is surrogacy ethical essay

Becoming a parent through surrogacy can have ethical challenges – but it is a positive experience for some

Assistant Professor of Practical Theology & Spiritual Care, Emory University

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Danielle Tumminio Hansen does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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This article was updated on Jan. 10 2024 .

In her new book, actress Gabrielle Union became the latest celebrity to discuss her decision to become a parent via surrogacy . She joins the ranks of household names such as Neil Patrick Harris, Nicole Kidman, Kim Kardashian, all of whom have hired a surrogate to give birth to their future child.

The publicity Union generated about surrogacy reignited ethical questions about this controversial form of assisted reproduction that range from whether women should be able to sell their reproductive abilities to what it means to be a parent .

There is global disagreement about the ethics of surrogacy. Several countries have banned it, while others have limited its scope. In the United States, laws permitting surrogacy vary by state .

The legal range is due to ethical concerns, ranging from the potential exploitation of surrogates to worries that surrogacy negatively affects the life of the resulting child.

In the decade that I’ve been researching this form of assisted reproduction , I’ve discovered that surrogacy can be exploitative, but it can also be a positive experience when undertaken with appropriate societal support and when all participants practice mutual respect, kindness and empathy. At its best, it can also encourage people to adopt a more expansive view of what it means to be a family.

Myths and fears

One could argue that the concept of surrogacy dates back to a biblical story in the book of Genesis in which Sarah, the wife of Abraham, pleads with him to have children with the slave Hagar because of Sarah’s inability to conceive.

Fast forward to modern times, and surrogacy is now performed predominantly in high-priced in vitro fertilization centers in one of two ways. In “traditional surrogacy,” the fertilized egg belongs to the surrogate. In “gestational surrogacy,” which is more common today , the fertilized egg comes from either the intended mother or a donor. In both cases, that egg combines with a sperm to become an embryo that grows in the surrogate’s womb and not the intended mother’s.

Gestational surrogacy may be preferable because it allows intended mothers to maintain a genetic connection with their child. Others may prefer it because of fears that a surrogate could lay claim to the child with whom she had a biological connection .

The fear that a surrogate will try to steal or adopt a child is one of many legal and ethical fears surrounding surrogacy. In the 1980s, the Baby M Case in the United States attracted much media attention because it tapped into these fears. In this situation, the surrogate named Mary Beth Whitehead attempted to retain custody of the baby she birthed.

The case fueled a stereotype of surrogates as emotionally unstable, defying the reality that surrogates undergo psychological testing before participating in a procedure.

Documented instances of surrogates retaining children are rare. Research shows that surrogates often experience pregnancy and birth differently than they did with their own children . They also often see themselves as heroes or gift givers instead of mothers.

If the public perceives surrogates negatively, intended parents often fare no better. They are often categorized as selfish, desperate and filthy rich, especially when they choose surrogacy without a medical reason .

Those popular images of intended parents fail to account for the reproductive trauma many of them experience prior to turning to surrogacy. Psychologists have shown that the inability to start a family can be a form of reproductive trauma . The decision to hire a surrogate, then, is often the last option for parents who have tried everything else. What is seen as desperation, in other words, is actually, as I’ve proposed in my own research , an attempt to write a happy ending to the story of their reproductive lives.

Ethical concerns about surrogacy

It is true that this way of becoming a parent is expensive, at least in the United States, where use of the technology routinely costs over US$100,000 . The cost is so extreme because intended parents pay health care fees for both themselves and the surrogate, many of which aren’t covered by insurance.

They also have to pay legal fees, agency fees, and compensate the surrogate, which alone can range from $45,000 to $75,000 . Contrast that price tag to one in India prior to its ban on international surrogacy in 2015: Couples who traveled there could expect to spend between $15,000 to $20,000 in total for their surrogacy journey.

The extreme costs of surrogacy in the U.S. limits its availability to the wealthy and to high profile celebrities like Union, raising important ethical questions about whether this is an appropriate use of resources, especially given the possibility of adopting.

In addition to ethical questions about surrogacy’s relation to wealth, feminists are divided on how surrogacy affects women. Some feminists feel that surrogates have a right to choose what to do with their bodies . Others object to surrogacy on the grounds that systemic oppression drives women into surrogacy; or that it’s unethical for women to sell their bodies, arguing that it parallels prostitution .

Cases documented in India support these concerns. Investigative journalist Scott Carney found one prominent Indian surrogacy clinic where surrogates were kept in crowded bedrooms on restricted diets and forced to have caesarean sections in order to streamline the labor and delivery process.

Scholars also worry about surrogacy’s impact on children . Studies suggest that children of surrogates may struggle with their identity , especially if those children are not told of their origins .

Extensive research hasn’t been conducted with children of surrogates. Research by social scientists studying children born via egg and sperm donation largely mirrors the findings of adoption research: Children have questions about their identity, and answers to these questions are often most accessible when children have access to those individuals who are part of their birth story . Yet agencies and governments rarely regulate how surrogates, intended parents and children interact following the baby’s birth.

Finally, many religious groups, most prominently Roman Catholics , object to surrogacy because it results in the destruction of human embryos during IVF cycles and violates their theological conviction that life begins at conception . Roman Catholics encourage heterosexual couples who cannot procreate via intercourse to adopt as an alternative.

[ You’re smart and curious about the world. So are The Conversation’s authors and editors. You can read us daily by subscribing to our newsletter .]

The case for surrogacy

Such objections might lead to the conclusion that there is never a reason to hire a surrogate. But this might be too simplistic. Even with the documented struggles on the parts of both intended parents and surrogates, many are profoundly grateful for the technology.

Intended parents often feel surrogates are “ gifts from God ” who help them reach their dream of parenthood. Meanwhile, some surrogates believe their powers of procreation provide them with a unique opportunity to help others. Many surrogates see their ability to create life as a source of power, a profound act of altruism and part of their legacy.

When I spoke with a group of surrogates in Austin, Texas, while conducting research for my book, I found that their stories aligned with the findings of other researchers who discovered that many surrogates had positive experiences in which they experienced themselves as heroes . These women felt empowered because they helped infertile heterosexual couples and gay couples create families. Without surrogacy, these individuals would have no way to have a genetic connection with their children.

The surrogates acknowledged that sometimes intended parents could be difficult, that pregnancy and labor could be challenging, and that it could be confusing when a checkout clerk at the grocery store asked what they were planning to name the baby.

Becoming a parent through surrogacy can, as Union explains , be awkward and humbling, confusing and miraculous all at the same time.

But when surrogates and intended parents can act freely, out of a sense of religious calling and with the support of society , then there is the potential for them to discover that family is not just biological but also social and relational. In those encounters, many experience the technology as life-giving, both metaphorically and literally.

The Candler School of Theology at Emory University is a member of the Association of Theological Schools.

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Surrogacy is often thought to be a ‘treatment’ option for the infertile or an alternative to adoption, and so to be celebrated in fulfilling people’s desires to be parents. However, surrogacy also brings a wealth of more complex ethical issues around gender, labour, payment, exploitation and inequality.

As a philosopher at the University of Birmingham, I am interested in ethical issues such as these. Further, as recently appointed Chair of Surrogacy UK’s  (SUK) Ethics Committee, I help the organisation think more about the ethics of their internal procedures and external public policies.

Take the issue of payment: surrogacy involves literal labour (physical and often emotional effort in both gestating and birthing). However, many see it as distinct from labour (working in a factory or teaching a class). This raises an ethical question around whether surrogacy is different from other kinds of paid work and, if it isn’t, shouldn’t we remunerate surrogates?

Some philosophers argue that surrogacy is unique when compared to other work. For instance, they claim that women are intimately connected to their reproductive capacities and bodies (so pregnancy and birth are special and should not be bought), or that being pregnant requires an unusual time commitment (unlike other kinds of work, the woman works for 24 hours a day, seven days a week, for nine months).

Others argue that there is equivalence to traditional work. Various occupations demand control over the body (ballerinas and astronauts are heavily controlled in what they can eat and how much they exercise, just as surrogates are) and longevity of work (writing a book can take longer than gestating and delivering a baby). All this work should be paid, so the argument goes.

In my own research, I have argued that what partly constitutes this difference is the ‘product’ of this labour. It is not an inanimate object, like a doll on a production line, or even a one-off performance by a ballerina. It is a living human child. The labour of the surrogate and the ‘result’ of the labour together put surrogacy at a different point on a spectrum of various types of ‘work’. To avoid concerns about commodification here, we should resist payment.

Ethics also come into play when thinking about the gendered nature of surrogacy and intended parenting. Biologically, the surrogate has to be someone with the capacity to gestate and give birth – usually a woman . As gendered labour, surrogacy triggers important feminist concerns, such as about bodily autonomy, vulnerability, inequality and rights.

For example, whether women who are surrogates maintain autonomy over their body when they are carrying a foetus for another individual or couple, or when decisions are being made about what happens to that foetus when there is disagreement. I think about the complexity of these sorts of questions and defend the importance of protecting and promoting women’s autonomy in my broader work on feminist conceptions of autonomy.

Intended parenthood raises feminist concerns too, such as on gendered roles and expectations. This includes whether women in particular feel that being mothers is critical to being ‘proper’ women (and hence why they might pursue surrogacy if they cannot carry their own children). Likewise, women might feel breastfeeding is what ‘real’ mothers (and women) do (and why intended mothers – ie, women who are not pregnant – might want to induce lactation).

Interestingly, at SUK’s annual conference in September, it was noted that lactation can be induced in men using a similar process as for non-pregnant women. ( It has been used for a transgender woman who wanted to breastfeed recently too .) For feminists worried about unequal gender roles in parenting in general, this could be further ammunition for dispelling myths about women as ‘natural’ carers because of their biological capacities.

A final ethical issue to mention is exploitation. The UK, Ukraine, US, Australia and India have different regulations about surrogacy. Some countries see the surrogate, while others the intended mother, as the legitimate mother. Some favour altruistic forms of surrogacy, while others allow commercial forms. Some countries give parental rights to intended parents before or at the birth of the child, while others only after six weeks.

There are good reasons to worry about a country-specific approach to surrogacy, as outlined in the recent Conversation article I wrote with my colleague, Dr Gulzaar Barn. In particular, the country-specific approach opens up the potential to exploit legal loopholes, intended parents, and, ultimately those doing the majority of the labour – surrogates.

Despite the inevitable difficulties of securing a global agreement, concerns about exploitation – of all parties, but especially the most vulnerable – provides a significant reason to push for a global approach to surrogacy arrangements.

These are just three ethical puzzles of surrogacy. All of the themes, and more beyond, require careful consideration since what we think about each is not just philosophically intriguing but is likely to have implications for how we believe our practice, laws and policy should be shaped. As the UK is currently reviewing its legislation on surrogacy , giving attentive thought to these issues is a particularly timely demand on all of us.

If you are interested in discussing such themes more, SUK is currently looking for members to serve on its Ethics Committee. For more information and details about how to apply, visit their website .

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Article Contents

Introduction, background and scientific facts, general ethical principles, specific ethical principles, recommendations.

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ESHRE Task Force on Ethics and Law 10: Surrogacy

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F. Shenfield, G. Pennings, J. Cohen, P. Devroey, G. de Wert, B. Tarlatzis, ESHRE Task Force on Ethics and Law including, ESHRE Task Force on Ethics and Law 10: Surrogacy, Human Reproduction , Volume 20, Issue 10, October 2005, Pages 2705–2707, https://doi.org/10.1093/humrep/dei147

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This 10th statement of the Task Force on Ethics and Law considers ethical questions specific to varied surrogacy arrangements. Surrogacy is especially complex as the interests of the intended parents, the surrogate, and the future child may differ. It is concluded that surrogacy is an acceptable method of assisted reproductive technology of the last resort for specific medical indications, for which only reimbursement of reasonable expenses is allowed.

The aim of this paper is to consider the ethical issues related to surrogacy. A ‘surrogate’ is a woman who becomes pregnant, carries and delivers a child on behalf of another couple (intended or commissioning parents). The term surrogacy covers several situations. In the first situation (full surrogacy), the gestating woman has no genetic link to the child. In that case, (i) the gametes of both commissioning parents are used; (ii) both gametes come from donors (donation of either supernumerary or de novo -created embryos); or (iii) one of the commissioning parents provides the gametes and a gamete donor the other. In the second situation (partial surrogacy), the surrogate mother has a genetic link by providing the oocyte. In either case, the gestating woman intends to relinquish the child to the commissioning parents, who want to assume parental responsibility.

Surrogacy presents several problems in the context of treatments involving third parties (collaborative treatments), e.g. the intended relinquishment by the gestating woman of the child she has carried; the relationship of the commissioning parents towards that child and towards the surrogate; and potential commercialization.

Potential indications

Surrogacy without genetic link.

Gametes provided by both commissioning parents . A distinction can be made between: (i) indications such as absent or scarred uterus/endometrium (congenital causes like Mayer–Rokitanski–Küster syndrome, inoperable scarred uterus, hysterectomy) which are absolute; and (ii) medical contraindications to pregnancy which are relative and can vary according to the magnitude of the risk and the severity of the condition for either the gestating woman or the future child (e.g. heart or renal failure, severe Rhesus iso-immunization). There is no consensus for other indications such as repeated miscarriages and repeated IVF failures. They should be confirmed by research.

In some countries surrogacy is performed for social reasons (‘for convenience’).

Double gamete donation or embryo donation . The indications are a combination of all the above together with the absence of gametes of both commissioning parents or severe genetic problems in both commissioning parents. The latter case seems a rare possibility.

Single gamete donation . The indications are a combination of the indications for full surrogacy plus absence of gametes or genetic problem in either commissioning parent. In the case of a problem with the commissioning mother, this may be due to premature ovarian failure, ovariectomy, Turner’s syndrome or cancer treatment.

Surrogacy with genetic link

The indications are identical to those for single gamete donation in the commissioning mother; the only difference is that the surrogate also provides the oocytes.

Kinds of surrogates

There are different kinds of surrogate women linked to the system of recruitment: in a largely non-commercial system, surrogates will usually be family members or friends, whereas in a commercial system the number of unrelated women, is higher.

Pregnancy risks

These include miscarriage, ectopic pregnancy, risk of multiple pregnancy which may be more common, and medical complications of pregnancy; the latter increase with age and complicated reproductive history.

Success rate

Pregnancy rates are satisfactory and comparable to those reported for similar technologies without surrogacy. Success rates are affected by the same factors such as age of the oocyte provider.

Psychosocial aspects

The available evidence is based on a limited number of cases and small studies.

The commissioning parents . Within the appropriate context (implication counselling, screening protocols of all parties involved), it is generally experienced as a positive procedure by the commissioning parents, which is understandable as it is their only chance to become parents. However, on some occasions major (legal and psychological) problems arise. The procedure is also likely to be less problematic when both commissioning parents have a genetic link with the offspring.

Surrogates . Surrogate women do not generally experience major problems under the same conditions mentioned above (appropriate counselling and careful selection of candidates). Nevertheless, some of them experience psychological problems at the moment they relinquish the child, and there have been reports of exceptional cases where the surrogate woman decides to keep the child.

The surrogate’s child(ren) . The available information is extremely limited. The psychological consequences for the surrogate’s child(ren) of giving away the newborn birth sibling are unknown.

The prospective child of commissioning parents . Again the available information is extremely limited; some risks are known (risk of rejection or risk of being the object of a conflict between the parties), others are not known as long-term follow-up studies have only just started.

Surrogacy is an acceptable procedure if it is an altruistic act by a woman to help a couple for which it is impossible or medically contraindicated to carry a pregnancy. We are aware of the moral objections against the procedure and of the potential risks and complications. However, these objections are insufficient reasons to prohibit surrogacy altogether. But it is essential that there are measures and guidelines in order to protect all parties, to guarantee well-considered decision-making and to minimize risk.

Several arguments have been presented against payment for surrogacy. These include insult to human dignity, the instrumentalization of the human body, potential exploitation of vulnerable women and inappropriate inducement (coercion) of women. When all these arguments are taken into account, altruistic surrogacy is the only acceptable form. Reimbursement of medical expenses incurred during the pregnancy and directly pregnancy-related complications, which are not covered by the national health service or private insurance, should be reimbursed. The surrogate should also be compensated for pregnancy-related expenses as well as the loss of actual income (but not potential income) if this is not covered by the national social security system.

By the very nature of the agreement, both parties involved (the commissioning couple and the surrogate) have voluntarily accepted certain restrictions on their autonomy. The agreement creates prevailing moral obligations for both parties. They cannot unilaterally change their minds after the start of the pregnancy. Even in the case of divorce, the original agreement stands and the commissioning parents will still be the parents. Only in the case of the commissioning parents’ death before birth would the surrogate have first choice to keep the child or to give it up for adoption.

Since the surrogate freely accepted to conceive and deliver a child on behalf of another couple, she simultaneously accepted certain restrictions to her autonomy. She is expected to behave as a responsible woman (i.e. to adopt a healthy life style etc.) and to conform to the original agreement with the future parents with regards to prenatal screening and testing. This includes the possibility of considering a termination of pregnancy in case of severe malformation of the fetus.

Informed consent

The surrogate . Generally, when a women carries a child, there is a legal rule (presumption) that the care of this child is going to be undertaken by her, and that she will assume this moral responsibility. Surrogacy is intended to bring about a child for the commissioning parents. The implication of the process is therefore that the surrogate woman cannot keep any right or responsibility for the child after delivery. The woman who gestates is not expected to have parental rights or responsibility to the child she delivers. Therefore it should be made clear at the outset of the procedure that the intended parents have the primary responsibility for the child. The information provided to the future surrogate should thus be that she will have to hand the child over to the commissioning parents. We are aware of particular concerns when the gestating woman also provides the oocyte (partial surrogacy). Until we have further evidence, we would discourage this kind of surrogacy agreement.

The commissioning parents . They should be informed that they are the parents of any born child. For the best interest of the future child, their moral responsibility is engaged from the start of the project.

The gestational woman’s family . The consent of the current partner is necessary in order to protect their relationship, and also because, as the law stands in a number of countries, the male partner would be the legal father of the child till the commissioning parents become the legal parents. The interest of her child(ren) must also be taken into consideration during the implication counselling process.

The same precautions should be implemented as for gamete donation (see Task Force 3), including screening for HIV, hepatitis B and hepatitis C. We also strongly recommend the transfer of only one embryo of good quality as a general rule, and two at the most if the embryos are of less good quality, the oocyte provider is aged >35 years and/or the number of fertilized oocytes is low (see Task Force 6). The surrogate should be fit for pregnancy as judged by appropriate medical and psychological criteria. We also recommend one act of surrogacy per woman, unless the pregnancy is for the same commissioning couple.

Antenatal screening . A mutual agreement should ideally be reached along the usual recommendations of antenatal screening unless all parties decide otherwise consensually.

Preconception and prenatal care : The surrogate undertakes the pregnancy freely and deliberately. As a consequence, she should behave as a reasonable pregnant woman by taking all the precautions advised in modern antenatal care (vitamins, no smoking, moderate alcohol use, etc.).

Termination of pregnancy . A termination of pregnancy can be justified for medical reasons (for the surrogate). From an ethical point of view (as mentioned in the section on general ethical principles), it is inappropriate to terminate a healthy pregnancy against the wish of the commissioning parents. However, the surrogate has a legal right to do so and this risk should be taken into account by the commissioning couple when stepping into the agreement. Given the principle of respect for autonomy and bodily integrity of a pregnant woman, it is impossible either to prevent the gestating woman from terminating the pregnancy, or to force a termination upon her. Nevertheless, since she freely accepted this project, she has the prima facie moral obligation to continue the pregnancy.

Mode of delivery . Taking into account the principle of autonomy of the pregnant woman, she cannot be forced to accept the advice of the obstetric team, but she still has a prima facie obligation to accept the advice that will ensure the best outcome for the child as well as for herself.

