Surrogacy

Surrogate

Anthropological studies of surrogates have shown that surrogates engage in various distancing techniques throughout the surrogate pregnancy so as to avoid becoming emotionally attached to the baby.^[1] Many surrogates intentionally try to foster the development of emotional attachment between the intended mother and the surrogate child.^[2]

Although gestational surrogates generally report being satisfied with their experience as surrogates, there are cases in which they are not.^[3] 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.^{[citation needed]}

Gestational surrogates may struggle with postpartum depression and issues with relinquishing the child to their intended parents.^[4] 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.^[5]

Child and intended parents

A systematic review^[4] of 55 studies examining the outcomes for surrogacy for surrogates 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.^[6]

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,^[7] two,^[8] and seven.^[9] 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.^[9]

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).^[22][23] 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.^[24]

Canada

"In Canada, it is a crime to pay (in cash, goods, property or services), offer to pay or advertise to pay a woman to be a surrogate mother."^[25]

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".^[26]

Australia

"Australian states and territories allow altruistic surrogacy but prohibit commercial surrogacy."^[31]

Europe

Some countries in Europe allow altruistic surrogacy (where the surrogate is not paid), but most European countries prohibit commercial surrogacy.^[13]

Surrogate

Those who view surrogacy as a social justice issue argue that it leads to the exploitation of women whose wombs are commodified to meet the reproductive desires of the more affluent.^{[33][34][35][36][37]} They argue that creating a commercial market for human bodies is inherently exploitative: "A steady supply of women's bodies is needed in order to meet the demands of rich couples who can afford to pay extravagant fees to agencies."^[38]

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.^[37] Almost all countries ban the sale of human organs (e.g., selling a spare kidney) and renting out the use of human organs and bodily processes should be prohibited for similar reasons.^[39]

Some feminists have also argued that surrogacy is an assault to a woman's dignity and right to autonomy over her body.^[35][36][37] By degrading women to purchasable "baby producers", commercial surrogacy has been accused by feminists of commodifying women's bodies in a manner akin to prostitution.^[35] Feminist Renate Klein has argued that surrogacy is a human rights violation. In her book "Surrogacy - a Human Rights Violation", Klein examines the harms done to women who become surrogates, and how the practice breaks a number of conventions on human rights.^[40] Feminist Kajsa Ekis Ekman has argued that surrogacy is akin to reproductive prostitution and baby sale. Her book "Being and Being Bought - Prostitution, Surrogacy and the Split Self" compares the two industries and how they both commodify women.^[41]

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".^[35] Surrogate contracts can impose restrictions on the surrogate that some say violate the surrogate mother's rights, such as right to freedom of movement.^[42] These contracts can allow other people to legally impose requirements on the pregnant person that some argue result in "your body, my choice".^[43]

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.^[33][34] 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.^[33][34] Other psychological issues are noted, such as the implications of gestational carriers emotionally detaching themselves from their babies in anticipation of birth departure.^[35]

Some argue that women in developing countries are particularly vulnerable to exploitation from surrogacy. 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.^{[33][34][35][37]} 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.^[33][34] 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.^[44] 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.^[45]

Some argue that commercial surrogacy strips birthmothers of their natural rights. Most countries consider the birthmother to be the legal mother unless she freely chooses to put her child up for adoption (without coercion or payment). When a woman elects to use a donor egg to become pregnant, she is not the biological mother, but is still considered the legal mother because she is the birthmother; similarly, a surrogate is still the birthmother even if she was paid to use a donor egg.^[42] Some argue that birth mothers cannot be coerced (or paid) to relinquish their custody of the child they bore (though any birthmother might need to share custody with another). 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.^[46]

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.^[47] 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 birth mother and to its biological parents if the egg or sperm is not that of the contracting parents.^[36] In addition, they claim that the child has no right to information about any siblings he or she may have in the latter instance.^[36] 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.^[48]

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.^[49] However, "…there is no "right to a child" under international law.^[42] The United Nations Report of the Special Rapporteur on the sale and sexual exploitation of children states, "A child is not a good or service that the State can guarantee or provide, but rather a rights-bearing human being" and argues that commercial surrogacy (where transfer of the child is a condition for payment) violates human rights as it is considered to be the sale of children (and humans cannot be bought or sold).^[42] UNICEF says "A legally binding contractual relationship between the surrogate mother and the intending parent(s) established pre-birth, in which the transfer of the child would be made conditional upon payment, would constitute the sale of a child…. The identity and family relations of a child cannot be for sale."^[50]

Surrogacy has raised ethical concerns regarding the number of children an individual can reasonably parent. While reproductive rights generally allow couples to have as many children as naturally possible, some argue that these rights do not necessarily extend to surrogacy or other assisted reproductive technologies.^[51] Commercial surrogacy has been associated with cases in which individuals or couples became legal parents to numerous children within a short period, prompting questions about parental motives and potential risks related to human trafficking and child welfare.^[52] For example, prior to Thailand’s ban on commercial surrogacy in 2015, a Japanese man reportedly fathered 16 surrogate children in the country in 2014. He allegedly intended to create a very large family and had plans for 10–20 surrogacies annually for the rest of his life.^[53][54]

Traditional values in Chinese society

In China, surrogacy has been argued to contradict traditional Chinese values.^[28]

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.

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.^[57] 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.^[58]

However, numerous Buddhist thinkers have expressed concerns with certain aspects of surrogacy.^[59][58] One Buddhist perspective on surrogacy arises from the Buddhist belief in reincarnation as a manifestation of karma.^[58] According to this view, gestational carrierhood circumvents the workings of karma by interfering with the natural cycle of rebirth.^[58]

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.^[60] 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.^[58] 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.^[60] This further highlights the lack of consensus on surrogacy within the Buddhist community.

Christianity

Hinduism

Surrogacy does not conflict with the Hindu religion.^[57] 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.^[64] 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:^[57]

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.^[57]

Additionally, infertility is often associated with karma in the Hindu tradition and consequently treated as a pathology to be treated.^[65] This has led to general acceptance of medical intervention for addressing infertility amongst Hindus.^[65] As such, surrogacy and other scientific methods of assisted reproduction are generally supported within the Hindu community.^[65] Nonetheless, Hindu women do not commonly use surrogacy as an option to treat infertility, despite often serving as surrogates for Western commissioning couples.^[57][65] When surrogacy is practiced by Hindus, it is more likely to be used within the family circle as opposed to involving anonymous donors.^[65]

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.^[66]

Jainism

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.^[67] 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.^[68] 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.^[68]

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.^[69][70] Rabbis who favour this stance often cite Genesis 9:1 which commands all Jews to "be fruitful and multiply".^[69] 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".^[69]

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.^[69] 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.^[69] 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.^[69] 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."^[69]

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.^[70] 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.^[70] 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.^[70] 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.^[70] An increasing number of orthodox rabbis recommend that babies born through surrogacy who were created from non-Jewish donor eggs or carried by a non-Jewish surrogate should undergo conversion for minors in order to eliminate doubt over their Jewish status ^[71]