and gestational [45,46]. Unlike other countries, in Israel, surrogacy is allowed and reinforced by the law (that takes into account the wellbeing of the surrogate, the commissioning parent(s) and the child to be born), as a voluntary act only. Though the mother is entitled to receive reimbursement for hospitalization, tests and other expenses associated with pregnancy and childbirth, the standard amount payable to surrogates is not fixed by law, but simply defined as any reasonable compensation. The exact amount that the surrogate receives must be written in advance in the agreement between her and the intended parents, and in addition must be approved by the approval committee of the Ministry of Health [35,36]. At the same time, efforts must be made at international level to reach a consensus on the issue of surrogacy by enacting laws or at least clear regulations on the preservation of the reproductive rights of all those in need. Conclusions Clearly, surrogacy is an issue that raises deep ethical and religious problems and considerations. Normally, a person who wants a child accepts the medical risks of pregnancy. In surrogacy arrangements it is the carrier that takes the risks. However, as a result of growing demand from couples who cannot conceive on their own, together with the technological developments of IVF, in addition to acceptance and readiness of women to take part in the process of surrogacy as surrogate mothers, the practice appears to be spreading to more and more countries around the world. However, rigorous safeguards and protections need to be in place, both for the gestational carrier and the intended parent(s). Therefore, the state where the process of surrogacy is performed has as an obligation to provide clearly defined rules to enable the existence of a fair relationship which will benefit all participants. It also has an obligation to ensure the practical implementation of these rules and to conduct a long-term follow-up of all participants in the procedure, to make sure that no party suffers long-term harm. The Israeli law on surrogacy is an excellent example of how these principles can be applied in a way that enables solution of most of the legal and ethical issues surrounding surrogacy. https://gremjournal.com/journal/02-2021/surrogacy-a-worldwide-demand-implementation-and-ethical-considerations/

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