Enforceability of the agreement

Legal enforcement of the surrogate’s behaviour is not possible before delivery. Therefore counselling should raise all points detailed above, and the parties should reach a mutual agreement on all foreseeable hazards. Since the commissioning parents are fully responsible for the born child, a surrogate has no right to keep the child. Like a gamete donor, she never acquired parental rights or responsibilities. On the other hand, the agreement is also binding for the commissioning parents in case the child would be handicapped or in case of a multiple pregnancy. Regardless of what was stipulated in the agreement, the child or children born are their responsibility.

The welfare of the future child born from surrogacy

There is little empirical evidence and no long-term follow-up studies regarding the social and psychological consequences of such an arrangement. No information is available for instance on the potential confusion about maternal roles. Long-term consequences if the surrogate woman keeps in contact with the resulting family have not been studied either. The possibility of conflicts cannot be excluded.

Openness by the parents towards the child about its mode of conception is advisable. The wish of the child to know its genetic origin should be taken into consideration by the parents in cases where donor gametes or the oocyte of the surrogate have been used.

The duty and responsibility of the doctor

There is neither a moral nor a legal obligation on the part of the doctor to collaborate in a surrogacy project. If he or she decides to collaborate, he or she has: (i) a duty to inform all parties about the medical, social, psychological, emotional, moral and legal issues involved in surrogacy; (ii) to make sure that the candidates fulfil the indications; and (iii) to ensure that the parties receive appropriate screening and counselling in order to reduce risk and promote free and well-informed decision-making. The practitioner has the same obligation of care towards the pregnant surrogate as to any pregnant woman, although additional counselling and emotional support may be necessary.

Intrafamilial surrogacy

Different types of intrafamilial surrogacy can be distinguished: between sisters and intergenerational, either of mother for her daughter or vice versa. The main concerns in the literature are moral coercion and relational bewilderment for the offspring. We have no principled objection to known surrogacy either by mother or sister. No evidence is available at present that such arrangements have generated additional problems but careful counselling of both parties is indispensable. For those cases where the daughter serves as a surrogate for her mother, there may be an increased risk of dependency and undue pressure.

Surrogacy is a morally acceptable method of assisted reproduction of last resort. The least problematic indication is the absence of the uterus regardless of aetiology (absolute indication). Other indications may include serious health risks for the intended mother and difficulties in becoming pregnant (relative indication). Because of the risks and uncertainties for all parties involved, reluctance regarding the broadening of relative indications is advisable.

Payment for services is unacceptable; only reimbursement of reasonable expenses and compensation for loss of actual income should be considered.

All parties involved should be counselled and screened separately by independent specialists.

The surrogate should be aged <35 years for partial surrogacy and <45 years for full surrogacy. In order to ensure free and well-considered decision-making by the surrogate/gestating woman, it is required that the woman has at least one child.

A ‘cooling off period’ is recommended so that all parties can think through their decision.

It is strongly recommended that only one embryo should be replaced in order to prevent multiple pregnancies and to avoid unnecessary endangerment of the surrogate’s and the future child’s health. For special conditions, the replacement of a maximum of two embryos can be considered.

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 in the psychological impact of the arrangement on the child(ren).

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.

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The Ethics of Surrogacy: Understanding the Surrogate Debate

Katharine Chan, MSc, BSc, PMP

From Khloé Kardashian to Chrissy Teigen, more and more celebrities are speaking openly about using surrogates to carry their children. This celebrity trend has prompted the topic of surrogacy to become more commonly discussed by the general public.

For those who struggle with infertility or face barriers in creating their families, this normalization of surrogacy has helped reduce the stigma around it. However, there remain ethical and moral factors that must be considered by intended parents before making this decision.

To help you make this important decision, we’ve laid out the ongoing debates surrounding the ethical issues of surrogacy. We will consider costs, fair pay for labor, surrogates’ rights, and other moral and societal stances around how we talk about and treat surrogates.

What is Surrogacy?

Surrogacy is a reproductive arrangement in which a woman, known as a surrogate or gestational carrier, becomes pregnant and carries a child for another individual or couple, known as the intended parents. There are two primary types of surrogacy:

• Traditional Surrogacy: In traditional surrogacy, the surrogate uses her own egg and is artificially inseminated with the sperm of the intended father or a donor. This means the surrogate is genetically related to the child she carries.  
• Gestational Surrogacy: In gestational surrogacy, the surrogate does not provide the egg. Instead, an embryo is created through In Vitro Fertilization (IVF) using the eggs of the intended mother or egg donor and the sperm of the intended father or sperm donor. The resulting embryo is then transferred to the surrogate’s uterus. The surrogate in gestational surrogacy is not genetically related to the child.

Surrogacy is often sought by individuals or couples who are unable to conceive and carry a pregnancy themselves due to various reasons, such as fertility issues, medical conditions, or same-sex couples.

Surrogacy is a complex process involving legal, medical, emotional, and ethical questions. The laws surrounding surrogacy vary by both country and state, and these laws can impact the rights and responsibilities of all parties involved.

Ethical Considerations of Surrogacy

Surrogacy is a complex and emotionally charged topic with several ethical and moral considerations. Here are some key points to consider:

Autonomy and Informed Consent

Surrogates must provide informed consent . It’s crucial to ensure that the surrogate fully understands what consent means including the process, risks, and potential emotional challenges. They should have the autonomy to make decisions about their bodies. It is important to have a  surrogacy contract that protects the rights and autonomy of the surrogate mother.

Intended parents must respect the autonomy and informed consent of the surrogate. They should ensure the surrogate fully understands the process, potential risks, and emotional challenges. All parties should willingly participate in the surrogacy arrangement.

Surrogacy Costs

Surrogacy is costly; it can be unaffordable for those with limited financial resources and/or lower socioeconomic situations.

We spoke with  Jeff Hu , Director of  SurrogateFirst about the costs of surrogacy in the USA. He explained that the financial burden of surrogacy is the biggest challenge for intended parents. Most intended parents will be under budget, resulting in even more financial stress down the road.

Hu shared that currently, there aren’t many options in terms of financing from traditional lenders.

“There is a lack of assistance in the form of private scholarships or financial support from the government and employers are not providing sufficient infertility benefits to their employees,” explained Hu.

Hu shared that the cost of surrogacy ranges between $150,000 to $200,000. This includes the following:

• Medical care (IVF cycles, medical clearance, doctor visits)
• Total compensation of the surrogate (including base compensation and variable costs)
• Egg donation if necessary (egg donor compensation and agency fee)
• Professional services (surrogacy agency fee, lawyers, psychological review)
• Insurances (health and life)

“The cost variations are based on the intended parents’ requirements as well as the number of transfers it takes to conceive and have a healthy delivery,” explained Hu.

Compensation for the Surrogate

Surrogates are often compensated for their time, effort, and the physical demands of pregnancy. Hu explains that surrogates are paid for more than just carrying a baby. Compensation is comprised of cash-based compensation, benefits and other circumstantial occurrences.

“Surrogates are compensated for the time and effort it takes to qualify to become a surrogate, and the pain and suffering it takes to carry a full-term pregnancy; as well as to be protected from any medical costs and potential loss (of life or reproductive function),” adds Hu.

Ethical concerns can arise if the compensation is perceived as  exploiting the financial vulnerability of the surrogate and/or making  pregnancy and childbirth a commodity . This could compromise the voluntariness of the agreement.

The Journal of Medical Ethics discusses how  altruistic surrogacy (unpaid surrogacy) and commercial surrogacy (paid surrogacy) affect the morality of the practice. The journal argues that if  commercial surrogacy were to be eliminated, the ethical issues surrounding surrogacy may be reduced. Individuals who chose to become surrogates would be “motivated by purely ‘altruistic’ aims,” rather than driven by money.

Surrogate’s Health and Well-being

Intended parents have a responsibility to protect the surrogate’s physical and emotional well-being throughout the pregnancy. Ethical surrogacy contracts should include safeguards to protect the surrogate’s health and ensure proper  prenatal care , address  health concerns , and be prepared for potential complications.

Surrogates may face long-term emotional, psychological, or physical impacts from the surrogacy process. Ethical surrogacy considers these potential long-term consequences and offers support.

Surrogate’s Rights and Decisions About Their Body

Surrogates should have the right to make decisions about their bodies. Ethical surrogacy respects a woman’s right to decide when and how to become pregnant and carry a child.

Intended parents should treat the surrogate mother with respect and dignity. This includes valuing her as a partner in the surrogacy journey, recognizing her sacrifices, and providing emotional support.

Hu provides an example of the surrogate’s decision to be vaccinated:

“[Vaccination] has now become a standard question to confirm upfront with the surrogate. Again, it is 100% the decision of the surrogate to determine. Some intended parents and clinics require mandatory vaccination to become medically cleared, and some do not.”

Pregnancy Termination

What happens if there are complications during the pregnancy or concerns about the health of the child?

Hu shares that asking the surrogate about their termination stance and having a clear understanding of this is crucial before finding an intended parent match.

“It is 100% the surrogate’s decision if they have a No Termination stance or if they will leave it to the doctor’s discretion if medically necessary, or if they allow termination at the full discretion of the intended parents,” he explains.

Relationship with the Child and Future Considerations

Some surrogacy arrangements involve traditional surrogacy where the surrogate’s own egg is used. In such cases, the surrogate may have a biological connection to the child. Ethical concerns can arise about the  surrogate’s relationship with the child .

Honesty and transparency are crucial. Intended parents should be forthright about their intentions, including their desires for a relationship between the surrogate and the child, if any.

Intended parents should also think about the long-term consequences of surrogacy, including how they will explain the surrogacy to the child, family, and friends.

Legal Protections and Parental Rights

Surrogacy laws vary from one place to another. Ethical surrogacy ensures that the intended parents have the legal rights to the child, and the surrogate has the right to make decisions about her health and body. Ethical surrogacy should take place within a legal framework that protects the rights and interests of all parties involved.

It’s important to approach surrogacy with a deep understanding of the ethical considerations and to work with professionals who are experienced in surrogacy law and ethical practices. This helps ensure that surrogacy is carried out in a way that respects the rights and well-being of all involved.

Ethical Decision Making

Intended parents should make ethical decisions before starting the surrogacy process. They should consider the best interests of the child, the surrogate, and themselves.

Hu shares some of the moral questions and ethical decisions that intended parents must consider before starting their surrogacy journey:

• Is surrogacy socially acceptable?
• Should surrogacy be reserved based on medical needs?
• Is it okay to pursue surrogacy to protect your career and/or to not suffer the pain and physical aspects of pregnancy?
• Is it okay to pay someone else to have a baby for me?
• Should surrogacy be a last resort and used only when the individual or couple can not physically carry due to medical reasons or if they are a same-sex couple?

Intended parents need to approach surrogacy with a deep sense of responsibility, respect, and ethical awareness. Working with experienced professionals, such as attorneys, surrogacy agencies, and mental health experts, can help navigate the ethical considerations involved in surrogacy to ensure that the process is conducted in an ethically sound manner.

Blazier, J., & Janssens, R. (2020). Regulating the International Surrogacy market: the Ethics of Commercial Surrogacy in the Netherlands and India. Medicine, Health Care and Philosophy , 23 . https://doi.org/10.1007/s11019-020-09976-x

Marway, H. (2018, September 27). The ethics of surrogacy . University of Birmingham. https://www.birmingham.ac.uk/news-archive/2018/the-ethics-of-surrogacy-1

Oakley, J. (1992, October 1). ALTRUISTIC SURROGACY AND INFORMED CONSENT. Bioethics; Wiley-Blackwell. https://doi.org/10.1111/j.1467-8519.1992.tb00206.x

Saxena, P., Mishra, A., & Malik, S. (2012). Surrogacy: Ethical and Legal Issues. Indian Journal of Community Medicine , 37 (4), 211. https://doi.org/10.4103/0970-0218.103466

Surrogacy Contracts - American Surrogacy. (n.d.). https://www.americansurrogacy.com/parents/surrogacy-laws-surrogacy-contracts

van Niekerk, A., & van Zyl, L. (1995). The ethics of surrogacy: women’s reproductive labour. Journal of Medical Ethics , 21 (6), 345–349. https://doi.org/10.1136/jme.21.6.345

Zohny, H. (2022, April 11). Does money affect the morality of surrogacy? Journal of Medical Ethics Blog. https://blogs.bmj.com/medical-ethics/2022/04/11/does-money-affect-the-morality-of-surrogacy/

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Making Sense of Bioethics: Column 136: The Multiple Moral Problems of Surrogacy

S ometimes when there is in­fertility in marriage, couples make the decision to seek out the services of a surrogate in order to have a child. A surrogate is a woman who agrees to be implanted with an em­bryo produced by  in vitro  fertiliza­tion (IVF) and to hand over the newborn baby to the couple upon completion of the gestation and birth. In recent years, gestational surrogacy has become a multi-mil­lion dollar industry, attracting a broad clientele ranging from mar­ried couples to single women, gay couples to anyone else with the de­sire for a baby and the ability to finance the undertaking. Surrogacy raises grave moral concerns, and powerfully undermines the dignity of human procreation, particularly when it comes to the women and children involved in the process.

One of the significant moral concerns around surrogacy is that it introduces fractures into parent­hood by multiplying parental roles. Surrogacy coerces children into situations where they are subjected to the unhealthy stresses of am­biguous or split origins, perhaps being conceived from one woman’s egg, gestated by another woman, raised by a third, and maybe even dissociated from their father by anonymous sperm donation. Such practices end up being profoundly unfair and dehumanizing for the children caught in the web of the process. One woman, who was herself conceived by anonymous sperm donation, describes her experience this way: 

“My existence owed almost nothing to the serendipitous nature of normal human re­production, where babies are the natural progression of mutually fulfilling adult rela­tionships, but rather repre­sented a verbal contract, a financial transaction and a cold, clinical harnessing of medical technology.” 

Moreover, women who sign up as surrogates often feel deeply con­flicted about giving up the baby at birth and tearing asunder an im­portant 9 month connection and relationship that had been care­fully developed and nurtured.

There can be no doubt that the hawkers and promoters of surrogacy exploit vulnerable, fi­nancially challenged women, of­ten in overseas settings, to un­dergo the risks of drug-induced artificial pregnancy. While the proponents of the procedure will often portray these women as motivated primarily by a desire to help others, surrogates them­selves will privately note how they do it for the money, and in the absence of substantial payments, wouldn’t be willing to move ahead with the ardu­ous procedure. Alex Kuczynski, de­scribing her own expe­rience of en­gaging a surrogate in a 2008 New York Times interview, speaks frankly:

 “We encountered the wink-nod rule: Surrogates would never say they were motivated to carry a child for another couple just for money; they were all motivated by altruism. This gentle hypoc­risy allows surrogacy to take place. Without it, both sides would have to acknowledge the deep cultural revulsion against attaching a dollar figure to the creation of a human life.”

Indeed, surrogacy involves turning human life into a commodity on multiple levels, as Kathleen Sloan recently described in testimony given to a Minnesota state commission studying the issue. A seemingly un­likely opponent of the procedure, Sloan works as a pro-abortion femi­nist and director of the National Or­ganization for Women in Connecti­cut. On gestational surrogacy, how­ever, she agrees with pro-life criti­cisms, noting how it involves “chil­dren intentionally severed from ge­netic and biological sources of iden­tity, human rights be damned. In es­sence, it is the ultimate manifestation of the neoliberal project of capitalist commodification of all life to create profit and fulfill the nar­cissistic de­sires of an entitled elite.” 

Those narcissistic desires are readily catered to by an IVF industry that generates offspring in the labo­ratory for clients. In this process, ex­tra embryonic humans are produced, stored and oftentimes orphaned in freezers, or even discarded outright by throwing them away as “biomedi­cal waste.” In fact, the process of IVF, central to the practice of surro­gacy, generally ends up killing more babies than it delivers. Coupled with the fact that contracting couples can pressure the surrogate mother to un­dergo an abortion if the in-utero child appears to be “imperfect,” or to eliminate a twin through “selective reduction” in a multiple pregnancy, it can hardly be disputed that children are pawns in the merciless endgame of satisfying parental and customer desires and corporate profit motives.

A woman’s reproductive powers and her God-given fecundity should never be reduced to the status of a “gestator for hire” or a “breeder” as they are sometimes called by industry insiders, nor should women be ex­ploited by allowing payment for har­vesting their eggs. A woman’s pro­creative powers ought to be shared uniquely through marital acts with her husband, so that all the children born of her are genetically and other-wise her own. All children merit and deserve this loving consideration and assurance of protection at the point of their fragile and sacred be­ginnings.

Copyright © 2020, The National Catholic Bioethics Center, Philadelphia, PA. All rights reserved.

Fr. Tad Pacholczyk earned his doctorate in neuroscience from Yale and did postdoctoral work at Harvard. He is a priest of the diocese of Fall River, MA, and serves as Senior Ethicist at The National Catholic Bioethics Center in Philadelphia.

GREM - Gynecological and Reproductive Endocrinology & Metabolism

The Open-Access Journal of the ISGE

02/2021 , Review , 066-073

Review, 066-073 | DOI: 10.53260/GREM.212021

Surrogacy – a worldwide demand. Implementation and ethical considerations

Adrian Ellenbogen , Dov Feldberg , Vyacheslav Lokshin

Review, 074-084 | DOI: 10.53260/GREM.212022

Higher risk of hypertensive disorders of pregnancy and preeclampsia in pregnancies following frozen embryo transfer: a systematic review and meta-analysis

José Antonio Moreno Sepulveda , Pamela Santucci , Miguel A. Checa

Short Review, 085-092 | DOI: 10.53260/GREM.212023

Factors leading to primary ovarian insufficiency: a literature overview

Stefano Basile , Giacomo Noti , Luca Salvati , Paolo Giovanni Artini , Benedetto Mangiavillano , Sara Pinelli

Case report, 093-096 | DOI: 10.53260/GREM.212024

Four pregnancies and three successful vaginal deliveries in a patient with Turner Syndrome

Javier Mejia-Gomez , Hala Gomaa , Rohan D’Souza , Wendy Wolfman

Case report, 097-100 | DOI: 10.53260/GREM.212025

Smell and taste dysfunctions after COVID-19: sexual issues from the patient perspective. A paradigmatic case

Alessandra Graziottin

Case report, 101-105 | DOI: 10.53260/GREM.212026

Exceptional association of Leydig cell ovarian tumor and primary hyperparathyroidism in a postmenopausal patient

Elias M Chuki , Zeina C Hannoush

Original articles, 106-111 | DOI: 10.53260/GREM.212027

Total testosterone significantly correlates with insulin resistance in polycystic ovary syndrome

Hurjahan Banu , Md. Shahed Morshed , Nazma Akhtar , Tania Sultana , Afroza Begum , Moriom Zamilla , Sadiqa Tuqan , Sukanti Shah , Ahmed Hossain , Shazia Afrine , Emran-Ur Rashid , Iffat-Ara Jahan , MA Hasanat

Original articles, 112-116 | DOI: 10.53260/GREM.212028

The genetic background of coagulation factors is associated with the presence of amenorrhea in girls with anorexia nervosa: a pilot study

Areti Augoulea , Eleni Armeni , Stavroula A. Paschou , Evangelia Deligeoroglou , Emmanuel Economou , Georgios Papadimitriou , Evgenia Stergioti , Vassilios Karountzos , Artemis Tsitsika , Konstantinos Panoulis , Irene Lambrinoudaki

Original articles, 117-123 | DOI: 10.53260/GREM.212029

Bone, metabolic and anthropometric changes in very young women with premature ovarian insufficiency or complete androgen insensitivity syndrome with removed gonads using oral estradiol valerate, transdermal estradiol or oral ethinylestradiol: a pilot study

Giulia Gava , Ilaria Mancini , Stefania Alvisi , Renato Seracchioli , Maria Cristina Meriggiola

Original articles, 124-132 | DOI: 10.53260/GREM.2120210

A novel quartile scoring-based methodology for assessing combinatorial association of prenatal cortisol and DHEA-S with birth outcome among pregnant women

Aarthi Sundararajan , Kranti Vora , Shahin Saiyed , Senthilkumar Natesan

• Adrian Ellenbogen '> CONTACT Bruce and Rappaport School of Medicine. Technion-Israel Institute of Technology, Haifa, Israel. Kupat Holim Meuhedet, Tel Aviv, Israel
• Dov Feldberg Sackler Medical School of Medicine, Tel Aviv University, Schneider Hospital for Women-Rabin Medical Center, Petach Tikvah, Israel
• Vyacheslav Lokshin Kazakh National Medical University of Kazakhstan, Almaty, “Persona” International Center of Reproductology, Almaty, Kazakhstan

Background:

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.

