Legal and ethical issues with surrogacy Essay
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Surrogacy is the means of reproduction in which a woman consents to give birth to a child that she will not raise but impart to someone who is inept. Surrogacy is done by contract. It is an alternative to infertility. It is another option for those who can’t conceive but would want children. Having a surrogate mother or practicing surrogacy is very controversial. In this paper I will discuss the history of the issue with surrogacy as well as ethical and legal issues, alternative solutions, and potential effects of surrogacy in the future.
Surrogacy dates back to biblical times. The most credible records are dated in the middle of the 20th century. Surrogacy first went public in the 1970’s. The first artificial insemination clinic was introduced by Noel Keane and Dr. Ringold. The first paid surrogacy was to Elizabeth Kane. She agreed to be a surrogate for $10,000. Her indisposition to exit the agreement without the baby led to many legal impediments.
She was stricken of custody due to a signed contract. Baby M. is another controversial result of surrogacy.
It occurred in1986 where an agreement was made with a surrogate and she refused to give up the baby. (MEDSTAR, LLC, 2012). The surrogate mother’s unwillingness to give up the baby after it is born is a persistent issue in the history of surrogacy. It is also a misconception because surrogates already have children of their own. It is a qualification for them to have at least one child of their own before being involved in the surrogacy agencies. There are also other problems such as medical complications and unpaid medical bills. The hospital holds the surrogate liable for any unpaid medical bills when the intended parents do not pay.
There are numerous reasons why women would want to consider getting a surrogate mother. For instance, if she has medical problems in her uterus or has had a hysterectomy. There also may be conditions that make pregnancy impracticable or medically risky. There are some women who consider getting a surrogate mother after several unsuccessful endeavors to conceive while also assisted with other reproductive techniques such as IVF. Surrogates make parenthood possible for people who are not able to adopt due to their age, marital status or even sexual orientation. (MD Gaither, 2013).
Traditional and gestational are two types of surrogate mothers. Traditional surrogates are the ones who made surrogacy feasible. A traditional surrogate is a woman who is artificially inseminated with the father’s sperm. The woman carries the baby and delivers it for the parents. A traditional surrogate is the biological mother of the child because her eggs are used and fertilized by the father’s sperm. Donor sperm can also be utilized for traditional surrogacy. Gestational surrogates have no genetic ties to the child but they are known as the birth mother. In vitro fertilization (IVF) harvests the eggs from the female that is incapable of conception.
The eggs are fertilized with the father’s sperm and then they are placed into the uterus of a gestational surrogate. The gestational surrogate carries the baby until birth. Gestational surrogacy is less complex legally because both parents have genetic ties to the baby. It is more common than a traditional surrogate. According to webmd.com about 750 are born each year using gestational surrogacy. (MD Gaither, 2013). Intended parents and surrogates have to consider what type of surrogacy arrangement they are comfortable with. There are two types of arrangements: commercial and altruistic. Commercial surrogacy arrangements are compensated.
The surrogate is compensated for her time and effort. She may also be compensated for any traveling, and related medical expenses that are not covered by insurance. Pay scales ranges are between $0-$20,000. (Clark, 1999-2013) The potential surrogates determine how much they want to charge. The payment varies on how many times the woman has served as a surrogate mom and whether or not there will be multiple babies. It can also vary between agencies or whether it is independently done. Usually the surrogate and the intended parents do not know each other before the arrangement.
Arrangements are sometimes done by surrogacy programs. Surrogates can also be family members or friends. In altruistic surrogacy arrangements there is no financial gain. The arrangements for altruistic are commonly made between relatives or friends of the intended parents. (Trimarchi, 2013).
Some legal issues with surrogates or surrogacy in general are that parental rights are not guaranteed after a surrogate pregnancy. The reproductive law changes as rapidly as reproductive technology. The definition of the word “parent” also changes. State laws fluctuate on surrogacy in the United
States. There are no federal laws about it. In some states after the surrogate pregnancy, parents have to still pass adoption proceedings for legal custody of the child. In other states, there is a declaration of parentage before birth that supersedes the need to proceed with adoption. Parents-to-be have to protect their rights and the rights of the child by hiring an attorney to write a surrogacy contract. The contract has to clearly affirm the obligations of both the surrogate mother and the parents-to-be.
The contract will be very advantageous if the legal issues develop after the birth of the baby. The contract also outlines financial arrangements and other agreements of feasible outcomes such as a multiple pregnancy. Surrogacy raises many ethical and legal issues. For example, is it right to enter a contract with a woman, taking advantage of her circumstances by offering her money in exchange for bearing a child and then transferring all parental rights and physical custody of the child to the commissioning couple? Although the long-term effects of surrogacy contracts are not known, the adverse psychological impact could be disadvantageous to the child who learns that he or she is the offspring of someone who gave birth only to obtain money. Would the child want to search his or her gestational mother?
Should records be kept and should the child have access to those? Some believe that surrogacy contract is based on the principles that are contrary to the objectives of our laws such as baby selling. Baby selling is illegal in all states. Baby selling is the illegal practice of selling one’s own baby or acting as an agent to negotiate deal and sale a newborn for the birth parent(s). Baby selling should not be confused with legal adoptions. Legal adoptions are procedures in which each state will grant all legal rights and responsibilities to the adoptive parents. Legal adoptions are court appointed through an agency with strict regulations. Baby selling is not.
Court decisions and legislation in the United States are split on the issue of whether or not to prohibit surrogacy contracts. (Pozgar, 2013). Surrogacy whether gestational or traditional is an emotional process. There are so many ethical and legal issues. One ethical issue that arises from surrogacy is whether or not it is acceptable for a woman to rent her uterus for monetary gain. In New York is illegal to pay a woman for surrogacy. Who has legal rights of the child is also a complicated question when it comes to surrogacy.
