Surrogacy: The Legal and Ethical Issues

The ever-raising pervasiveness of sterility world has lead to the advancement of Assisted Reproductive Technique (ART) treatments. Herein, the surrogacy comes as an alternative where the sterile couples can have the baby through this process. Surrogacy is an agreement where a substitute mother bears and delivers a baby for commissioning couple. Gestational surrogacy is the most common type of surrogacy arrangement which is also considered legal by many state laws. In gestational surrogacy, an embryo, which is fertilized by In-Vitro Fertilization (IVF), is implanted into the uterus of a substitute mother who carries pregnancy for nine months and delivers a healthy baby. In traditional surrogacy, which is not popular and also considered illegal by many state laws, the substitute mother is impregnated by the sperms of commissioning father by Artificial Insemination (AI) therapy. In traditional surrogacy process, the substitute mother is genetically connected to the new-born. Therefore, this type of surrogacy is banned by most of the state laws.

At a glance, the surrogacy process seems to be very attractive alternative for poor women as they get good money by this process. The commissioning couples get their long desired biologically connected baby, but the real fact divulges the bitter truth. In most of countries like England, Germany, Sweden, Norway and Italy, surrogacy and surrogate agreements are considered illegal. These countries do not allow both types of surrogacy. Therefore, infertile couples from these countries move to India, United States of America, Ukraine and California where the surrogacy is considered legal. However, it is painful to know that none of these countries have proper legislation for surrogacy. Due to lack of proper legislation and transparency in the system, both commissioning couples and surrogate mother are exploited and profit is earned by the middlemen. There may be chances of getting involved in legal problems as none of these countries have regulations and transparency in laws governing surrogacy.

When the commissioning couples visit other countries to realize their dreams of parenthood by having a biological baby, they need to fight a long legal battle by crossing the language and cultural barrier to get their baby. Even if everything goes well with the commissioning couples, they need to stay at least two to three months to complete the required formalities after the birth of a new-born. While the intended couples face all these difficulties, surrogate mothers have another set of problems. The things with the surrogate mothers are even worse and unethical. If the substitutes are selected from rural background, the middlemen exploit them constantly. Sometimes, these ladies even don’t get complete compensation paid by the intended parents.

In conclusion, we can say that, if commissioning couple desire to have their own biological child, they need to contact the best agency where they will be guided legally and ethically, where the agencies conduct psychological screening and legal counselling for surrogate mothers (mandatory in the US). If you succeed in finding the best agency, then you can realize your dreams of parenthood without any legal and ethical difficulties.

The Legal, Ethical and Moral Problems Associated With Surrogacy

The legal, ethical and moral problems associated with surrogacy

A surrogate motherhood entails carrying and delivering a child (premature delivery is also included) under the contract concluded between a substitute mother and commissioning couples. Normally, a proxy is impregnated by implanting the zygote into her uterus. This zygote is formed in a laboratory using commissioning couple gametes or donor gametes. As the rate of infertility is rising every year, surrogacy is becoming more popular. Couples who are not in a financial status to invest much on this process are traveling to different countries where they can expect the same process at less cost. Surrogacy tourism is becoming more popular in Asian countries such as India. However, the increasing popularity of surrogacy has given rise to many legal, political, moral and ethical problems.

In this article, we are focusing on the rights of married infertile couples who made a contract with the surrogate mother to have a biological baby; ensuring the rights of a baby born to a substitute and the different factors included in a contract made with a substitute. The moral and ethical issues associated with the surrogacy are also considered. Doctors observe the problems associated with the surrogate motherhood in a sensible point of view, adhere to the up-to-date ART technologies and always encourage substitutes to move forward. However, the solicitors also don’t observe any particular ethical problems. According to the lawyers, every person has the rights to use their body and mind to commit action in accordance with his consciousness and will.

Commissioning couples seeking surrogacy to have a biological baby should face some legal problem in spite of considering this process as legal. As there is no law governing surrogacy in many states, the commissioning couples often face many obstacles while owning their biological baby. In some cases, when the substitute rejects to hand over the baby, the intended parents often face trouble. According to some state laws, the substitute has the right to keep the baby after delivery, as a result, the infertile married couples who gave their consent for an embryo transfer and made contract with the surrogate to carry their child, will be dishonored. Undoubtedly, at this circumstance either the deceived couples ask reimbursement or their baby. However, women who wish to become surrogate mother often face financial hardship; it will become hard for them dishonor the contract. Such haziness makes it impossible for the proxies to dishonor the laws.

Most of the state laws prefer to show a legal essence in a contract made between commissioning couple and surrogate mother. Some solicitors also argue that ensuring rights of children born to substitutes is also important. In some states, the experienced solicitors are working constantly to establish a strong surrogacy laws in order to give legal rights to the infertile married couples, surrogate mother who bear child upon agreement made with the intended parents and the rights of children born to the surrogate mothers. Once the law becomes strong and controversies related to the social and religious ethics will become normal, both parties can enjoy their journey without any complications and obstacles.

The Irish Human Rights Commission

The Good Friday Agreement 1998 conferred an obligation on both the British and Irish Governments to establish a Human Rights Commission in each jurisdiction, This took a couple of years to implement.

Although the UK Human Rights Act was passed in 1998 it did not come into effect until 2nd October 2000 and the ECHR was incorporated into Irish law on 1st January 2004 (ref European Convention on Human Rights Act 2003).

It is interesting to note that whilst Ireland was one of the first states to sign the ECHR in 1953 it was the last state to (partially) incorporate the provisions of the ECHR into domestic law.

The Good Friday Agreement also made provision for the establishment of a Joint Committee comprising members of the NI HR Commission and the HR Commission of the Republic of Ireland. This Committee meets alternately in Dublin and Belfast to discuss issues such as migration and racism.

The first Irish HR Commission served from July 2001 to June 2006. The Irish HR Commission was established by the Human Rights Commission Act 2000 (as amended by the 2001 Act). It has the following main roles:

1) Keeping under review the adequacy and effectiveness of law and practice in Ireland

2) Consulting with relevant national and international bodies

3) Making recommendations to Government

4) Promoting understanding and awareness of the importance of human rights

5) Offering expertise to the Irish courts

6) Conducting enquries into possible abuses in Ireland

7) Taking legal proceedings

8) Providing legal assistance to people taking legal proceedings

The HR Commission is made up of 15 people (at least 7 must be male and 7 female). The current Commission was appointed on 31st August 2006.

The HR Commission is only able to help people take proceedings in a limited range of circumstances. For example the complainant will need to prove that he has made reasonable efforts to get legal assistance elsewhere ie. Criminal or Civil Legal Aid. The Commission is not an adjudicator body – it cannot overturn court or tribunal decisions or award compensation. It’s main remit is to conduct and enquiry to find out whether existing law or practice meets human rights standards.

I read an interesting article recently by Gara LaMarche (Atlantic Philanthropies) entitled “Ireland’s Economic Problems – No Excuse to Send Human Rights into Recession”. The budget for the Irish HR Commission was cut by 24% in 1999. She says that the Irish HR Commission is a small and traditionally underfunded organisation, nonetheless praised consistently as a strong and independent voice for human rights by the United Nations, the Council of Europe and others but that recent budget cuts will seriously undermine its work.