Full article PDF

Full Article

Introduction.

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 acceptable [17] .

Surrogacy in the UK

The United Kingdom, like Canada, prohibits commercial, but not voluntary-altruistic surrogacy agencies, and forbids advertising for or about surrogacy. Only the commissioning couples and the host surrogate may initiate, negotiate or compile information to make surrogacy arrangements [19] . Surrogacy agreements are unenforceable.  Although the law around parentage in surrogacy is far clearer and more uniform in the UK than in Canada, the rules respecting legal parenthood can vary. Assisted reproduction in the UK is governed by the provisions of the Human Fertilization and Embryology Act (HFE Act) and regulation is handled   by the Human Fertilization and Embryology Authority (HFEA). Parentage in gestational surrogacy is determined on the basis of the status provisions of the HFE Act. These provisions provide that the birth mother and her consenting spouse or same-sex civil partner are the legal parents of the child, whether or not they are genetically related to the child.  If there is no father under the status rules — where, for example, the surrogate mother is single or where her spouse or partner does not consent to the assisted conception treatment —, the intended father can be considered the legal father of the child.  It is clear that in gestational surrogacy, the intended parents are not the parents of the child at birth. Intended parents can seek what is called a Parental Order for adoption of the child.  Until the Parental Order is approved, the future parents have no parental status and cannot make decisions regarding the child’s welfare.  To achieve a Parental Order, intended parents must meet several conditions: the application must be made at least six weeks but less than six months after the child is born;  the birth mother and her spouse or partner must consent to the Order;  at least one intended parent must be domiciled in the UK; the child must be in the care of the intended parents; at least one intended parent must be genetically related to the child and the intended parents must be a couple (either married or civil partners). Finally, and very significantly in the international surrogacy context, the court must be satisfied that “no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of the agreement, handing over the child or making arrangements with a view to the making of the Order, unless the payment is authorized by the court” [20] .

Surrogacy in the Russian Federation

Surrogacy has never been illegal in Russia. Only gestational surrogacy is permitted. Surrogacy was mentioned in the Russian family code for the first time in 1995 [21] . The Russian family code states that intended parents may be listed on the birth certificate with the surrogate’s consent only. This means that, at least theoretically, the surrogate can keep the child she gestated.    However, after determining the genetic parents of the newborn, there will be no way to change the circumstance. The most important legislation in Russia dealing with surrogacy was adopted in 2011 [22] . Taking into consideration that the birth of a baby to a childless couple or a single parent transforms an individual into a family, Russian law tried to follow this principle. According to article 55-9 of this federal health law, surrogacy is defined as carrying and delivering a child according to conditions specified in an agreement that identifies the surrogate and the potential parents, whose fertilized gametes will be transferred into the surrogacy uterus. The option of surrogacy is also available to single women who are unable to carry and deliver a child for medical reasons. A surrogate mother must meet three main requirements; in addition to giving her written informed consent, she must be: 20-35 years of age, have at least one healthy child, and have obtained a medical report showing that she is healthy. A married woman can serve as a surrogate only with the permission of her husband, because in the event of his wife deciding to keep the child, he will become its legal father. The Russian law is unclear with regard to the use of the intended parents’ gametes in a gestational surrogacy, i.e., it is not clear whether the child must be related to both parents or whether the gametes could be donated from an IVF clinic’s cryobank (legal in Russia), without genetic link to the two parents or to a single woman [23,24] .  A maximum of two embryos may be transferred at one time to the surrogate. Yet, the surrogate may agree to transfer of three embryos after full informed consent including detailed information about the risks of multiple pregnancies and preterm deliveries [21] . A surrogacy agreement can be implemented in Russia only in the presence of the same medical indications described earlier [6] .  From the financial point of view, payment to the surrogate mother is standardized at total of 20000 euro. Thus, the monthly salary of a gestational surrogate exceeds the average monthly income of the commissioning parents [23,24] . Interestingly, the current federal health law neither allows nor bans surrogacy for individual males who wish to become a single parent. Although, to date, no single man has ever been considered as a patient with the right to be treated for infertility, technically, he might be eligible, having an absolute indication for surrogacy, namely congenital lack of a uterus. Any child born to an individual male would be registered with a blank space in place of the mother’s name, in the same way as a single woman who becomes a mother through surrogacy can register her child “to herself only” as the only parent [25] . Russia’s liberal legislator framework on surrogacy makes the country attractive for reproductive tourists looking for techniques not available or much more expensive in their own country. Foreign patients are afforded the same rights as local citizens. If delivery in a gestational surrogacy program takes place in Russia, the commissioning parents obtain a Russian birth certificate with both their names on it. Genetic relationship to the child (in case of donation) just does not matter [26] .

Surrogacy in Kazakhstan

Surrogacy has been a reality in Kazakhstan since 1998, when the law "On Marriage (Matrimony) and the Family" introduced a definition of "surrogacy" [27] . Despite some legal imperfections, in terms of the absence of a description of the rights and obligations of both surrogate mothers and customers, as well as of the rights of the child, this law facilitated the initiation of the first successful surrogacy program in the Center for IVF of the city of Almaty, which resulted in the birth of twins in 1999. In that surrogacy program, the patient's own sister acted as the surrogate mother.

With the introduction and update of The Code of the Republic of Kazakhstan "On Marriage (Matrimony) and the Family" [28] clear requirements for the regulation of surrogacy were introduced, where all parties, and especially the child, are protected, and rights and legitimate interests are guaranteed. The indications for surrogacy are regulated by Order No. 627 dated October 30, 2009 "On the Approval of the Rules for Implementation of Assisted Reproductive Methods and Technologies" [29] and they are similar to those described previously [6] . No more than 2 embryos can be transferred at a time to the surrogate mother.

The surrogacy agreement is a notarized written agreement between persons who must be married and willing to have a child and a woman who has consented to carry a pregnancy and give birth to a child through recourse to assisted reproductive methods and technologies. The surrogacy contract contains: the data of the spouses and of the surrogate mother; the instructions and conditions of payment of financial expenses for the maintenance of the surrogate mother; the rights, obligations and responsibilities of the parties in the event of non-fulfillment of the contractual conditions and the amount compensation.

A woman willing to be a surrogate mother must be aged 20-35 years, have satisfactory physical, mental and reproductive health, as confirmed by the opinion of a healthcare organization, and must also have a healthy child of the own. If a surrogate mother is married, the notarized agreement of her spouse shall be provided, in written form, during conclusion of the surrogate contract. The healthcare organization that will apply the assisted reproductive methods and technologies is obliged to state their opinion on utilization together with full information on the biological material to be used — be this material from these persons, willing to have a child, or donor material from a bank.

Unlike the Russian legislation, genetic parents are recognized as the parents of  a child born as a result of the use of assisted reproductive technologies (ART) (surrogacy). A surrogate mother is obliged to transfer the child, once born, to the persons with whom she has concluded a surrogacy agreement. Also, of great importance for genetic parents, is the fact that the medical certificate a child’s birth is registered in the maternity home in the name of the genetic mother; this allows the parents to have a birth certificate issued without unnecessary difficulties, preserving the secret of the child’s birth. As a rule, the genetic mother simulates pregnancy, is present at childbirth and takes her child immediately after it is born, having fulfilled all obligations to the surrogate mother in accordance with the agreement. Upon the birth of the child, the genetic mother is granted paid postpartum maternity leave. The surrogate mother receives both prenatal and postnatal leave. The law provides for legal measures to protect the child.  1. Spouses are recognized as the parents of a child, born as a result of recourse to assisted reproductive methods and technologies on the basis of the surrogacy contract. In the event of the birth of two or more children as a result of application of such methods and technologies, or according to the surrogacy contract, spouses shall acquire liability for each child born in equal measure. 2. Any surrender of a child shall follow established procedures and take place after the registration of his (her) birth with a registering body by the spouses. In the case of surrender of a child by spouses who agreed to the application of assisted reproductive methods and technologies, or concluded the contract with a surrogate mother, the spouses shall not have the right to request compensation for the financial expenses incurred. In such a circumstance, the right to motherhood shall pass to the surrogate, but if she, too, surrenders the child, he or she shall be transferred to the custody of the state. In the case of surrender of a child by spouses and his/her adoption by a surrogate mother, the spouses shall be obliged to pay compensation in the amount and manner laid down in the contract. 3. In the event of dissolution of the marriage of the genetic parents, the responsibility for a child, born under the surrogacy contract, shall be divided between both partners.  4. In the event of death, the surviving spouse will take on the responsibility for the child born under the surrogacy contract.  5. In the event of death of both genetic parents and refusal of their close relatives to adopt a born child, this child may be transferred to the surrogate mother if she wishes; if she refuses, the child shall be transferred to the custody of the state. A child transferred to a surrogate mother or to the custody of the state shall not lose his (her) rights as heir of his (her) genetic parents [28] .

The legislation of the Republic of Kazakhstan makes it possible to solve the issue of infertile marriage, but there are still unresolved issues of an ethical and a legal nature. Unlike the Russian laws, only a married couple can use surrogacy services, single persons cannot enjoy this type of assistance, even if there are medical indications  [27] .

Surrogacy in the USA

The remarkable changes in American family law with the developments in the use of ART led to proposed laws, such as the sections of the 2000 Uniform Parentage Act as amended in 2002 (U.P.A.) law [30] .

The U.P.A. "provides for a written agreement among the proposed gestational mother, her husband if she is married, the donor or donors, and the intended parents. In this agreement, the gestational birth mother, her husband if she is married, and the gamete donor or donors relinquish all rights and duties regarding the child to be produced by ART.  The agreement also provides for the intended parents to be the legal parents of the child so produced.  The U.P.A. provides that a court may approve an agreement if the intended parents and the prospective gestational mother (and her husband if she is married) have been residents of the state for at least 90 days. The agreement can include a provision for reasonable compensation to the prospective gestational mother.  A hearing to validate the agreement must include the following findings: (1) that the residency requirement has been met and the parties have submitted to the jurisdiction of the court; (2) that there has been a home study of the suitability of the intended parents in conformity with the standards governing adoptive parents unless it is waived by the court; (3) that all parties voluntarily entered the agreement and understand its terms; (4) that adequate provision has been made for reasonable health care expenses until the birth of the child; and (5) that the compensation provided to be paid to the gestational mother (if any) is reasonable. After the court has approved the agreement but prior to the gestational mother becoming pregnant by ART, she (and her husband if she is married) or either of the intended parents can terminate the agreement by giving written notice of termination to all other parties.   Neither the gestational mother nor her husband can be held liable to the intended parents for terminating the agreement. The court may terminate the agreement for good cause. If a party gives notice of termination, the court will vacate the order of validation. The U.P.A. states that after the birth of a child to the gestational mother, the intended parents shall file a statement of the birth with the court if the birth took place within 300 days of the assisted reproduction.  The court will then issue an order confirming the legal parentage of the intended parents, if necessary, will issue an order for surrender of the child to the intended parents, and direct the issuance of a birth certificate naming the intended parents as the parents.  If the intended parents do not report the birth to the court, the gestational mother or a state agency may do so. Upon proof that the court had validated the agreement, the court will enter an order declaring the intended parents to be the legal parents and that they are financially responsible for the support of the child" [30] . In 2013, the Ethics Committee of the American Society for Reproductive Medicine stated that intended parent(s) "are the individuals contracting with the gestational carrier and planning to be the social and legal parents of the child. ‘‘Gamete providers’’ are the sources of the sperm and oocytes; they may or may not be the intended parents.  Gestational carriers have a right to be fully informed of the risks of the surrogacy process and of pregnancy.  Gestational carriers should receive psychological evaluation and counseling. Gestational carriers should have independent legal counsel. Reasonable economic compensation to the gestational carrier is ethical. The intended parents are considered to be the psychosocial parents of any children born by a gestational carrier" [31] .

Despite the above statements, surrogacy laws vary widely between American states. For instance, in California, the practice is legal and regulated. California surrogacy laws require  that both parties in a surrogacy agreement be represented by legal counsel when drafting  a surrogacy agreement or contract . Any surrogacy contracts must be notarized or otherwise witnessed before the surrogate may take any medication in connection with the embryo transfer procedure.  In California,  neither a sperm donor nor an egg donor is a parent  when their gametes are used in assisted reproduction and result in a child [32] . Other states have legislation dealing with surrogacy agreements; these laws vary as to the legality of such agreements, their enforceability, and whether compensation is permitted, or they make surrogacy agreements unenforceable, and rely on common law where custody is disputed.

Surrogacy in Australia

  Commercial surrogacy is prohibited in Australia. Until quite recently, even altruistic surrogacy was forbidden in several jurisdictions; now it is permitted in most states. As it is difficult to find women willing to enter into surrogacy arrangements without compensation (and as advertising related to surrogacy is commonly outlawed), many Australians have sought surrogacy services in other countries. In three Australian states (New South Wales, Queensland, and the Australian Capital Territory), such surrogacy tourism has now been banned. Surrogacy contracts are not enforceable in Australia, although some states have provisions that enforce the obligation to pay surrogacy-related costs to the surrogate mother.  In general terms, parentage law in Australia is similar to that in the UK. The surrogate mother and her partner are parents at birth, regardless of whether there is any genetic connection to the child.  In addition, as in the UK, most states have a process whereby intended parents can obtain a court order declaring them legal parents.  Statutory conditions attach to parentage orders, but the specifics vary by state. Very generally, the conditions include age and residency requirements for the parties, consent from all of the parties, terms that the agreement was made prior to conception and was not a commercial arrangement, and a conclusion by the court that the child’s welfare is best served by the order [20] .

Surrogacy in South American countries

Surrogacy has not been regulated in Latin America. The views of South American societies and public opinion regarding ART and surrogacy have changed over time, but regulations and laws have been slow to adapt (mainly because of the preeminent role in the judicial system played by the traditional Catholic belief system). This creates complicated situations, as illustrated by the varying laws and case studies. South America, like other regions of the world, regulates or fails to regulate surrogacy arrangements, legislating on this issue in different and disparate ways, often in relation to whether the situation concerns a commercial or an altruistic surrogacy arrangement. Introducing and passing legislation on controversial topics, such as ART and surrogate motherhood, generates a huge amount of public debate and controversy, because a large segment of the population believes human procreation should be limited to the natural ways  [33] .

Surrogacy in Israel

Israeli law.

In Israel, fertility and procreation are hugely important issues, both socially and culturally.  There is no doubt that the cultural background of the Jewish and Muslim traditions and religions have a significant influence on Israeli society's attitude to these issues. There is also no doubt that the social pressure to allow legal and regulated surrogacy has led the State of Israel to be among the first countries in the world to enact a surrogacy law.

The surrogacy law in Israel was ratified in 1996, and ever since has enabled surrogacy to take place in Israel [34] . By law, a man and a woman who are partners are entitled to find a surrogate alone or through a surrogacy agency, and to enter into a surrogacy contract with her. The surrogacy agreement is submitted to the Board for Approval of Surrogacy Agreements, which verifies the compatibility of the parties to the process: it checks that the surrogate is not entering the process out of "emotional or financial distress [and verifies the] emotional and physical and medical suitability" of all those involved in the procedure.

The Surrogacy Agreements Law [35] deals with the agreement between the intended parents and the surrogate mother, according to which the surrogate mother agrees to become pregnant through implantation of an egg fertilized with the intended father’s sperm, to carry pregnancy on behalf of the intended parents, and to hand over the baby, after its delivery, to the intended parents. The law is intended for women of fertile age, Israeli citizens, aged up to 54, who are unable to become pregnant and carry a pregnancy, or who might severely put their health at risk should they become pregnant. The surrogate mother must be 22-38 years old and can undertake only three surrogacy procedures, however no more than two births, or delivered once and did not became pregnant afterwards after six embryo transfer cycles or did not become pregnant after six embryo transfer attempts on each process.

The Embryo Carrying Agreement consists of two parts: the first part deals with the surrogacy agreement. The second part deals with the status and parenting of the newborn.  The law views the surrogacy agreement as an autonomously drawn-up contract by the parties working in the “free market,” but which must be put forward to an authorization committee for validation.  The committee’s task is to approve the agreement after ensuring that it meets the conditions laid down by the law and providing it is convinced that both parties signed of their own free will, and after establishing that no risks are posed to the mother’s health or to the child’s welfare.  It was also decided that the committee has the authority to approve conditions for the surrogate mother regarding "monthly payments to cover considerable expenses and to recompense for wasted time, suffering, loss of income or temporary loss of working ability or any other reasonable compensations". The Board considers the documents submitted to it, hears the parties to the agreement as required, and is entitled, as per its judgment, to require any additional material from the parties and to hear any additional person. The Board approves the surrogacy agreement after being satisfied that the conditions, as they appear in Section 5 (a) of the law, are satisfied.

Composition of the Board

The Board comprises: two physicians who are certified specialists in obstetrics and gynecology; a physician who is a certified specialist in internal medicine; a clinical psychologist; a social worker; a public representative who is a jurist; and a clergyman, as per the religion of the parties to the agreement. The surrogate mother cannot pull out of the surrogacy agreement, unless a “genuine change occurs to justify this” prior to the issue of the parental order. The law forbids a family member of one of the intended parents serving as the surrogate mother, as well as “traditional surrogacy,” where the surrogate mother is genetically related to the fetus. The law states that the sperm used for IVF may come from the intended father only and that the embryo carrying agreement cannot include clauses which preclude the surrogate mother from receiving any medical treatment of her choice, including abortion. The law allows heterosexual couples with legal couple status to use surrogacy. By the end of 2017, of 1458 applications, 1450 had been approved according to the law, and 823 children had been born through surrogacy [36] .

In 2018 the surrogacy law was extended to single intended mothers, who can turn to surrogacy provided their own eggs are to be used (meaning that these mothers have a genetic relationship with the baby that will be born).  So far, homosexual couples are not allowed to use the procedure [36] .

Surrogacy in Iran

In a very interesting description of surrogacy in an Islamic country [37] , it was affirmed that gestational surrogacy is being practiced in some medical institutions in Tehran, and in some other cities in Iran and stated that most "Shiite scholars, but not Sunni, have issued jurisprudential declarations (fatwas) that allow surrogacy as a treatment for infertility". The main ethical concern with surrogacy in Iran is of a financial nature. Even though monetary compensation is allowed by religious authorities, this has ethical implications. The author suggests that economic agreements should be limited to reimbursement to the surrogate mother of her  expected expenses.

Pregnancy complications and delivery rates after surrogacy treatment

In gestational surrogacy programs, clinical pregnancy rates per embryo transfer have been reported to range from 19 to 33%, with between 30 and 70% of couples achieving clinical pregnancy going on to become parents [17] . In a recent retrospective study, 178 pregnancies were achieved out of 333 stimulation cycles, including fresh and frozen transfers. The mean age of the gestational carriers was 31.8 years (range 21–44). The indications for surrogacy were as follows: in 96 women, with a mean age of 40.3 years, recurrent implantation failure, recurrent pregnancy loss, and previous poor pregnancy outcome (132 cycles, pregnancy rate 50.0%, miscarriage rate 25.8%, and birth rate 34.8%); a further 108 women, with a mean age of 35.9 years, suffered from severe Asherman's syndrome, uterine malformations/uterine agenesis, or maternal medical diseases (139 cycles, pregnancy rate 54.0%, miscarriage rate 20.0%, and birth rate 40.3%). Maternal complication rates were low, occurring in only 9.8% of pregnancies. Fetal anomalies occurred in only 1.8% of the babies born [38,39] . Moreover, another study found that up to the age of 10 years there were no major psychological differences between children born after surrogacy and children born after other types of ART, or after natural conception [39,40] . In studies which assessed contact between the surrogate mother and the intended mother/family, in the vast majority of cases contact was harmonious and regular, both during pregnancy and after birth [41,42] . Psychological personality tests performed in surrogate mothers were found to be in the normal range [43] . Follow-up studies show that, generally, surrogate mothers had no significant difficulties handing over the children to the intended parents [41, 44] .