As mentioned earlier, surrogacy laws vary from state to state. Some states have no laws while others have declared contracts unenforceable in public policy. Some states only allow uncompensated arrangements and gestational agreements. There are some states that prohibit same sex couples from being in the surrogacy agreement. There can be a pre-birth order in which the intended parent’s names are placed on the baby’s original birth certificate upon birth. It has to be filled with the court when the pregnancy occurs. The contract and finalization of parental rights can complicate things depending on state law. Surrogacy continues to be a complicated tangle of legal, social, ethical and technological issues. There are mainly arguments against commercial surrogacy.
People compare it to baby buying and selling or a womb for rent. Some people think that commercial surrogacy uses technology to exploit women, children and the meaning of mother and fatherhood in our society. (Trimarchi, 2013). Some alternatives to surrogacy would be other Assisted Reproductive Technologies (ART). ART includes all fertility treatments in which both eggs and sperm are handled. The eggs are surgically removed from a woman’s ovaries and combined with sperm in a laboratory setting or donated to another woman or returned to the woman’s body.
Some other methods used besides surrogacy or with surrogacy are as mentioned earlier In vitro fertilization. In Vitro Fertilization involves harvesting and fertilization of female ova outside the body and the subsequent placement of the embryos into the uterus. There is also gamete intrafallopian transfer (GIFT), zygote intrafallopian transfer (ZIFT), intracytoplasmic sperm injection (ICSI), and laser-assisted hatching. Gamete intrafallopian transfer is very similar to IVF. The only difference is that the harvested eggs are not fertilized in the laboratory. In GIFT, the ova and sperm are placed directly into the fallopian tubes.
The success rate is approximately 30 percent. ZIFT is similar to both IVF and GIFT. With zygote intrafallopian transfer, the ova are fertilized with sperm in the lab to form a zygote. They don’t allow it to develop into an embryo. They place the zygote into the fallopian tubes. The success rate is approximately 28 percent. ICSI is the injection of sperm directly into a mature egg. The embryo is then placed inside the uterus. The success rate is only between 15-20 percent. Laser-assisted hatching is a laser micromanipulation technique designed to improve the efficiency of assisted reproductive technology procedures such as ICSI.
An opening is made in the uterus to help the embryo hatch and implant correctly. (Einstein Industries, Inc., 1997-2013). Adoption is also another alternative to surrogacy. It also allows the family to become parents. There are two types of adoption: open and shut. Open adoption gives the parents a right to choose the adoptive parents for their newborn. Closed adoption forfeits all rights of the parent. The child is taken and put up for adoption. There are no genetic ties with adoption which is why some may choose gestational surrogacy.
Gestational surrogacy allows one or both parents to be genetically related to the child. Adoption doesn’t involve the intended parents in the conception of the baby. There is also a decline in the number of newborn infants available for adoption. (Keefer, 1999-2013).
I think that there will still be surrogacy in the future. I think that the same issue may still occur with surrogates not wanting to give up the baby. The ART technology is steadily improving so women might be able to carry their own babies instead of choosing a surrogate. On the CDC website, it stated that over 1% of infants born in the United States every year are conceived by using ART. There were over 163,039 ART cycles performed at over 451 reporting clinics in 2011 in the United States. There were 47,818 live births and 61,610 live born infants. The use of ART has doubled over the past decade. (Centers for Disease Control and Prevention, 2013).
Surrogacy dates back to biblical times. It is a very controversial matter. Many people believe that it is similar to baby selling. Some people think that commercial surrogacy uses technology to exploit women, children and the meaning of mother and fatherhood in our society. Intended parents have to be careful with surrogacy and choose what agency or surrogate suites them financially. Surrogacy can cost as much as $20,000.
Surrogacy is usually a last resort when all the other alternatives such as IVF, GIFT, and other ART methods are exhausted. Adoption is another alternative to surrogacy. It also gives intended parents the reality of actually becoming parents. The only problem with adoption is that the child will not be genetically related. ART technology is steadily improving. Surrogacy as well as all other ART procedures are giving all incompetent women or couples an opportunity to become parents.
Centers for Disease Control and Prevention. (2013, September 10). What is Assisted Reprductive Technology? Retrieved September 16, 2013, from CDC.gov: http://www.cdc.gov/ART/ Clark, V. (1999-2013). How Much Do Surrogate Mothers Get Paid? Retrieved September 15, 2013, from eHow.com: http://www.ehow.com/facts_5406483_much-do-surrogate-mothers-paid_.html Einstein Industries, Inc. (1997-2013). Assisted Reproductive Technology (ART) Procedures. Retrieved September 16, 2013, from DocShop.com: http://www.docshop.com/education/fertility/treatments/art Keefer, A. (1999-2013). Pros and Cons for Surrogacy. Retrieved September 16, 2013, from eHow.com: http://www.ehow.com/about_4672171_pros-cons-surrogacy.html MD Gaither, K. (2013, September 9). Using a Surrogate Mother: What You Need to Know. Retrieved September 15, 2013, from WebMD: http://www.webmd.com/infertility-and-reproduction/guide/using-surrogate-mother MEDSTAR, LLC. (2012). History of Surrogacy. Retrieved September 15, 2013, from Find Surrogate Mother.com: http://www.findsurrogatemother.com/surrogacy/information/history Pozgar, G. D. (2013). Legal and Ethical Issues 3/e. Burlingto, MA: Jones and Bartlet Learning. Trimarchi, M. (2013). Types of Surrogacy. Retrieved September 15, 2013, from HowStuffWorks.com: http://health.howstuffworks.com/pregnancy-and-parenting/pregnancy/fertility/surrogacy1.htm