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.

Conflict of interest Statement:

The authors declare that there is no conflict of interest.

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Keywords: gestational carrier , infertility , IVF , Surrogacy

Citation: Ellenbogen A.,Feldberg D.,Lokshin V., Surrogacy – a worldwide demand. Implementation and ethical considerations, GREM Gynecological and Reproductive Endocrinology & Metabolism (2021); 02/2021:066-073 doi: 10.53260/GREM.212021

Published: June 14, 2021

Review Published: June 14, 2021 Pages: 066-073 Keywords: gestational carrier , infertility , IVF , Surrogacy DOI: 10.53260/GREM.212021 Citation

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Krause F, Boldt J, editors. Care in Healthcare: Reflections on Theory and Practice [Internet]. Cham (CH): Palgrave Macmillan; 2018. doi: 10.1007/978-3-319-61291-1_6

Care in Healthcare: Reflections on Theory and Practice [Internet].

Caring relationships: commercial surrogacy and the ethical relevance of the other.

Franziska Krause .

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Published online: July 20, 2017.

In recent decades surrogacy has become a global business that calls into question traditional concepts of family and the idea of intimacy between two people. A woman offers her body—and in some cases also her ova—to a couple with an unfulfilled wish for a child. An analysis of relationships and the way in which relationships of care can be promoted in times of globalisation and the commercialisation of private spheres of life is central to an ethics of care. Starting with this assumption about the ethics of care, two criticisms of surrogacy are indicated: (1) the potential emotional, physical and financial exploitation of the surrogate as a result of the commercialisation of reproductive labour and (2) the disintegration of private and intimate relationships by separating conception, delivery and child education. This chapter focuses on aspect (2) by explaining the importance of relationships for our moral self-understanding. The phenomenologist Emmanuel Levinas is of special importance to this discussion, since his philosophy emphasises relationships and the idea of responsibility within relationships, and discusses the extent to which relationships serve as the basis for justice. Employing the insights of Levinas, I will show that the practice of surrogacy is first and foremost a caring relationship between the parents-to-be and the surrogate. As a result the practice of surrogacy must not be reduced to economic terms or international regulation. Instead it is crucial to highlight the importance of caring relationships (and their intimacy) for an ethical evaluation of surrogacy.

• Surrogacy and Ethics

Today commercial surrogacy is a “global baby business” (Donchin 2010 , p. 323) valued at between US $500 million and US $2.0 billion in India alone (Knoche 2014 ). This boom in international surrogacy can be ascribed to the possibilities opened up by assisted reproductive technologies (ARTs) such as in vitro fertilisation (IVF) as well as affordable travel opportunities in the age of globalisation. Hence starting a family is no longer exclusively a question of intimacy and individual choice between two people, nor is it a question of having a vast amount of money. Surrogacy has become an attractive alternative for many couples (Robinson 2006 ) either when reasons of infertility or sexual orientation make a “natural” pregnancy impossible or when a woman is unwilling to carry a pregnancy. Although surrogacy is forbidden in many countries (e.g. Germany), some countries (e.g. the UK) permit altruistic surrogacy and in others (e.g. India) surrogacy is actually a well-established form of medical tourism. Evidence suggests that the medical tourism industry will grow in the coming years, as for example, the surrogacy prices in India are five times lower than in some US states. Accordingly, Arlie Russell Hochschild describes commercial surrogacy as “the ultimate encounter between the market and intimate life” (Hochschild 2012 , p. 178), where difficult questions about hiring others to perform personal acts arise. The practice of surrogacy is a sphere of life in which economic considerations, medical technologies and international regulations are indissolubly entwined. Because of its complexity, the practice of surrogacy makes ethical evaluation difficult.

Before presenting some ethical considerations concerning the practice of surrogacy, a short remark on terminology is required. In general, two kinds of surrogacy can be distinguished: In a traditional arrangement, a surrogate mother contributes her ovum and is genetically related to the child. Gestational surrogacy, in contrast, means that the surrogate carries a child that is not genetically related to her, but to the commissioning parents or a third party that donates the ovum and/or the sperm. This distinction is of empirical importance insofar as most surrogacy arrangements today are gestational and most “dramatic surrogacy failures” (Shapiro 2014 , p. 1355), such as the Baby M case, 1 can be traced back to traditional surrogacy. Cases in which the surrogate mother is also genetically related to the child present a problem for the courts in particular, in that not only the legitimacy of surrogacy contracts has been called into question, but the issue has also been raised of whose right to the child is greater: the genetic and biological mother, or the genetic father and his wife, the social mother.

However, gestational surrogacy without apparent conflicts, which is relatively routine today, is not suited to serve as a starting point for a moral evaluation of the practice of surrogacy, and it is even less suited to present a moral argument to legitimise surrogacy. It can merely serve to emphasise different manifestations of problems within the practice of surrogacy. And even though ethical questions, such as the role of embodiment and genetic ties, are of greater importance in traditional than in gestational arrangements, I will show that both arrangements can share the problem of disconnected relationships. In this chapter, I consider relationships to be an essential component for taking on responsibility. But this also requires that a relationship is recognised as such—a requirement which, above all in commercial surrogacy arrangements, is rarely fulfilled.

In addition to the distinction between gestational and traditional surrogacy, some authors draw a distinction between commercial and altruistic surrogacy in order to underline that the motivation for becoming a surrogate mother is central to the moral status of surrogacy itself. Many ethicists interpreting surrogacy as an arrangement of exploitation 2 and commodification 3 refer to the vulnerable socio-economic background of most surrogates and suspect them of having become a surrogate solely out of financial motivation. Because of this financial incentive, the surrogate’s decision cannot be declared as autonomous (which is the basis for “right” actions) but as heteronomous, that is guided by external motivations. Indeed, the financial incentive for women in the “global south” to enter into a surrogacy arrangement is extremely high. A woman who works as a surrogate can assure the livelihood of her family for five years; furthermore, she is able to offer her own children a better future by sending them to school (Karandikar et al. 2014 ; Panitch 2013 ). Besides the status of financial compensation in surrogacy arrangements, other conditions are problematic as well. The educational level of the surrogates is low, which often prevents them from understanding the contract conditions, the medical risks 4 and the procedures they will have to undergo. There is a danger that the surrogates will make their decision under non-ideal circumstances and agree to give birth to a child that is not theirs in absence of the conditions for informed consent. Furthermore, their lack of education also diminishes their opportunities for other jobs. As a consequence, surrogacy often appears to be the only option these women have (Pande 2010 ). On the basis of the socio-economic conditions of most surrogates in the global south, surrogacy can be interpreted in one sense as providing the wrong financial incentive to do something one would not otherwise do or, alternatively, as a realistic chance for the surrogates and their families to live a better (autonomous) life (Fabre 2006 ; Macklin 1990 ).

No matter how restricted one’s life options, the idea that the narrow range of one’s options unacceptably constrains one’s choice is not a reason to limit further one’s range of choice. (Arneson 1992 , p. 158)

In line with this opinion, Cécile Fabre argues that even though women in India often opt for surrogacy under non-ideal conditions (which should be improved), they live a “minimally flourishing life” (Fabre 2006 , p. 187), which ensures that they can decide freely and in accordance with life plans. Any notion of further concerns, for example the emotional distress of being pregnant and giving birth to a child for another couple, is something that has to be taken seriously, but is no reason to deny people the possibility of choosing surrogacy (Fabre 2006 , p. 199). Indeed, Fabre even allows surrogates to keep the child because of emotional ties; however, from her standpoint this is a question of “valid, but voidable contracts” (Fabre 2006 , pp. 186–218). The eventuality of emotional bonding does not constitute a reason to doubt the correctness of the surrogacy contracts themselves. Even though some studies show empirical evidence that bonding between mother and child during pregnancy does not necessarily occur (Robbins and Eaves 2013 ), the question remains whether the possibility of bonding and the consequential potential harm to the surrogate is a real challenge for the practice of surrogacy. These doubts are dismissed by Fabre: “we cannot and will not ever be able to live in a risk-free society, particularly one free of the emotional risks attendant on parenthood. Nor, in fact, should we aspire to do so” (Fabre 2006 , p. 218).

Other authors who also do not condemn contract surrogacy in general, but are rather concerned with gender inequality in the practice of surrogacy, mention the need to take care of “the most economically and emotionally vulnerable party in any such arrangement” (Satz 2010 , p. 132), that is the surrogate, and thus demand an improvement in the conditions of surrogates in the global south. This may include, for instance, making third-party brokerage of pregnancy contracts illegal, giving women the right to terminate the pregnancy against the will of the commissioning parents or making educational and occupational programmes available to Indian women. As a result of such measures, fewer Indian women would “choose” to become gestational surrogates (Satz 2010 ; Schanbacher 2014 ). Leaving aside the feasibility of the implementation of these requirements as part of the practice of surrogacy, the question as to the moral and social consequences of even an ideal practice of surrogacy still remains.

Already in the 1980s, the feminist philosopher Susan Sherwin claimed that it was a task for medical ethics to analyse ARTs in the context of control over reproduction. For her it is obvious that the increased use of ARTs, such as IVF, and the possibility of surrogate pregnancy imply a decrease in women’s control over their reproduction—especially for the surrogates. 5 We must look not just to broad social policy, but also to the details of relationships to delineate the social attitudes and patterns that are at risk of being undermined (Sherwin 1989 ). The analysis must not be restricted to the individual and its situation nor to dyadic and personal relationships, but rather it must consider the relationships of all parties involved. Recently the care-ethicist Stephanie Collins wrote that, based on the inherent value relationships have for people, “relationships ought to be (a) treated as moral paradigms, (b) valued, preserved, or promoted (as appropriate to the circumstances at hand), and (c) acknowledged as giving rise to weighty duties” (Collins 2015 , p. 47). This leads to the crucial question of what the moral foundation of relationships is and why relationships are important to individuals.

• Levinas and Ethics

A philosopher for whom the relationship with another person is central for morality and for ethics is Emmanuel Levinas. Based on a phenomenological methodology presented with Jewish-theological thinking and terms, he describes ethics as an intersubjective relation beyond the need of any consciousness, knowledge or reflective ability. Levinas’ ethics can be read in the tradition of phenomenology. He describes the phenomenon of life by posing the question of what something means for us as human beings. In an ongoing process of perceiving and interacting with the world, the self finds what it means to be ethical. For Levinas, ethics is the first and most important discipline of philosophy. However, his understanding of ethics differs from traditional ethical theories. It is neither based on a Kantian idea of self-legislation, nor the calculation of happiness, such as in utilitarianism, nor the cultivation of virtues. Instead it is best understood as a proto-ethics. This means that it focuses on the question of what it takes to understand ethics and why people should be moral at all. The idea of weighing different ethical principles is not relevant to Levinas, insofar as he describes an ethics which initially only addresses the relationship of the self to the Other and what it means for the self to carry responsibility for the Other. Questions involving the needs of many people, for example concerning justice, are of subordinate interest to Levinas. Being-with-one-another is an ontological dimension of a person and not just a social fact without any impact on the individual. This is why the foundation of Levinas’ approach centres on the face-to-face encounter of the self and the so-called Other. The fact that Levinas presents the Other as fundamentally dissimilar, that is not merely as another self (the Not-I) or someone who displays similar characteristics, opens up the possibility, according to Levinas, to avoid reducing the Other in the self to a certain facet or a particular notion of the Other. 6

Levinas and the Ethics of Care: The Mother–Child Relationship

Even though Levinas never uses the word “care” to describe the relationship between the self and the Other, the ethics of care and Levinas have a lot in common. Both take the mother–child relationship as a paradigm of their anthropological analysis. Although the phenomenology of natality is described as having all the aspects of a maternal body, the concept of the mother is not exclusive to women but rather independent of any category of sex. The relationship between mother and child serves as a paradigm for the fundamental vulnerability and dependency of the self. Without the mother, a child would not have been born and could not be part of this world. Life thus begins with dependency and with an asymmetry of power, and both these characteristics of life require the care of another person. Being in a relationship with someone is therefore the first condition for being in the world. An ethics which emerges from such an image of human contingency and dependency represents an alternative to the model that regards people as “self-interested strangers” (Held 2006 , p. 77) who simply enter into a contract with each other. It highlights responsibilities which exceed contractual models of reciprocity.

Furthermore, the mother–child relationship sheds light on the special characteristic of ethical relations: In the eyes of the mother, her child is special. Because of the fact of natality—which plays a crucial role both in the ethics of care and for Levinas—the concept of humankind starts with an emphasis on the particularity of every person and every situation. Just as the child is special to the mother, all people are of importance to someone. They are unique and irreplaceable in their meaning to someone else.

Finally, both ethics underline the importance of the attitude of being responsive to the Other and the world. Being responsive is not something one can really choose to be. Levinas uses the image of “being held hostage” to describe the phenomenon of dependency. In pregnancy, this dependency becomes obvious. Having a baby limits the freedom of the mother—she is not supposed to drink or eat what she wants, her body changes enormously and feeling physically sick is often part of pregnancy. It is not unusual for women to wish for their “customary body” back (Staehler 2016 , p. 31), that is the ability to perform everyday activities again as usual. A mother’s love for her child is not affected by these constraints, however. According to Levinas, the same is true for the relationship with the Other: Being in a relationship with the Other represents a challenge for the self. This relationship is not freely chosen in its conditions, but is based on unconditional responsiveness and responsibility towards the Other.

Being responsive and responding to the needs of someone else are thus central to both Levinas and the ethics of care. While Levinas primarily foregrounds the needs of the Other, an ethics of care also asks to what extent the self can fulfil the needs of the Other. According to the well-known definition by the care-ethicist Joan Tronto (Tronto 1993 , 2013 ), care is best understood as attitude and as practice. While this differentiation can be made methodologically, in daily life the phases of care often occur (or at least should occur) all at once. “Caring about” and “taking care of” are descriptions of the attitude of the care-giver while “care-giving” and “care-receiving” touch on the practice of care. “To care” is about assessing a need (attentiveness), realising that one has the capabilities to help the other (responsibility), coming in contact with the object of care (competence) and expecting a response from the care-receiver (responsiveness) (Tronto 2013 , pp. 34–35). Although the Other obviously plays a crucial role in the process of caring, almost all discussions about caring start from the perspective of the care-giver and not the care-receiver , as Tronto states (Tronto 2013 , p. 150). This is the point where Levinas can offer important insights to supplement the ethics of care, because he builds his concept of relationships on the role of the care-receiver , the so-called Other. While the ethics of care can create awareness of how care practices should ideally proceed and the social, economic and political conditions necessary to facilitate this, Levinas lays the foundation for understanding why the Other approaches us and why we have to take responsibility for them. Levinas locates answers to the “why” of care in the Other, and not in the self.

Levinas’ Concept of Responsibility

Levinas’ starting point for ethics is the Other. The Other contains a transcendent part, a part which exceeds all experiences in the real world. Alterity—the being totally different than the self and different than any other object of experience—is addressing the self. It is challenging the self to give an adequate answer, because the self desires to understand the Other, but also lacks the capacity to fulfil this aspiration.

The will is free to assume this responsibility in whatever sense it likes; it is not free to refuse this responsibility itself; it is not free to ignore the meaningful world into which the face of the Other has introduced it. (Levinas 1991b , pp. 218–219)

When Eva Feder Kittay says that it must first be acknowledged that who is responsible for whom is often a matter of absolute judgement and less a matter of degree (Feder Kittay 1999 , p. 56), she is actually making the same point as Levinas. To meet the needs of another person is an absolute necessity and cannot be rejected, because without the Other, the self would not be obliged to give reasons for its action or even identify its own capacity to act. The question of the right reaction to the need of the Other, that is the actualisation of responsibility, is secondary. In this way, Levinas’ conception of responsibility differs from what we usually think of when we talk about responsibility: The ability to act is typically understood to be a necessary condition for recognising and exercising responsibility. For Levinas, in contrast, being responsible for the Other is the foundation of every action. Before you act, you are already responsible.

The passivity of the self that is expressed by “being-already-in-responsibility” is why Levinas’ concept of responsibility cannot be attributed to an intentional act; it is nothing the self can decide on. However, responsibility is normative, because it is necessary in order to be ethical, to be part of humanity. Thus, from Levinas’ point of view, one may even say that the Other constitutes the self in its morality, because without the Other there would be no reason for being moral. Although the absolute responsibility for the Other seems to force the self into heteronomous actions, as Levinas sees it, this mode of relation constitutes an antecedent to freedom and the condition for being ethical. From this perspective, freedom is best understood as a liberation from ontological necessities, a “deliverance from Being” (Ciaramelli 1991 , p. 88). The way Levinas thinks about the self also becomes clearer in this context: It is not a Hobbesian self that identifies the Other as a risk for one’s own life and freedom. Instead the self is ethical and becomes a subject of good will with the appearance of the Other, because “ toward another culminates in for another ” (Levinas 1991a , p. 18).

The knot of subjectivity consists in going to the other without concerning oneself with his movement toward me. […] I have always one response more to give, I have to answer for his very responsibility. (Levinas 1991a , p. 84)

Whereas there are no restrictions on the responsibility of the self for the Other—even the responsibility of the Other devolves upon the self—the self cannot expect the other to behave in the same manner. To be is first of all being for the Other without expecting a reward. For Levinas, seeking reciprocity refers to the sphere of economy, that is to mere contracts. Within a contract there is no need to recognise the alterity of the Other, because economic relations are based on utility and the expectation of reciprocity between equals. Mere economy epitomises the “totalisation of unique persons” (Levinas 1995 , p. 54). In this sphere, there is just a numerical alterity or diversity of Others, not a kind of recognition of the alterity of the Other. In contrast, ethics is the opposite. Ethics requires relationships between unique individuals and the recognition of their alterity. As a consequence, the purpose of ethics is not a search for rules or principles, but rather a search for the right response to a concrete Other.

Levinas and the Concept of Relational Autonomy

Vulnerability, exposure to outrage, to wounding, passivity more passive than all patience, passivity of the accusative form, trauma of accusation suffered by a hostage to the point of persecution, implicating the identity of the hostage who substitutes himself for the others: all this is the self, a defecting or defeat of the ego’s identity. And this, pushed to the limit, is sensibility, sensibility as the subjectivity of the subject. It is a substitution for another, one in the place of another, expiation. (Levinas 1991a , p. 15)

The focus of relational approaches is to analyse the implications of the intersubjective and social dimensions of selfhood and identity for conceptions of individual autonomy and moral and political agency. (Mackenzie and Stoljar 2000 , p. 4)

They consider the exercise of individual autonomy to be embedded in historical and social features and therefore criticise, for example libertarians, for paying little attention to the background social conditions in which preferences are formed (Mackenzie 2014 ). Social structures and interpersonal relations are not just to be considered as a condition of causal control, instead they partly generate autonomy by affecting one’s capacity to live an “autonomous” life (Dodds 2007 ; Oshana 2006 ; Westlund 2009 ). In other words, autonomy is constituted by the social, personal, economic and cultural embeddedness of the self and is an ongoing process that takes place in relation to others. In this sense, relationships should not be understood as intrinsically good; they also exhibit a disruptive potential—for example, when they prevent a self-determined life from being led or undermine shared values. Thus, questions such as those regarding the emancipation from oppression, the recognition of the Other and how best to structure our social practices in order to allow for autonomy are of particular importance.

These insights can help to clarify what a relational approach to the practice of surrogacy means: Relationships are an indispensable part of constituting the self, and in the context of surrogacy, this leads to a reconsideration of the importance of all kinds of relationships inherent to the practice of surrogacy as part of an ethical evaluation. To look at the practice of surrogacy as an individuals’ choice (as libertarian positions do) means to refuse the complexity of such arrangements. Neither is the surrogate solipsistic in her autonomy nor is the decision of the commissioning parents independent of the social world they live in.

• Levinas and Surrogacy

When Elizabeth Anderson states with regard to surrogacy that “by engaging in the transfer for children by sale, all of the parties to the surrogate contract express a set of attitudes toward children which undermine the norms of parental love” (Anderson 1990 , p. 77), she seems to agree with Levinas. Contracts cannot regulate the way in which people should feel responsible for the concrete Other. Contractual arrangements suggest that a parental relationship starts when the parents-to-be bring the child back to their home country. In line with Levinas, it is possible to explain why the responsibility of the parents-to-be is not limited to the baby, but has to be extended to the surrogate. In order to form a more precise idea of the shared responsibilities and the parties involved in surrogacy arrangements, however, drawing a distinction from Levinas seems to be informative. In general, three kinds of relationship can be ascribed to surrogacy arrangements (setting aside surrogacy agencies or sperm and ovum donors).

Sensibility—the proximity, immediacy and restlessness which signify in it—is not constituted out of some apperception putting consciousness into relation with a body. Incarnation is not a transcendental operation of a subject that is situated in the midst of the world it represents to itself; the sensible experience of the body is already and from the start incarnate. The sensible—maternity, vulnerability, apprehension—binds the node of incarnation into a plot larger than the apperception of self. (Levinas 1991a , p. 76)

The corporeal experience is much more powerful than a conscious examination of the self and the world can be. In this sense, alienation from the Other, the baby, is secondary to the immediate experience of the Other and only imaginable as a reflective and conscious act. This conscious alienation is exactly what agencies demand from the surrogates: not to feel a deep connectedness to the baby, but rather to consider their wombs as “carriers” and themselves just as “prenatal babysitters” (Hochschild 2011 , p. 24). From a phenomenological perspective, however, the body cannot be viewed exclusively as an object of ownership and control, but is rather a gateway to the world for the purpose of sensibility, which has proven itself independent of cognitive reflection. The concept of the “lived body,” which is greatly emphasised in phenomenology for its experience of the self (Carel 2011 ; Folkmarson Käll and Zeiler 2014 ), is knowingly manipulated and denied by agencies in the practice of surrogacy. Here mothers are prevented from bonding with the child during pregnancy, as this could potentially lead to the refusal to handover the child to the contracted parents and consequently result in a breach of contract—such as in the case of Baby M.

The son is a unique son. Not by number; each son of the father is the unique son, the chosen son. The love of the father for the son accomplishes the sole relation. (Levinas 1991b , p. 279)

Whereas the image of the Other in the self plays a role in motherhood, the recognition of the Other in its Otherness figures in fatherhood. Therefore, it is a not a matter of defining the role of genetic paternity and the responsibility associated with it, but instead a matter of Finding-Yourself-in-the-Other without being the Other. Responsibility and attachment are thus seen as a process of recognition. The commissioning parents have a similar relation to the child—regardless of whether they are genetically related to the child or not. They are looking for their unique child and want to assume responsibility for the child’s whole life. However, as some cases in the practice of surrogacy show, this responsibility is a fragile construct. 8 Unconditional love can be compromised and depreciated by the existence of a contract that seems to regulate the needs and responsibilities inherent in surrogacy arrangements (Kuhlmann 1998 ). Surrogacy contracts imply the possibility of control over the purchased product, yet fail to recognise that in the case of a child, the contract does not concern goods, but instead a person who is vulnerable and non-exchangeable in their uniqueness.

The relationship between the surrogate and the parents-to-be is the third relationship of special importance in surrogacy arrangements. Little attention is paid to this topic in scientific discourse, but for this analysis it is crucial to show that the surrogate and the commissioning parents are not just contract partners, but also interrelated in an ethical manner. Levinas’ concept of “the third” offers an interesting insight for the analysis of this special relationship, as it shatters the private relationship between the self and the Other and introduces a different, although still ethical, quality. As Stéphane Mosès points out, the third is different from the Other in the sense of proximity, quantity and its selection: The third is further afar than the Other, it is numerous instead of unique, and it is the only one in an ethical relationship that is freely chosen (Mosès 1993 ). The surrogates meet the criteria: they are usually miles away from the commissioning parents, it does not matter to them exactly which surrogate carries their child to term, and it is they who choose to enter a surrogacy arrangement and involve a third party in their family planning.

[…] what seems to me very important, is that there are not only two of us in the world. But I think that everything begins as if we were only two. It is important to recognize that the idea of justice always supposes that there is a third. But, initially, in principle, I am concerned about justice because the other has a face. (Levinas et al. 2005 , p. 170)

It is notable that Levinas recognises that we need institutions and relationships of reciprocity and equality. However, this cannot mean that the social and the political sphere—what he calls “justice”—render the face of the Other irrelevant. Quite the contrary: The presence of the Other must not be replaced by institutional structures. Responsibility is always present as if there were a concrete Other with specific needs. For the practice of surrogacy this means that even though the surrogate is not part of a personal relationship, she is nevertheless part of a personal responsibility, and her needs must be met. In the current situation it is easy for the commissioning parents to shake off their responsibilities by referring to contracts with the agencies or to the fulfilment of governmental instructions. This is a development that Levinas criticises in his work: Institutionalisation , that is the mere application of rules, principles and laws, allows people to forget that exercising responsibility for the Other is valuable in order to do justice. Alternatively, one may say that ethics needs forms of institutionalisation but this set of (universal) rules must serve ethics. And ethics is capable of forming a better society only if people accept their personal responsibilities.

The discourse about the global practice of surrogacy often focuses on the question of the exploitation of surrogates or the increasing commercialisation of our lives. The point of view presented in this paper does not dispute such arguments, nor does it offer new concepts for dealing with the practice of surrogacy. It rather demonstrates a shift in perspective in order to provide a broader overview about the risks of surrogacy arrangements, with a special emphasis on the responsibilities in relationships that are often subverted in commercial surrogacy. Despite its importance, the role of the commissioning parents in particular receives little attention in ethical discourse. This is surprising insofar as without the parents-to-be, the demand for surrogacy arrangements would not exist, and the ethical debate would appear more or less redundant. New forms of relationships are born in the context of ARTs—such as the one between surrogates and the commissioning parents—but the allocation of responsibilities remains unclear. This gap can be filled by Levinas’ arguments about relationships of responsibility. First of all, he shows that relationships constitute the self as moral or ethical. Being dependent on others is not a form of oppression but rather the condition for understanding the capacity of accepting responsibility. Furthermore, relationships of responsibility are not restricted to dyadic and personalities, because, particularly today, the parties involved in relationships are numerous, and people are indissolubly bound to each other as a result of global interdependence . Although relationships exhibit different modes of actualising responsibilities, this does not diminish the responsibility per se. In addition to this phenomenological description of relationships, Levinas can be read as a critical voice on the idea that international regulation is the main issue in the context of surrogacy. From Levinas’ standpoint, such an argument obfuscates the real search for justice, which must be located in the self and its responsibility. Being ethical is nothing definitive, but rather an individual’s endless search for an adequate way of being-for-the-Other. All these deliberations coincide with a reading in terms of the ethics of care insofar as revealing the need to take on responsibility can be read as a first step in overcoming the “crises of care” (Parks 2010 )—as Jennifer Parks characterises the practice of surrogacy.

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Elizabeth and William Stern entered into a surrogacy contract with Marybeth Whitehead. In 1986 Whitehead gave birth to a girl, Baby M, but was unable or unwilling to surrender the child to the Sterns. As William Stern was the legal father of the child, having provided the sperm, and Marybeth Whitehead the biological and genetic mother of the child, a court battle over custody extended over several years.

For the different facets of exploitation in surrogacy arrangements, see Wertheimer ( 1992 ).

Commodification is the idea that the norms of the market are appropriate for regulating its production, exchange and enjoyment. Critics regard this as a fatal economisation of the social. cf.: Anderson ( 1990 ).

One of the main medical risks of surrogacy is the caesarean delivery that is often forced onto the surrogate in order to accommodate the paying couple. See: Knoche ( 2014 ).

Of course, it can also be argued that the infertile woman who seeks a child is a potential victim of power relations in our society as she is expected to use all available reproductive technologies to fulfil her dream of her own child.

Even Martin Heidegger, with whose philosophy Levinas was well acquainted, characterises the ontological structure of the human being (Dasein) as relationality, the “being-with” (Mitsein), in his book Being and Time . The Other contributes significantly to the development of the self. On Heidegger’s relationality, Freeman writes: “Human beings are constituted by their relational, ontological structure of Mitsein, which is neither added on to Dasein as an afterthought nor derivative of it” (Freeman 2011 , p. 368). Levinas goes far beyond considering being-with (Mitsein) as a phenomenon in which the self is found. Levinas characterises the relationship to the Other as an ethical relationship which challenges the self in itself and in which the self is continuously searching for the appropriate response to the needs of the Other. While for Levinas, the relationship to the Other is essential for selfhood, Heidegger concentrated on the significance of the world and the Other for the Dasein of the self in its mineness (Jemeinigkeit).

This concept is criticised by Derrida: “The Other cannot be absolved of a relation to an ego from which it is other; it cannot be absolutely Other.” Compare: Bernasconi ( 2000 ).

For example, in the case of Baby Manji, the Japanese commissioning parents divorced during the pregnancy and rejected their child. Ultimately, the grandmother adopted Baby Manji—otherwise the Baby would have remained parentless and stateless.

Most authors describe the third as Levinas’ concept of the political sphere. See: Bedorf ( 2003 ); Caygill ( 2002 ); Delhom ( 2000 ); Simmons ( 1999 ).

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• Cite this Page Krause F. Caring Relationships: Commercial Surrogacy and the Ethical Relevance of the Other. 2017 Jul 20. In: Krause F, Boldt J, editors. Care in Healthcare: Reflections on Theory and Practice [Internet]. Cham (CH): Palgrave Macmillan; 2018. doi: 10.1007/978-3-319-61291-1_6
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3 Things You Should Know About Surrogacy Telling the Truth about Surrogacy in the United States State-by-State Summary of Surrogacy — ***Newly Updated*** 3 Things You Should Know About Third Party Assisted Reproduction #StopSurrogacyNow Mother/Child Separation and Trauma

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Surrogacy: A 21st Century Human Rights Challenge The growing surrogacy phenomenon in which women agree to have their bodies used to undergo a pregnancy and give birth to the resulting baby is becoming a major issue of the 21st century. Surrogacy is often referred to as “womb renting” wherein a bodily service is provided for a fee. The practice is fraught with complexity and controversy surrounding the implications for women’s health and human rights generally. Society is only beginning to grapple with the issues that it raises. Increasingly, surrogates function as gestational carriers, carrying a pregnancy to delivery after having been implanted with an embryo. Since the surrogate usually has no biological relationship to the child, she has no legal claim and the surrogate’s name does not appear on the birth certificate. In the United States there is no national regulation of surrogacy and its fifty states constitute a patchwork quilt of policies and laws, ranging from outright bans to no regulation.

A few of the many issues raised by surrogacy include: the rights of the children produced; the ethical and practical ramifications of the further commodification of women’s bodies; the exploitation of poor and low income women desperate for money; the moral and ethical consequences of transforming a normal biological function of a woman’s body into a commercial transaction.

The lack of national laws or regulation of surrogacy in the United States is cast against a backdrop of rising usage. The American Society for Reproductive Medicine reported a 30% increase in surrogate births between 2004 and 2006, for a total of 1,059 live births in 2006, the most recent year for which it could provide data. Industry experts estimate that the actual number is  much  higher since many surrogate births go unreported.

A fertility-industrial complex has been created to cater to the 8 million infertile women in the United States alone, who are spending approximately $3 billion a year to try to help themselves conceive. Even though the cost to the intended parent(s), including medical and legal bills, runs from $40,000 to $120,000, the demand for qualified surrogates is well ahead of supply. The surrogate herself typically is paid $20,000 to $25,000 in the U.S., which averages approximately $3.00 per hour for each hour she is pregnant, based on a pregnancy of 266 days or 6,384 hours.

In surrogacy, the rights of the child are almost never considered. 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. In addition, the child has no right to information about any siblings he or she may have in the latter instance.

Surrogacy is another form of the commodification of women’s bodies. Surrogate services are advertised, surrogates are recruited, and operating agencies make large profits. The commercialism of surrogacy raises fears of a black market and baby selling, of breeding farms, turning impoverished women into baby producers and the possibility of selective breeding at a price. Surrogacy degrades a pregnancy to a service and a baby to a product.

The Center for Bioethics and Culture (CBC) has been in the forefront of the movement demanding morally responsible science for over a decade. We call for a cessation of this practice that exploits women’s bodies and endangers their health, disregards the human rights of the children produced, and commodifies human life, turning the miracle of birth into just another commercial transaction and business opportunity for endless profit generation.

Kelly Martinez on South Dakota’s House Bill 1096 (2020) Jennifer Lahl on South Dakota’s House Bill 1096 (2020) Jennifer Lahl on Washington State’s Uniform Parentage Act (2018) Jennifer Lahl to the Minnesota Legislative Committee on Surrogacy (2016) Matthew Eppinette to the Minnesota Legislative Committee on Surrogacy (2016) Kathleen Sloan on Washington, D.C. Surrogacy Parenting Agreement Act of 2013 Jennifer Lahl on Washington, D.C. Parenting Agreement Act of 2013  and  an addendum to testimony Jessica Kern on Washington, D.C. Surrogacy Parenting Act of 2013 Statement on NJ Gestational Carrier Agreement Act (2012)

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Here is  a one-page fact sheet  on the drugs that are commonly used for women in gestational surrogacy pregnancies. It includes a list and brief discussion of the drugs commonly used to prepare the surrogate for embryo transfer.

Think Again: A Study Guide on the Legal, Medical, and Ethical Questions of Third Party Reproduction  is intended for a wide audience as we aim to meet the needs of high school groups, university students, law groups, church groups, and any other group interested in the issues of third party reproduction. Most importantly, the study guide is available for  FREE  in order to maximize distribution and use.  You can download it here .

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It is unclear what proper remuneration for surrogacy is, since countries disagree and both commercial and altruistic surrogacy have ethical drawbacks. In the presence of cross-border surrogacy, these ethical drawbacks are exacerbated. In this article, we explore what would be ethical remuneration for surrogacy, and suggest regulations for how to ensure this in the international context. A normative ethical analysis of commercial surrogacy is conducted. Various arguments against commercial surrogacy are explored, such as exploitation and commodification of surrogates, reproductive capacities, and the child. We argue that, although commodification and exploitation can occur, these problems are not specific to surrogacy but should be understood in the broader context of an unequal world. Moreover, at least some of these arguments are based on symbolic rhetoric or they lack knowledge of real-world experiences. In line with this critique we argue that commercial surrogacy can be justified, but how and under what circumstances depends on the context. Surrogates should be paid a sufficient amount and regulations should be in order. In this article, the Netherlands and India (where commercial surrogacy was legal until 2015) are case examples of contexts that differ in many respects. In both contexts, surrogacy can be seen as a legitimate form of work, which requires the same wage and safety standards as other forms of labor. Payments for surrogacy need to be high enough to avoid exploitation by underpayment, which can be established by the mechanisms of either minimum wage (in high income countries such as the Netherlands), or Fair-Trade guidelines (in lower-middle income countries such as India). An international treaty governing commercial surrogacy should be in place, and local professional bodies to protect the interests of surrogates should be required. Commercial surrogacy should be permitted across the globe, which would also reduce the need for intended parents to seek surrogacy services abroad.

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Introduction

Surrogacy occurs when a woman gestates and gives birth to a child for the intended parents. Footnote 1 The surrogacy process is beneficial for parents who are unable to procreate, but it is riddled with ethical challenges. Where surrogacy is permitted, a subject of ongoing debate is the question of proper remuneration for surrogates. Surrogacy remuneration generally comes in two forms: altruistic (unpaid) surrogacy and commercial (paid) surrogacy. In an altruistic arrangement, the surrogate may not be compensated above and beyond expenses related to the pregnancy. The surrogate is entirely motivated by altruism, to help an infertile couple fulfill their wish for a child (Caelers 2001 ; Leeton et al. 1988 ). In a commercial arrangement, the surrogate is paid a fee on top of direct expenses. Often an agency is involved in matching up surrogates to intended parents and making sure the whole process runs smoothly. While most countries only allow altruistic surrogacy, or ban surrogacy altogether, commercial surrogacy is ever-present. Further, legislative and cost disparity between nations creates room for cross-border surrogacy (CBS), which is when people travel to other nations to access surrogacy services. While the debate about remuneration for surrogacy has been going on for a few decades, many countries have still not addressed the issue or are reconsidering their laws. Further, CBS has increased by large amounts in recent years (Merchant 2018 ), but international legislation (agreements, treaties, etc.) have not followed (Humbyrd 2009 ).

Both commercial and altruistic surrogacy have ethical drawbacks. Lack of payment could be exploitative (Wertheimer 1992 ; Wilkinson 2003 ) and could restrict reproductive autonomy (Andrews 1988 ; Lawrence 1991 ). However, paying someone to carry a child and subsequently give it up might also be wrong because of the possibility of exploitation by coercion (Wilkinson 2018 ) and commodification of reproductive labor, women, and children (Anderson 1990 ; Holder 1984 ; Radin 1987 ; Sandel 2013 ; Timms 2018 ). CBS exacerbates these ethical issues, especially when the intended parents are from a high-income country (HIC) and the surrogate is from a low- or middle-income country (LMIC). As predicted in Gena Corea’s 1985 dystopic novel The Mother Machine, CBS is criticized as a practice in which the bodies of poor women from developing countries are routinely instrumentalized for the benefit of richer people in the developed world, and for the profit of the global fertility industry (Gupta 2012 ). Most scholars agree that there are ethical issues with international commercial surrogacy, but whether or not the commercial aspect is the problem is up for debate (Spar 2005 ; Wilkinson 2003 ). Critics of commercial surrogacy tend to draw on negative imagery and symbolic rhetoric to paint a picture of commercial surrogacy as inherently unethical, without addressing ethical issues systematically (Andrews 1988 ). Meanwhile, ethical analyses of commercial surrogacy tend to make normative claims using theoretical, western ethics, without invoking analyses of the real-world experiences of surrogates in non-western countries (Bailey 2011 ). To find a middle ground between these extremes, we conduct an ethical analysis of this issue, taking into account the effect of context on what ethical remuneration would be. This provides insight into what kind of action is necessary from HICs, and LMICs, in order to mitigate ethical issues surrounding remuneration in the international surrogacy market. Following the publication of a letter of the Indian Ministry of Home Affairs in 2015, CBS was prohibited in India, but until then CBS was widely prevalent in the country. It is therefore, and also since there is more documentation on the Indian context than there is on other countries allowing CBS, that we choose India as case example, despite the 2015 ban.

The Netherlands and India as case examples

The Netherlands is a classic example of a western country which prohibits commercial surrogacy, only allowing altruistic surrogacy under strict-conditions (Boele-Woelki and Vonk 2012 ). Despite the aversion of the government towards commercial surrogacy, there has been discussion about loosening restrictions in the Netherlands, in part to prevent Dutch intended parents from going abroad to access surrogacy. The 2016 report from the Staatscommissie Herijking Ouderschap (Government Committee on the Reassessment of Parenthood, from now on GCRP) included a proposal for legislative change, including a statutory framework for surrogacy, which would make surrogacy easier to do, and would allow surrogates to be paid a maximum of €500 per month (on top of expenses). In 2019, the Dutch minister of Legal Protection responded to the report, rejecting the suggestions from the GCRP for allowing paid surrogacy (“Dutch government reaction to recommendations of GCRP 2019 ; Ministry of Justice and Security. 2019 ). This demonstrates the ongoing uncertainty over whether or how much surrogates should be paid, in part because of the rise of CBS.

Up until 2015, India was a particularly popular destination for CBS. India legalized surrogacy in 2002 in order to promote surrogacy tourism, as a part of its growing market for medical tourism (Gupta 2012 ; Shetty 2012 ; Vincent and Aftandilian 2013 ). 13 years later, regulations were introduced and CBS was prohibited. Up until then, clinics were free to do as they wish (Shetty 2012 ). Earlier guidelines from the Ministry of Health and Family Welfare, which were put forth in 2008 by the Indian Council of Medical Research, were not binding and were accused of promoting ART rather than regulating it (Bailey 2011 ; Vincent and Aftandilian 2013 ). Up until recently, the profit-seeking mechanisms governing the fertility industry, in the context of widespread poverty, could have created a situation where exploitation and commodification of women were more likely (Vincent and Aftandilian 2013 ; Timms 2018 ). For these reasons, prohibitions on commercial surrogacy were suggested (Gupta 2012 ). In 2015 the ministry’s letter mentioned above effectively put an end to commercial surrogacy and CBS. In 2016 a ‘surrogacy regulation bill’ was issued by the Lok Sabha, the lower house of the Indian parliament. After the bill lapsed that same year, the Lok Sabha passed it in 2019. The bill now awaits passing by the Rajiya Sabha, the higher house of the parliament. Only after the higher house passes the bill will it become national law. It prohibits foreign nationals from commissioning surrogacy in India and exclusively reserves surrogacy for Indian, heterosexual, sub-fertile couples with a minimum of five years of marriage who will engage in an altruistic arrangement (Timms 2018 ). Below, we claim that it is not clear that the issues leading to the ban are inherently tied to the commercial aspect of surrogacy, demonstrating the need for a thorough ethical analysis. Instead of prohibiting commercial surrogacy and CBS outright, we propose regulations in order to prevent exploitation and commodification.

Is commercial surrogacy inherently wrong? an ethical analysis

The exploitation argument against commercial surrogacy.

It is argued that paying women for surrogacy is exploitative. If it is exploitative, then, one uses a surrogate as a means unjustly or under conditions such that the surrogate does not consent (at least not validly) (Wertheimer 1992 ). For a surrogate to be unjustly used as a means, the effects on her welfare must be more negative than justice allows, which could mean the surrogate is harmed, or that she does not benefit sufficiently (Wilkinson 2003 ). Clearly harm to the surrogate is not the issue in this argument, since altruistic surrogacy is still seen as acceptable. Then, the surrogate may be unjustly used as a means if she is underpaid, which would occur if the physical and psychological risks to the surrogate are not properly compensated in relation to the benefit to the intended parents. This would mean the exploitation argument actually favors commercial surrogacy and higher payments to surrogates over altruistic surrogacy. But even with commercial surrogacy, exploitation by underpayment can happen. In India, the surrogate’s altruistic motivations and maternal duties used to be continually reiterated by surrogacy brokers to intimidate her to not demand higher payments or voice her concerns (Dabriak et al. 2007 ; Gupta 2012 ; Pande 2010 ). There was unequal bargaining power between the wealthier intended parents and the poor (and sometimes illiterate) surrogate (Lee 2009 ). Surrogacy contracts involved cross border clients and Indian slum-dwellers, giving rise to extreme polarization (Timms 2018 ). Regulations requiring sufficient, fair payments to surrogates would solve this problem.

Of course, the focus of the exploitation argument against commercial surrogacy is not that surrogates are underpaid. Exploitation, they argue, still occurs if the validity of consent is compromised by the coercive effect of the payment (Wilkinson 2003 ). If the pay is too high, there is a risk that surrogacy would become too attractive and poor women would become surrogates out of desperation for money (Brazier et al. 1998 ). This was particularly relevant in India where most Indian surrogates used to say that they were primarily financially motivated (Pande 2009 ). This is in contrast to the U.S., where surrogates (even those in commercial arrangements) cite altruism as their primary motivation (Ragoné 1994 ; Ciccarelli and Beckman 2005 ; Jadva et al. 2003 ). This worry of wrongful financial inducement is widespread. But, if a payment induces the desire to become a surrogate, it does not immediately follow that it is exploitation. If one makes a decision to do something merely because it will benefit her, which is the case for nearly all jobs that a person might accept, this doesn’t lead us to conclude that we should not pay her for that job or that we should pay her less (Crozier 2010 ; Humbyrd 2009 ; Wilkinson 2003 ). Coercion generally means that one threatens to make another worse off if they do not perform some act (Wertheimer 1992 ). Paying someone who voluntarily chooses to be a surrogate does not fall under this category. But, omissive coercion, Wilkinson adds, occurs when someone threatens to not benefit someone in a way that they are owed, unless they perform some act ( 2003 ). Since society, or the state, likely owes a woman some standard of welfare (survival at the minimum), and if surrogacy or something worse is the only way to achieve that standard, then she is essentially threatened with starvation if she doesn’t do it (Wilkinson 2003 ). Then, her consent would be invalidated by the fact that she is coerced into being a surrogate to get benefits which she is owed regardless, which would be exploitation.

However, as Wilkinson points out, any transaction could in principle be exploitative. The question is whether or not there is something inherent to surrogacy that makes it necessarily exploitative (Wilkinson 2003 ). This does not seem to be true, since even in the case of exploitative surrogacy given above, it is no more exploitative than other low-paying jobs like factory work (Crozier 2010 ; Humbyrd 2009 ; Wilkinson 2003 ). One could argue that surrogacy is different from other jobs because of the increased physical and psychological risk associated with surrogacy. But, this implies the assumption that women cannot weigh the risks of surrogacy against the benefits of payment (Humbyrd 2009 ), and it does not take into account the risks associated with poverty or with other jobs available to them (Purdy 1989 ). As one Indian surrogate explained in an interview (before the 2015 regulations were put in place), “This is not exploitation. Crushing glass for 15 h a day [earning $25 a month] is exploitation” (Haworth 2007 ).

If societal circumstances create a situation in which a person must resort to a job that they otherwise wouldn’t, then banning that option only makes the person worse off (Spar 2005 ; Wilkinson 2003 ). Instead of constraining poor women further, we should work to provide them with adequate social services and more options on the labor market so that their other alternatives might be more appealing than something dangerous or harmful (Andrews 1988 ; Crozier 2010 ). Lupton agrees, commenting, “[T]hose who are outraged by this approach should bear in mind that this is the natural consequence of an unequal society, and if we cannot save people from being poor it makes no sense to stop them from making sacrifices to alleviate their situation merely because we are appalled at the nature of those sacrifices” ( 1986 , p. 151). It then becomes clear that the exploitation issue arises not because of the nature of commercial surrogacy, but because of the nature of an unequal society.

The commodification argument against commercial surrogacy

Even if a surrogate is not exploited, because she freely consents to this option and is well-paid, it has been argued that commercial surrogacy is still wrong because it improperly treats reproductive labor, women, and children as commodities (Anderson 1990 ; Holder 1984 ; Radin 1987 ; Sandel 2013 ). We address these three forms of commodification separately. In general, if it would be unethical to apply market norms to the production, exchange, and use of a good, then it is not a commodity, and to treat it as such is to value it inappropriately, which degrades or corrupts it (Anderson 1990 ).

Commodification of women’s reproductive labor

Anderson argues that women’s reproductive labor is improperly treated as a commodity in commercial surrogacy, because the surrogate’s labor is alienated ( 1990 ). According to Anderson, the proper end of a pregnancy is an emotional bond between the mother and the baby, and so paying her to repress the formation of that relationship is wrong ( 1990 ). We would respond that it is clear that commercial surrogacy commodifies reproductive labor, but it is not clear that there is anything ethically problematic about this. Other kinds of labor are commodified, and this is not deemed as improper commodification. The argument that women’s reproductive labor is different in a relevant way rests on norms about what the proper ends of pregnancy and childbirth are—that the bond between a woman and the baby she births is somehow sacred or untouchable. But, those norms are either derived from some social convention (which could be countered with other social conventions) or from its essential nature (which rests on some metaphysical or religious view) neither of which hold (Sandel 2013 ). It is an example of an argument that rests on symbolic rhetoric rather than logical argumentation or evidence.

Clearly there is no way to be sure that reproductive labor is special in some way such that it is degraded if it is commodified. As Spar points out, this is merely an assertion, not a fact ( 2005 ). If moral limits to the market do exist, there should be good reasons for drawing the line in a particular place, and there are not good reasons for excluding reproductive labor from the market domain.

Commodification of women

It is well-established that human beings themselves are degraded if they are commodified. This rests on the Kantian argument that humans have an inherent dignity which must be respected, and in order to respect it, humans must be treated as ends in themselves, never as a means only. Anderson (and others) argue that commercial surrogacy commodifies—and therefore degrades—women themselves. One way this occurs is through the manipulation of the surrogate to the point of dehumanizing her (Anderson 1990 ). Pande has illustrated this trend in her reports from research interviews with surrogates in India. Before the 2015 ban, the surrogates were often restrained in hostels, where their eating, drinking, and exercise was overseen by the hostel leaders, and they were allowed to see their family once a week or less (Pande 2010 ). They were psychologically manipulated by being repeatedly told that they were disposable wombs, merely vessels for carrying the fetuses, that they should not form a bond with the child and would not be allowed to even look at the child after giving birth (Pande 2010 ). They had little say over what happened to them and their bodies throughout the surrogacy process, which reflected a gross disregard for their autonomy (Gupta 2012 ; Vincent and Aftandilian 2013 ). This manipulation and control of surrogates was done for the commercial benefit of the brokers, who made more money if they were able to produce a healthy child for the intended parents without any setbacks (Bailey 2011 ; Gupta 2012 ).

This kind of dehumanizing treatment of surrogates is degrading to women, since their interests and ends are not respected. It was the main reason for the Indian government to issue the 2015 letter. But, even though we agree self-evidently with the Indian authorities that degrading and manipulating women is unethical and should be stopped, we must ask the question whether this is a necessary consequence of commercial surrogacy? If commercial surrogacy can occur in HIC’s such as the U.S. without restraining the autonomy of surrogates and treating them as disposable resources, the same should be possible in India and around the globe. Surrogates were degraded by the rhetoric used by the hostel leaders and brokers, not the surrogacy process itself. The problem stems from the profit-seeking mechanisms governing the industry. While leaving the market totally subject to free-market norms may undoubtedly lead to a lack of respect for the interests of surrogates, regulations to ensure their interests are respected (rather than prohibition) could solve this.

Commodification of children

Anderson further argues that surrogacy improperly treats children as commodities. The surrogate creates the child with the intention to give it up, for monetary advantage, in the interests of herself rather than those of the child (Anderson 1990 ). Sandel agrees that there is something wrong with commercial surrogacy since it is analogous to baby-selling ( 2013 ). In the famous case of Baby M, in which the surrogate claimed that she had rights to the child after giving birth, the supreme court of New Jersey (U.S.A.) invalidated the contract on the grounds that it was “the sale of a child, or at the very least, the sale of a mother’s right to her child…There are, in a civilized society, some things that money cannot buy” (Matter of Baby M 1988 , p. 1248).

This is another argument based on symbolic rhetoric rather than logical argumentation or evidence. Supporters of commercial surrogacy respond by resisting this analogy. They argue that the payment is only for the time, effort, pain, and risk that the surrogate undergoes in carrying and giving birth to the child (Lawrence 1991 ). This can be ensured by requiring that the surrogate is paid each month, regardless of the outcome of the pregnancy (as suggested by the GCRP in the Netherlands). Since the pregnancy is planned by both parties who have the child’s best interests at heart, then it is not the same as the sale of an existing unwanted child (Lupton 1986 ). Paying other people for services that enable one to create and deliver one’s (own) child is a normal part of procreation; one might also pay a doctor to deliver fertility hormones, artificially inseminate, or perform a needed C-section (Andrews 1988 ). Accordingly, there is no evidence to suggest that parents treat their children as products or commodities after paying for surrogacy (Tong 1990 ).

Even if children are not being bought and sold per se, part of the aversion to commercial surrogacy is the cultural conception that children are priceless, and that it is therefore distasteful to place a monetary value on them (Ragoné 1994 ). Altruism (thus, the gift rhetoric) seems like the only appropriate way to handle the exchange of something priceless (Shaw 2007 ). This, too, is an argument based in symbolic rhetoric rather than logical arguments or evidence. Payment and altruistic motivation are not mutually exclusive (Van Zyl and Walker 2013 ). So, the pricelessness of children can still be honored by altruistic intention even if the surrogate is paid.

Benefits of commercial surrogacy

Avoiding exploitation by underpayment.

Most opponents to commercial surrogacy still find altruistic surrogacy to be acceptable, or even praiseworthy (Annas 1988 ). While the image of a surrogate as a selfless, altruistic saint is heartwarming, it can lead one to be blinded to the ethical issues with altruistic surrogacy. Not paying surrogates for the risks and labor involved in surrogacy is arguably exploitative (Van Zyl and Walker 2015 ). The surrogate’s gift is so substantial, in the sense that it causes a lot of pain and discomfort, and also in the sense that it creates a human child. To not reciprocate in some way could potentially subject her to self-sacrifice (Van Zyl and Walker 2013 ). Self-sacrifice is morally unacceptable because it reinforces the idea that the needs of the intended parents are more important than those of the surrogate, which is exploitative (Badcock 1986 ).

Viewing surrogacy as a gift relationship can also “obscure, or at least shifts the attention away from, the fact that the [surrogate] incurs a number of obligations towards the intending parents and the [fetus]” (Van Zyl and Walker, 2013 , p. 376). The intended parents may feel uncomfortable voicing their concerns since the surrogate is giving them such a substantial gift. On the other hand, if the surrogate takes her moral obligations seriously, then she is at the mercy of the intended parents (Van Zyl and Walker, 2013 ). This relationship, if solely based on trust, can be dangerous. Further, if the surrogate’s motivations are defined as purely altruistic, then it serves to reduce her bargaining power (Drabiak et al. 2007 ). Commercial surrogacy, when properly regulated, involves a contract which stipulates all the rights and responsibilities of each party, making it clear that the surrogate cannot harm the fetus, and that she deserves adequate compensation for her labor (Van Zyl and Walker 2015 ). This is not to say that altruistic surrogacy is inherently unethical, but, altruistic surrogacy as the required format is problematic. The option to draw up a contract and receive adequate payment should be made available to every surrogate, and if she voluntarily turns down payment, that is of course her privilege.

Autonomy of intended parents and surrogate

Commercial surrogacy is one way of creating the opportunity for intended parents to fulfill their wish for a child. This supports the concept of procreative choice or autonomy, a right protected by the Californian constitution, for example (Lawrence 1991 ). The fact that intended parents go to such lengths to engage in CBS and recruit surrogates in other countries, which can be risky, is a testament to the strength of their desire to procreate. Respecting autonomy would mean facilitating this desire in a safe way. It is apparent that, in many countries, restrictions on accessing assisted reproductive services are discriminatory towards people who are unmarried and/or LGBTQ + . The 2019 surrogacy regulation bill in India includes such restrictions, which demonstrates that the law is not only intended to protect surrogates but also to restrict procreative autonomy. Allowing commercial surrogacy for all desiring parents, and with it some kind of agency that recruits surrogates and pairs them with intended parents, would make it far easier for intended parents to achieve their procreative plans.

Allowing commercial surrogacy also promotes the autonomy of surrogates. It is sexist and paternalistic to assume that women cannot make the decision to engage in certain practices for money (Andrews 1988 ). It is therefore ironic that feminists have argued against commercial surrogacy on the basis of harm to women, when it has been central to the feminist movement “that women have a right to reproductive choice—to be able to contracept, abort, or get pregnant… to control their bodies during pregnancy... to create non-traditional family structures… These rights should not be overridden by possible symbolic harms or speculative risks” (Andrews 1988 , p. 73).

The assertion that commercial surrogacy promotes autonomy for surrogates might seem contradictory to the claim that Indian surrogates are more likely to have their autonomy restricted by surrogacy brokers and economic duress. This is why we stress the importance of context in assessing the ethicality of commercial surrogacy. Bailey makes a good point that extending western moral frameworks, particularly those that focus on autonomy, choice, and liberalism, can erase or distort the experiences of subjects in non-western countries who may not place the same value on concepts like autonomy ( 2011 ). Pande points out that most Indian surrogates, up until 2015, in fact, downplayed the role of choice in their decision to become surrogates, by saying it is their motherly/familial duty ( 2010 ). While this may serve to minimize their role as money-makers for their family, it is one form of resistance that reinforces their self-worth (Pande 2010 ). Further, what might be viewed by outsiders as autonomy-restricting prisons, the surrogacy hostels were also seen as safe spaces where surrogates ccould gain skills for future employment, build networks with the women around them, and use their combined power to protect each other’s interests (Pande 2010 ). Many Indian surrogates also found the surrogacy process to be empowering, even if only because they could make enough money to lift themselves and their families out of poverty (Spar 2005 ). This is an important illustration of the complexity of the real-life experiences of surrogates, demonstrating that parts of their story may contain oppression and others empowerment. By engaging with the first-hand narrative of surrogates in India, prohibition of commercial surrogacy does not necessarily follow. Rather, proper regulations could have the potential to ensure that Indian surrogates are empowered rather than oppressed.

Regulating payments for surrogacy in different contexts

Surrogacy as labor.

We have argued that it is not wrong to commodify women’s reproductive labor, and one of the reasons surrogates are exploited and wrongly commodified is because surrogacy is not treated as a legitimate form of labor. In India, where surrogacy used to be referred to as prostitution and stigmatized, the surrogates often had to hide the fact that they were becoming surrogates from their extended families and communities, and they reiterated their altruistic intentions and duties to avoid being considered selfish (Pande 2010 ). If reproductive work were seen as a legitimate avenue for earning money, the stigma and instrumentalization would be reduced. Surrogates might be viewed more like healthcare workers or temporary guardians than dehumanized incubators (Humbyrd 2009 ).

Van Zyl and Walker argue that the issues with altruistic and commercial surrogacy can be addressed by using the professional model ( 2013 ). In this model, it is accepted that surrogates might be motivated by their desire to offer a worthwhile service while still expecting to be paid. Professionals, such as teachers and nurses, share a strong ethical dimension to their work (Carr 1999 ), which requires them to harbor some internal motivation (beyond payment alone) to perform their job well. Surrogacy also contains this ethical dimension, which is one reason it is suitable to consider it a profession. Then protections can be granted by regulatory bodies that oversee surrogacy, similar to those overseeing other professions. But, professional unions would not be enough to govern surrogacy in the international market. Internationally upheld regulations to ensure surrogates are protected and well-paid in all places are necessary.

Ethical payment in the Netherlands: minimum wage

In the Netherlands, the GCRP suggests that a fair maximum payment would be €500 per month, on top of immediate expenses, amounting to about €5000 total. This amount was calculated as a scaled-up version of what egg donors are paid for their time and effort in the Netherlands, which is €900 for one donation cycle. However, that number is not necessarily sufficient. In the U.S., surrogates are paid between US$10,000 and $40,000, while U.S. egg donors are paid around $4000 for one cycle (Covington and Gibbons, 2007 ). The egg donation payment guidelines were originally set as a scaled-up version of sperm donor compensation of $75–$100 per sperm sample (Krawiec 2014 ). Then, the compensation level for surrogates is arbitrary because it is far removed from the original deciding factor (the amount of time spent on a sperm donation).

The problem is that the discussion operates around a maximum payment in the first place. It has been established that coercion by high payment is possible in places with extreme financial inequality and lack of support for the very poor, but even in those situations, paying them less would actually be more exploitative. In the Netherlands, social welfare programs are adequate and background conditions are relatively fair. If we accept that surrogacy is a legitimate form of work, in line with the professional model proposed by (van Zyl and Walker 2013 ), then a minimum wage needs to be honored.

But, the GCRP still wants to keep surrogacy altruistic, while establishing the maximum payment per month as a suitable gift for reciprocating the altruism of the surrogate. It appears that the Dutch conception that surrogates should not be paid a livable wage stems from the concept – whether social, metaphysical, or religious—that reproductive labor is somehow special, and so it should not be commodified like other kinds of labor. But, as we have seen, this argument has no logical or evidential basis. Since underpayment is the only relevant ethical issue in the Netherlands, surrogates should be paid full-time minimum wage for every month that they are engaged in the surrogacy process—that includes the time before and after the pregnancy during which they undergo medical appointments, implantation, recovery, etc. Of course, this does not take into consideration the fact that the labor of surrogates occurs 24 h per day, not only during an 8-h workday. But, given that a surrogate can for the most part continue to do other activities during the pregnancy, it seems that full time (8-h per day) minimum wage would be sufficient to honor her efforts, since it would be the same amount she could make if she were to work a different job during this time. In the Netherlands, the minimum wage for persons over 22 years old is about €1600 per month (January 2019), which would result in a minimum payment of about €16,000 total for the pregnancy (equivalent to almost US$18,000).

In addition to paying the surrogates well, additional requirements for the protection of surrogates need to be in place to prevent ethical problems unrelated to payment. The GCRP suggests requirements such as independent legal representation for the surrogate, insurance policies (including life insurance) to be taken out in case of harm to the surrogate and/or to the intended parents, psychological/medical screening of the surrogate, and required counseling for the surrogate, before, during, and after the pregnancy (GCRP 2016 , Ch. 11.4).

Ethical payment in India: fair trade

Unethical payment by brokers and other third parties, who profited themselves as much as possible but exploited the surrogates paying them only a minimum amount of money, was a main reason for the Indian authorities to ban commercial surrogacy (cfr. Timms 2018 ). We agree with the authorities and other spokespeople that exploitation by third parties is unethical and should be stopped, but not by prohibiting commercial surrogacy outright. Ensuring ethical payment and treatment of surrogates in India, and other LMICs, is complicated but not impossible. CBS makes it unclear how much surrogates should be paid since the value of the payment is different for the intended parents than for the surrogate. While minimum wage might be an appropriate mechanism to ensure fair wages for surrogates in the Netherlands, it is not sufficient in India and many other LMICs. This is because minimum wage in India varies by region and industry, and some industries do not adhere to a minimum wage, such as the apparel and footwear industries (U.S. Department of State 2008 ). For example, the minimum wage for agriculture workers in Maharashtra, is only 100 INR (US$1.40) per day Footnote 2 (GOI 2015 ), and 33% of India was making less than $1.25 per day in 2010 (Marriner 2012 ). This is remarkably low, considering that the international poverty line, under which a person is considered to be in extreme poverty, is US$1.90 per day (United Nations Sustainable Development Goals (SDGs). 2019 ). Finding solutions for widespread poverty and low wage-rates is beyond the scope of this paper, but exploitation should be avoided wherever possible. Particularly in the case of outsourced labor, workers in LMICs are exploited when they are paid much lower real wage rates Footnote 3 than workers in HICs would be paid for the same work. These are the issues with the fertility industry that need to be addressed in regulating payments to surrogates.

One mechanism that is widely utilized to avoid exploitation of workers in the global labor market, particularly in the agriculture industry, is Fair Trade. According to The World Fair Trade Organization (World Fair Trade Organization (WFTO), 2017 ): "Fair Trade is a trading partnership, based on dialogue, transparency and respect, that seeks greater equity in international trade. It contributes to sustainable development by offering better trading conditions to, and securing the rights of, marginalized producers and workers—especially in the South.” Humbyrd suggests extending the mechanisms of Fair Trade to the international surrogacy market ( 2009 ).

The first principle of Fair Trade that is addressed by Humbyrd is payment of a fair price. This requires equivalent real wage rates to what surrogates are paid elsewhere, payments that are a justifiable proportion of what the fertility clinic/broker makes from the surrogacy, and payments given regardless of the outcome of the pregnancy. Fair payment, according to the WFTO, is at least the Local Living Wage. This minimum requirement to meet the principle of fair payment is in line with our suggestion of requiring minimum wage in HICs, which is (at least in principle) calculated in accordance with the cost of living in those HICs. Most surrogates in India were already paid more than a local living wage. Most of them made in 10 months as a surrogate more than they would have otherwise made in 3–15 years of work (Gupta 2012 ). The average amount of $5000 earned by a surrogate in India comes out to over 12 × the above-poverty-level wage of $1.90 per day.

However, Fair Trade is still necessary, since a living wage is not the only factor that makes it a fair wage. It also needs to be a “freely negotiated and mutually agreed wage,” and it needs to represent an “equitable share of the final price paid to each player in the supply chain” (WTFO). This means it is necessary that surrogates are a part of the discussion about how much they are going to be paid, which was not happening in India when commercial surrogacy was legal (Singh 2014 ). Regulations should require that the contract is translated and that direct interaction with the intended parents is permitted and facilitated. There should be a third-party organization, such as a professional union, which can process complaints from surrogates and can provide independent legal protection of surrogates, at the expense of the intended parents (Vincent and Aftandilian 2013 ). A fair wage also means that profits to clinics and brokers must not be raked in without sufficient benefit to the surrogates, and so some percentage of the total payment should be ensured to the surrogate. If a third-party protects the surrogates’ interests, payments to surrogates will occur regardless of the outcome of the pregnancy, and if her ability to negotiate her wage is ensured, then attempts to reduce the surrogate’s agency by instrumentalizing her will have no place.

Humbyrd suggests making Fair Trade a strict requirement for international surrogacy, which can be enforced through checks within the immigration system that must be utilized to bring home a child born to a surrogate abroad ( 2009 ). We agree with Humbyrd’s suggestion, but we think it should be extended such that the requirements are in place even within LMICs, not just for the case of CBS. This is why we have suggested, in line with Vincent and Aftandilian, a third-party organization which protects the surrogates’ interests within the country, and membership to this organization should be a requirement for becoming a surrogate (much like a professional union), and the costs would have to be paid by the intended parents. Because it is precisely the diversity of how different countries handle surrogacy remuneration that drives this practice abroad, Spar is right in suggesting an international agreement, which could extend principles from the Hague Convention on intercountry adoption ( 2005 ).

Remaining issues ‘beyond the money’

As we have discussed, there is a form of exploitation that occurs when surrogates are coerced into becoming surrogates by their desperate financial situation. It has been established that this is not an issue inherent to surrogacy, but an issue with an unequal society (and by extension, global inequalities). One reality in India is that inequality is racially stratified, and people (especially women) with darker skin or those in “lower” castes are systematically disadvantaged (Singh 2014 ). The trend of outsourcing labor to poor countries occurs along race and class lines and thus perpetuates those distinctions on a global scale. International commercial surrogacy continues to be intertwined with unfair and racist background conditions globally, and this is not solved by regulating payments or surrogacy itself.

Bailey suggests using a reproductive justice approach in order to start the conversation about how to mitigate these ethical issues ( 2011 ). Reproductive justice does not necessarily have to come from the governments of individual countries. An international treaty governing commercial surrogacy can also require that part of the payment from intended parents goes towards capacity building and global projects in reducing inequality, maybe through the professional bodies that would oversee the regulation of surrogacy. This would hopefully open up more options for women so that the choice to become a surrogate can be freer. Allowing commercial surrogacy across nations would open up the possibility of finding a surrogate in any country, preferably one’s own country. Instead of banning commercial surrogacy outright and reserving surrogacy for Indian couples only, opening up commercial surrogacy globally might be a good alternative in order to avoid unethical exploitation. Then, given the better conditions for surrogates offered by other countries, surrogacy markets in LMIC’s might be pressured to reform, in a way that goes above and beyond the ability of outside regulation to reform it. So, while we do not find cross-border commercial surrogacy to be unethical in itself, we do think the remaining issues with the practice could be mitigated through the process of homogenizing the regulations across the world, which would in turn reduce CBS.

Commercial surrogacy is not inherently unethical, but it can lead to certain issues that need to be addressed through regulations, and context is important in addressing those ethical issues. Exploitation by coercion is not an issue with commercial surrogacy but an issue with an unequal society/world, and it occurs in all forms of low-paying labor (particularly outsourced labor). Banning commercial surrogacy would not solve this, since it would only remove this opportunity for women to alleviate their poverty. The problem that needs to be addressed instead is the desperate nature of their decisions, which must be done through broader efforts to reduce inequality. Commodification of women’s reproductive labor is a non-issue. The claim that it is degrading to pay women for this kind of labor rests only on symbolic or religious norms and not logical or evidential ones. Commodification of children is a non-issue in surrogacy because payment for the reproductive labor is necessarily different from payments for existing children. The commodification of women is an issue that needs to be addressed, particularly where women are instrumentalized by the physical and mental manipulation that treats them as disposable resources for the benefit of the fertility industry. However, it is possible to respect the interests and ends of surrogates by treating them as laborers rather than non-human resources, given specific regulations.

Not only is commercial surrogacy justifiable when properly regulated, it can also be beneficial. It avoids the issue of exploitation by underpayment and it creates clarity in the obligations of both parties. It promotes reproductive autonomy of intended parents and empowers surrogates to choose what to do with their bodies and to profit from this choice. Commercial surrogacy should be properly regulated as a legitimate form of labor. We have suggested following the professional model for surrogacy. The surrogates’ interests and negotiating power should be protected by a local, independent professional body which they are required to join. Surrogates should be paid well, and payments should be given at regular intervals across the period of surrogacy and irrespective of the outcome. What counts as just payment depends on the context. In HICs such as the Netherlands, full time minimum wage is sufficient to ensure that surrogates are compensated for their work. In LMICs such as India, minimum-wage may not be sufficient, given that it is sometimes non-existent or below poverty-level, so the mechanism of Fair Trade should instead be used. This would mean that the surrogacy industry should be required to pay surrogates a fair living wage for their region, equivalent to the real-wage rate of what surrogates in the west are paid. The wage should be mutually agreed upon and freely negotiated, and the surrogate should get a fair portion of the payment paid to the agency/broker. This would avoid exploitation by underpayment. These requirements would also mitigate the wrongful commodification of women, since it would no longer be permitted, nor beneficial, to downplay their role as agents with interests. An international treaty that requires countries to regulate their surrogacy markets to protect surrogates, in line with minimum-wage or Fair Trade, is necessary. By opening up commercial surrogacy to the world, intended parents would be less likely to engage in CBS, and so self-regulation of the market will occur in combination with outside regulations. This legitimization of the surrogacy market and regulation to avoid exploitation and commodification of surrogates can go hand in hand with the reproductive justice approach, which would give women more agency in their lives so that their decision to become surrogates can be as free as possible.

“Intended parents” refers to the party that recruits a surrogate to have a child for them, but this party may be a single person or a couple of any gender. This party is also known as the commissioning parents (particularly for commercial surrogacy), the desiring parents, or the wish-parents.

One of the reasons minimum wages are lower in particular industries is because of the inability of those industries to pay more, and regional differences are in part due to differences in cost of living (ILO 2018 ).

The real wage rate is adjusted for purchasing power, what can be bought in goods and services, with some amount of money, while the nominal wage rate is the actual amount in U.S. dollars.

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Blazier, J., Janssens, R. Regulating the international surrogacy market:the ethics of commercial surrogacy in the Netherlands and India. Med Health Care and Philos 23 , 621–630 (2020). https://doi.org/10.1007/s11019-020-09976-x

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Physician Assistant Student

Group Essay – Ethics of Surrogacy

The Ethical Complications to Surrogacy and How PA’s Can Facilitate it. 

By: Mosammat Alam, Lingqiao Chen, Daniel Crosby, Tiffany Liang, and Sophia Lobo

HPPA 514: Biomedical Ethics

Prof. Bridget McGarry

July 14, 2021

Introduction

Surrogacy has become a popular option for the LGBTQ community and families facing infertility or other conception related issues. While it provides a solution to many, the key issues arise from the lack of centralized guidelines that dictate these practices and the role of the physician in moderating these situations. Oftentimes, problems arise when individuals involved either break their contract or come across an issue not previously addressed in their contracts. The laws for surrogacy vary by state, with many having little to no guidelines to monitor these procedures. New York, for instance, has legalized and set specific guidelines on gestational surrogacy as recently as February 2021 (“The Child-Parent Security Act: Gestational Surrogacy”). What we propose is a more centralized system to facilitate surrogate practices, based on medical collaboration with legal protocols to guide the interest of the intended parents, surrogate, and fetus. 

Standardized Screening Process & Care – A Medicine Centered Approach

    The first step to starting the surrogacy process is finding a suitable surrogate mother.  Some families already have a personal connection while others may use a surrogacy agency. Currently, surrogacy agencies exist as full or partial-service establishments. A full-service agency is responsible for the screening, matching, delivery, and return-to-home plans with legal and clinical coordinations. A partial-service agency provides only some of these services with less step-by-step guidance (Mello, 2019). The main complication with these varying pathways to finding a surrogate mother is a disjunctive process with no central oversight. There is a lack of protocol in determining if a surrogate mother is suitable for carrying a baby to full-term and delivery. Furthermore, over ten percent of gestational surrogates are not properly informed of the risk of multiple pregnancies and the demands on their body (White, 2017). This presents with the issue of a lack of informed consent by both the surrogate mother and intended parents before proceeding with the contract. For this reason, the medical community can play a crucial role in developing a standardized screening plan for potential surrogacy mothers. 

    A thorough medical screening process should be implemented before a surrogate mother is cleared to carry a child to minimize health complications and provide concise documentation in case of legal ramifications as seen in Johnson vs. Calvert lawsuit of Orange County. In this case, the couple sued the surrogate mother for concealing pregnancy complications that included several miscarriages and alleged that the agency failed to perform a proper background check of the mother (NeJaime, 2017). There are two sides to this case. First, the agency failed to conduct a thorough background check and standardized screening tests to ensure that the mother was healthy to proceed. Second, the lack of documentation of health status failed to protect the surrogate mother and agency in the event that they are sued on an unfounded basis. 

To better protect the legal rights of the surrogate mother, health of the fetus, and expectations of the intended parents, a standardized screening process should consist of a mental health status exam and complete physical exam. A thorough past medical and social history should also be obtained and documented. This would ensure that the mother is in full mental and physical status to proceed with the pregnancy and has the capacity to comply with healthy practices. Ultimately, the medical provider holds the responsibility to ensure that these screening tests are performed. A physician should not perform implantation until the documentation of a completed screening test is provided. 

Creating Uniform Federal Guidelines 

As surrogacy presents with such intricate and personal matters and inevitable complications, we must turn to laws and regulations to resolve them. Unfortunately, the laws guiding the process are not always clear cut and currently vary among agencies, states, and countries. This makes it even harder to maneuver the various roadblocks that may occur. 

In the United States, surrogacy laws are determined at the state level. In “Green Light” states, such as California and Connecticut, surrogacy is permitted for all parents, pre-birth orders are permissible, and the names of both parents are included on the birth certificate. “Yellow Light ” states such as Tennessee and Idaho, allow surrogacy, but present with legal limitations. For example, in Indiana, another yellow light state, surrogacy contracts are not enforceable but some courts have granted pre-birth orders for intended parents, which establish the intended parents as the baby’s legal parents (Trolice, et al., 2019). Lastly, “Red Light” states such as Michigan and Louisiana completely prohibit compensated surrogacy, only allow altruistic surrogacies, and deem anything beyond those limits a criminal offense. For instance, intended parents in Michigan can be fined up to $50,000 and imposed a penalty of up to one year imprisonment. Surrogacy arrangements are so restricted in Louisiana that it is limited to married heterosexual couples (Gonzalez, 2019). 

Because the surrogacy industry is still relatively new, many U.S. laws have room for improvement and must keep up with other ongoing advancements in medicine.  There are a number of factors and variables that can complicate surrogacy law, so it is extremely important to work with an assisted reproduction attorney in the state where surrogacy is taking place (Radcliff, 2019). Currently, the absence of federal surrogacy laws and competing views can impede transparency and obscure predictability. The establishment of federal regulations with medical committee advice can oversee surrogate agencies, offering clearer and more consistent guidance to the legal and medical terrains of surrogacy.

Rights of the Intended Parents

To further complicate matters, there is a difference between traditional and gestational surrogacy. In traditional surrogacy, the surrogate mother is artificially inseminated with the sperm of the intended father. In gestational surrogacy, a fertilized embryo of the intended parents is implanted in the surrogate mother. The child is not genetically related to the surrogate mother. This is a legally complex process that is carried out based on the contract between the intended parents and the surrogate to define the difference between legal and biological parents.

 The contract lists out the roles and responsibilities of each party involved in the surrogate process and outlines the expected behavior of the surrogate during pregnancy. In the event where the surrogate mother violates the agreement, the obstetrician faces the dilemma of whether to disclose the information to the intended parents or not (Daar, 2014). During the course of treatment, the clinician may learn previously unrevealed medical history about the surrogate, the surrogate’s intention to keep the resulting child, or dangerous behaviors like tobacco or alcohol use. Dr. Daar described the dilemma as between “the duty to obtain informed consent and the duty to maintain patient confidentiality.” 

First, it is strongly recommended that the surrogate and the intended parents see different clinicians to avoid overlapping patient-physician relationships. This will avoid conflict of interest so that both parties are cared for in their best interests. Next, the use of a written agreement is necessary to resolve any conflict. Disclosure is permitted if the surrogate waived her right to confidentiality. Most surrogate contracts require surrogates to waive certain HIPAA rights to reassure the intended parents that the child is healthy throughout the pregnancy. 

If there is a breach in contract, the clinician would ideally encourage the surrogate to discuss the breach with the intended parents. If the surrogate refuses and the agreement does not include a waiver of confidentiality, the clinician should weigh the harm and benefit of revealing the information. The intended parents are genetically related to the fetus and are ultimately responsible for the outcome of the pregnancy. Therefore, protecting the patient’s confidentiality may cause potential harm to the baby as well as the intended parents. Nonconsensual disclosure should be justified to obtain informed consent and to avoid harm. 

Rights of the Surrogate

A written legal contract between the surrogate mother and intended parents becomes especially imperative if disagreements should arise on the decision for abortion.  Difficult as these scenarios may be for traditional biological parents, the potential for conflict increases in cases of surrogacy.  From the perspective of the surrogate mother, she has to go through many lifestyle changes in caring for her fetus, such as avoiding certain fish, tobacco and alcohol as well as modifying her daily activities. After nine months of this, she then has to emotionally detach herself from the child after delivery. While all this may be previously agreed upon, it does not account for everything. And none of this strips the surrogate of certain basic rights, such as the autonomous right to her body and her own gametal development.

As many intended parents will have a financial interest in achieving a pregnancy on the first attempt, the process of multiple embryo implantation is common in order to increase the odds of just that.  Multiple implantations introduce greater chances of a multiple fetus pregnancy, resulting in potential conflicts between surrogate and parents. Multiple gestation comes with increased risks for both the fetuses and the mother carrying them. Additionally, if the surrogate happens to carry twins or triplets, the parents may insist on what is called “fetal reduction,” the process of terminating one or more fetuses with the intention of increasing the odds of a viable pregnancy.  With this comes the risk of psychological distress to the surrogate as well as the potential for a complete termination of pregnancy (Tanderup et al., 2015). In a high-profile case of 2016, surrogate Melissa Cook refused the requests of the commissioning parents to abort one of her triplets.  The surrogate mother decided she wished to deliver and seek custody of that triplet, defying the authority of the future parents (as per the contract) along with their concerns over the risks of carrying all three to term (O’Reilly, 2016). With stipulations of binding contracts involved, financial and legal concerns may complicate the counseling of patients who are weighing options in an already stressful situation. Ultimately, the risks of carrying multiple gestations and the surrogate mother’s autonomous rights to her body must be evaluated before coming to a definitive conclusion. 

            Another case that arose in 2017 speaks of a California-based surrogate mother who did not  “have sexual intercourse from the first day of her menstrual cycle before the embryo transfer until the date that pregnancy has been confirmed by the IVF Physician”  still went on to conceive a second child in a process of superfetation (NeJaime, 2017). In such rare cases, having the definite and autonomous right to one’s body through the different states helps streamline the custody battle and process. Allen should have had full right to conduct her life as planned despite entering a surrogacy contract.  

As a medical provider in situations such as this, our consideration of a patient’s autonomy, goal of beneficence toward that patient, and respect for the legally documented wishes of the parents are all in play.  The aim of informed consent is not so clear when a medical decision, traditionally made by one party, has been fractured into two.  The health of a patient can take primacy over contractual disagreements, however, efforts should be made to establish this consent with the patient as well as to communicate effectively all of the risks and benefits to both parties so that decisions can be made sensibly and amicably.  In instances of surrogacy, our ability to communicate clearly and consistently among multiple parties is crucial.

Rights of the Fetus

In all the debate about surrogate mother and the intended parents rights, one important factor we seem to overlook is the rights of the fetus or resulting child. As someone who is unable to speak their mind at the time the contracts are drafted, the fetus is both vulnerable and dependent on the decisions of a proxy (Rafique and DeCherney, 2014). Under normal circumstances that proxy would be the intended parents who have a vested emotional and psychological interest in the wellbeing of the child. However, multiple cases have arisen that put that proxy status in question and beg the need for a third party proxy. This third party proxy may be taken on by a physician so that the health and safety of the surrogate mother and fetus are prioritized. 

As previously stated, abortion or pregnancy reduction procedures are often common in gestational surrogates where multiple implantations may overburden the parents. We know that in entering a surrogacy agreement, both parties want to produce a healthy and viable child. Then if the health of the child or the surrogate mother is not a contention, can abortion or reduction still be an ethical option? What if the intended parents change their minds half way through the pregnancy and wish to abort? 

Furthermore, in a normal pregnancy the mother’s health is paramount, fetal health is therefore dependent on the mother who has a shared interest. In case of gestational surrogacy, the surrogate has no gametal involvement or interest in the resulting child, creating a paradigm of two separate patients that the obstetrician must cater to (Horner and Burcher, 2021). A third proxy physician may step in to conclude that although the surrogate mother does not have genetic ties to the child, the health of her body ensures the survival of the child.

With multiparity fetuses normally detected between 11-14 weeks of gestation (Bora, et al 2008), the decision to abort or reduce comes after significant emotional involvement of both parties in the contract. At such a time, a third party proxy or physician could be a valuable resource in addressing: the need for a fetal health advocate, a council for the surrogate and guide the intended parents decision.  

Conclusion 

Surrogacy is a delicate, yet complex topic that requires a significant amount of time to discuss and prepare for. Emotional, financial, medical, ethical and legal aspects contribute to the decision and continue to play a role throughout the journey and beyond. With so many moving parts, the need for standardized legal and medical guidance is important in ensuring a smooth transition and optimal care for all parties involved. A standardized system that can address the autonomy and nonmaleficence nature of care given to the surrogate, the justifiable right of all intended parents to surrogacy, and the dual role of beneficence in caring for both surrogate and fetus. It is because of this that we support a more physician-involved central guide to advocate for the ethical health rights of all parties involved in the surrogacy process. 

References :

Bora SA, Papageorghiou AT, Bottomley C, Kirk E, Bourne T. (2008). Reliability of transvaginal ultrasonography at 7-9 weeks’ gestation in the determination of chorionicity and amnionicity in twin pregnancies. Ultrasound Obstet Gynecol . 32(5):618-21

F., S., Alvarez, N., & Trolice , M. (2019, October 18). Surrogacy in the USA – Is It Legal in All 50 States? https://babygest.com/en/united-states/#surrogacy-laws-by-state  

​​Gonzalez, A. ( 2019 , June 12). Commercial Surrogacy in the United States . law.georgetown.edu. 

https://www.law.georgetown.edu/gender-journal/wp-content/uploads/sites/20/2019/11/Ali ia_Surrogacy-6.pdf. 

Horner C, Burcher P. ( 2021 ) A surrogate’s secrets are(n’t) safe with me: patient confidentiality in the care of a gestational surrogate. Journal of Medical Ethics . 47 : 213-217

Judith Daar (2014). “Physician Duties in the Face of Deceitful Gamete Donors, Disobedient Surrogate Mothers, and Divorcing Parents.” AMA Journal of Ethics , vol. 16, no. 1, 2014, pp. 43–48. 

Mello L. Everything You Need to Know About Surrogacy Agencies. Circle Surrogacy. https://www.circlesurrogacy.com/blog/circle-surrogacy/everything-to-know-surrogacy-agencies/. Published May 22, 2020. Accessed July 6, 2021. 

    NeJaime D. The Nature of Parenthood . 2017 ;126(8).       https://www.yalelawjournal.org/article/the-nature-of-parenthood. Accessed July 5, 2021. 

O’Reilly, K. (2016, February 18). When Parents and Surrogates Disagree on Abortion . The Atlantic. https://www.theatlantic.com/health/archive/2016/02/surrogacy-contract-melissa-cook/463323/

Radcliffe, S. ( 2019 , April 55). Lawsuit Filed by Surrogate Mother Raises New Legal, Moral … healthline.com.https://www.healthline.com/health-news/lawsuit-filed-by-surrogate-mother-raises-new-legal-moral-issues-012016. 

Rafique, S, and DeCherney, A.H. (2014) Physician Responsibility when a Surrogate Mother Breaks her Contract. AMA Journal of Ethics. Virtual Mentor. 16(1):10-16.

Tanderup, M., Reddy, S., Patel, T., & Nielsen, B. B. ( 2015 ). Reproductive Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India. Journal of Bioethical Inquiry , 12 (3), 491–501. https://doi.org/10.1007/s11673-015-9642-8

The Child-Parent Security Act: Gestational Surrogacy. New York State Department of Health. (2021, March). https://health.ny.gov/community/pregnancy/surrogacy/. 

White PM. ( 2017 ) “One for Sorrow, Two for Joy?”: American embryo transfer guideline recommendations, practices, and outcomes for gestational surrogate patients. J Assist Reprod Genet. 34(4):431-443.

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What Is Surrogacy and How Does It Work?

S urrogacy involves recruiting someone else to carry and deliver your child. Keep reading to learn why some intended parents choose surrogacy, the necessary qualifications, benefits, cost, and more.

When someone can't get pregnant on their own, they still have a few options for accomplishing their dream of parenthood—including using a surrogate (sometimes called a gestational carrier). This means they recruit someone else to carry and deliver their child.

“In the broadest terms, a surrogate means a substitute. When we talk about surrogacy in the assisted reproduction field, we're referring to a [person] who is carrying a child for another,” explains Stephanie M. Caballero, Esquire, founder of The Surrogacy Law Center .

According to the Centers for Disease Control and Prevention (CDC), about 2% of all assisted reproductive technology cycles  between 1999 and 2013 involved surrogacy. This resulted in 13,380 deliveries and a total of 18,400 infants (many were twins, triplets, or other multiples).

Keep reading to learn about the surrogacy process, including the types of surrogates, expected costs, how to find one, and more.

Types of Surrogates

There are two types of surrogates: traditional and gestational. Gestational surrogacy is more common in America today, but there are still benefits and drawbacks, which we break down below.

Traditional Surrogacy

Traditional surrogacy uses the surrogate’s egg. It's mixed with sperm—either from the father or a donor—and inserted into the surrogate's uterus using  intrauterine insemination (IUI) or in vitro fertilization (IVF). A traditional surrogate is the baby's biological mother.

Because of the legal and ethical complexities associated with traditional surrogacy, some organizations like the American College of Obstetricians and Gynecologists (ACOG) advise against it.

Gestational Surrogacy

Gestational surrogacy occurs when the intended parents use their own egg and sperm to make a baby, which is then carried by a surrogate. Donor eggs and/or sperm can also be used. Gestational surrogates have no genetic link to the baby they carry.

Why Do People Use Surrogates?

Hopeful parents might choose surrogacy for a variety of reasons. We've listed a few below, but it’s important to keep in mind that people may also hire a surrogate because it simply feels right for them. 

Infertility . Those struggling with infertility may choose to deliver a child via surrogacy, especially if they're using donor eggs or sperm. It can also be used in cases of repeated miscarriage or recurrent implantation failure, or if the intended parent has problems with their uterus.

Medical conditions. Similarly, you may decide on surrogacy if you have a medical condition that makes pregnancy unsafe, such as severe heart or kidney disease. Certain medications can also make pregnancy unsafe. What's more, some people might be advised against carrying a pregnancy due to mental health concerns.

Prior pregnancy complications. People might be unable to carry a child if they've had certain pregnancy complications in the past; one example is postpartum hemorrhage requiring a hysterectomy.

Same-sex couples or single parents . For single males, surrogacy can be a path toward parenthood. Surrogacy is also a viable option for same-sex couples who don’t have both sperm and egg to donate, says Tiffany Hallgren Crook , founder of the TLC Infertility and Donor Services in Houston, Texas. 

Carrier of a genetic disorder . If the egg-bearing partner is known to be a carrier of a genetic disorder, surrogacy (with a donor egg) can help circumvent the risk. The person with the genetic disorder could also carry a donor egg.

Advanced maternal age . People over the age of 35 have an increased risk of birthing a baby with genetic abnormalities, and they can also suffer from diminished ovarian reserve, which can make it more difficult to get pregnant. In cases like this, surrogacy can be a good option. It's important to note, however, that many people with advanced maternal age carry pregnancies to term without any problems.

What Is In Vitro Fetilization (IVF)?

Surrogacy often relies on in vitro fertilization (IVF) . This fertility treatment involves mixing egg and sperm in a petri dish, then inserting the embryo in a person's uterus to start a pregnancy.

How to Find a Surrogate

There are a few ways to find a surrogate: you can tap a trusted friend or loved one, peruse social media or surrogacy matching sites, or hire a reputable agency. Read more about your options below. 

Independent surrogacy

By and large, the least expensive and most convenient approach to surrogacy is using a trusted friend or loved one. According to Amira Hasenbush, JD, MPH , an attorney in California, one of the major advantages of independent surrogacy is that the intended parents and surrogate already have a preexisting relationship with each other.

"This can allow for a greater level of trust and ease throughout the process," she says. "Often, the surrogate is willing to carry for free or for a much lower price than what an unrelated surrogate may charge. This can not only save the intended parents a lot of money but can make surrogacy feasible for people who might not otherwise be able to afford it at all.”

Despite this, says Hasenbush, there are some major drawbacks to consider. “Sometimes communication between the parties can become awkward or uncomfortable when difficult topics arise. Both must make sure they're on the same page about things like lifestyle during the pregnancy, money, and termination/abortion ." If these issues aren't hashed out ahead of time, it can create a serious rift in the relationship.

Related: To Save on Surrogacy Costs, More Parents Are Aiming for "Twiblings"

Agency surrogacy

Many surrogacy agencies exist today. “But there are so many of them now that due diligence is needed to help ensure that intended parents are working with an ethical, professional, and established agency," says Caballero.

If you choose to go through an agency for your surrogacy, you’ll find that each operates slightly differently. They have somewhat varied price ranges and qualifications as well, though you can rest assured that all candidates have gone through rigorous screenings to ensure they meet the minimum qualifications.

In addition, “parents can certainly set more requirements based on their preferences, however, it may take longer to find a candidate depending on how specific the requirements are,” says Crook. 

Social media or online

If you don’t want to go through an agency to find a surrogate, and you don’t have any obvious candidates in your circle of friends and family, you could always turn to social media. After all, there’s an app for that! Apps like GoStork can help you find a potential match on your own, and a quick Facebook search for “surrogate mother needed” yields hundreds of results. 

A word of caution, though: While potentially more convenient and less expensive, finding a surrogate on social media certainly comes with its share of risks. You’ll want to discuss a background check and health screenings early on, to ensure you’re both on the same page when it comes to expectations about the process.

Caballero warns, “due diligence, including comprehensive background checks, cannot be stressed enough. There are a lot of good people on those sites, but it only takes one bad actor to ruin the dreams and cause havoc and more heartbreak.”

Surrogate Qualifications

Each parent and clinic may have different requirements for surrogates. Here are a few potential qualifications that a surrogate must meet, according to the American Society for Reproductive Medicine:

• Be between the ages of 21 and 45 (though ideally under 35 years old)
• Maintain a healthy BMI
• Have given birth successfully at least once—but no more than five times—with no major complications in the pregnancy
• Have had no more than three C-sections
• Pass necessary psychological and medical screenings
• Don't rely on antidepressants, drug, alcohol, or tobacco use
• Reside in a surrogacy-friendly state
• Have the support of their spouse or partner
• Be mentally and emotionally stable
• Sign the necessary contracts

Note that these requirements vary depending on the surrogacy agency or fertility clinic. The Yale Fertility Center, for example, won't accept surrogates who have had more than two prior C-section deliveries , and who have a BMI over 30.

Related: Yes, You Can Breastfeed a Surrogate Baby

How Does Surrogacy Work?

If you go through an agency, like most intended parents, here’s a rough outline of how you can expect the surrogacy process to work. 

Preparation . Parents seeking surrogacy will meet with an agency, a lawyer who specializes in surrogacy issues, and possibly even a counselor.  ACOG recommends "separate and independent" legal counseling and mental health counseling for intended parents and surrogates. Intended parents will also make an informed decision about which type of surrogacy (traditional or gestational) is right for them. 

Screening . Once you have matched with a surrogate, they will complete comprehensive screenings, including medical, psychological, financial, and physical. A potential surrogate can expect blood work and various examinations. Gestational carriers should understand the risks associated with the surrogacy process, and fair compensation should be determined.

Agreement . Upon being medically cleared by the IVF physician, there's a legal agreement drafted between the surrogate and the intended parents. These contracts can be lengthy and map out many situations to ensure that everyone is on the same page. 

Fertilization . The eggs and sperm of the intended parents or donors are collected and combined in a laboratory to create embryos through IVF . The embryos are tested for quality and genetic abnormalities before being transferred to the surrogate's uterus. 

Pregnancy . The surrogate carries the pregnancy under the supervision of the medical team and the surrogacy agency. They follow a prenatal care plan that includes regular check-ups, ultrasounds, blood tests, medications, etc. They also maintain contact with the intended parents and update them on the progress of the pregnancy. The intended parents provide emotional and financial support to the surrogate throughout the pregnancy. 

The Cost of Surrogacy 

The cost of surrogacy varies widely depending on location and your specific circumstances; for example, if you're using an egg and sperm donor , the cost will likely be higher. The price will also rise if you need multiple IVF cycles to achieve a pregnancy.

According to the Fertility Center of Las Vegas, intended parents can be expected to pay between $110,000 and $170,000. The New York State Department of Health puts the number between $60,000 and $150,000.

This price is steep, but it covers all of the costs associated with the surrogacy process, which can include the following:

• Surrogate compensation
• Medical expenses
• Legal expenses
• Surrogacy agency fees
• Additional and miscellaneous costs

Insurance coverage for surrogacy varies by policy, says Crook. “In some cases, medical insurance may cover some aspects of the pregnancy and childbirth , but it's essential to check with your specific insurance policy to understand what is covered. Surrogacy-related expenses, such as agency fees, are usually not covered by insurance.”

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Guest Essay

In Medicine, the Morally Unthinkable Too Easily Comes to Seem Normal

By Carl Elliott

Dr. Elliott teaches medical ethics at the University of Minnesota. He is the author of the forthcoming book “The Occasional Human Sacrifice: Medical Experimentation and the Price of Saying No,” from which this essay is adapted.

Here is the way I remember it: The year is 1985, and a few medical students are gathered around an operating table where an anesthetized woman has been prepared for surgery. The attending physician, a gynecologist, asks the group: “Has everyone felt a cervix? Here’s your chance.” One after another, we take turns inserting two gloved fingers into the unconscious woman’s vagina.

Had the woman consented to a pelvic exam? Did she understand that when the lights went dim she would be treated like a clinical practice dummy, her genitalia palpated by a succession of untrained hands? I don’t know. Like most medical students, I just did as I was told.

Last month the Department of Health and Human Services issued new guidance requiring written informed consent for pelvic exams and other intimate procedures performed under anesthesia. Much of the force behind the new requirement came from distressed medical students who saw these pelvic exams as wrong and summoned the courage to speak out.

Whether the guidance will actually change clinical practice I don’t know. Medical traditions are notoriously difficult to uproot, and academic medicine does not easily tolerate ethical dissent. I doubt the medical profession can be trusted to reform itself.

What is it that leads a rare individual to say no to practices that are deceptive, exploitative or harmful when everyone else thinks they are fine? For a long time I assumed that saying no was mainly an issue of moral courage. The relevant question was: If you are a witness to wrongdoing, will you be brave enough to speak out?

But then I started talking to insiders who had blown the whistle on abusive medical research. Soon I realized that I had overlooked the importance of moral perception. Before you decide to speak out about wrongdoing, you have to recognize it for what it is.

This is not as simple as it seems. Part of what makes medical training so unsettling is how often you are thrust into situations in which you don’t really know how to behave. Nothing in your life up to that point has prepared you to dissect a cadaver, perform a rectal exam or deliver a baby. Never before have you seen a psychotic patient involuntarily sedated and strapped to a bed or a brain-dead body wheeled out of a hospital room to have its organs harvested for transplantation. Your initial reaction is often a combination of revulsion, anxiety and self-consciousness.

To embark on a career in medicine is like moving to a foreign country where you do not understand the customs, rituals, manners or language. Your main concern on arrival is how to fit in and avoid causing offense. This is true even if the local customs seem backward or cruel. What’s more, this particular country has an authoritarian government and a rigid status hierarchy where dissent is not just discouraged but also punished. Living happily in this country requires convincing yourself that whatever discomfort you feel comes from your own ignorance and lack of experience. Over time, you learn how to assimilate. You may even come to laugh at how naïve you were when you first arrived.

A rare few people hang onto that discomfort and learn from it. When Michael Wilkins and William Bronston started working at the Willowbrook State School in Staten Island as young doctors in the early 1970s, they found thousands of mentally disabled children condemned to the most horrific conditions imaginable: naked children rocking and moaning on concrete floors in puddles of their own urine; an overpowering stench of illness and filth; a research unit where children were deliberately infected with hepatitis A and B.

“It was truly an American concentration camp,” Dr. Bronston told me. Yet when he and Dr. Wilkins tried to enlist Willowbrook doctors and nurses to reform the institution, they were met with indifference or hostility. It seemed as if no one else on the medical staff could see what they saw. It was only when Dr. Wilkins went to a reporter and showed the world what was happening behind the Willowbrook walls that anything began to change.

When I asked Dr. Bronston how it was possible for doctors and nurses to work at Willowbrook without seeing it as a crime scene, he told me it began with the way the institution was structured and organized. “Medically secured, medically managed, doctor-validated,” he said. Medical professionals just accommodated themselves to the status quo. “You get with the program because that’s what you’re being hired to do,” he said.

One of the great mysteries of human behavior is how institutions create social worlds where unthinkable practices come to seem normal. This is as true of academic medical centers as it is of prisons and military units. When we are told about a horrific medical research scandal, we assume that we would see it just as the whistle-blower Peter Buxtun saw the Tuskegee syphilis study : an abuse so shocking that only a sociopath could fail to perceive it.

Yet it rarely happens this way. It took Mr. Buxtun seven years to convince others to see the abuses for what they were. It has taken other whistle-blowers even longer. Even when the outside world condemns a practice, medical institutions typically insist that the outsiders don’t really understand.

According to Irving Janis, a Yale psychologist who popularized the notion of groupthink, the forces of social conformity are especially powerful in organizations that are driven by a deep sense of moral purpose. If the aims of the organization are righteous, its members feel, it is wrong to put barriers in the way.

This observation helps explain why academic medicine not only defends researchers accused of wrongdoing but also sometimes rewards them. Many of the researchers responsible for the most notorious abuses in recent medical history — the Tuskegee syphilis study, the Willowbrook hepatitis studies, the Cincinnati radiation studies , the Holmesburg prison studies — were celebrated with professional accolades even after the abuses were first called out.

The culture of medicine is notoriously resistant to change. During the 1970s, it was thought that the solution to medical misconduct was formal education in ethics. Major academic medical centers began establishing bioethics centers and programs throughout the 1980s and ’90s, and today virtually every medical school in the country requires ethics training.

Yet it is debatable whether that training has had any effect. Many of the most egregious ethical abuses in recent decades have taken place in medical centers with prominent bioethics programs, such as the University of Pennsylvania , Duke University , Columbia University and Johns Hopkins University , as well as my own institution, the University of Minnesota .

One could be forgiven for concluding that the only way the culture of medicine will change is if changes are forced on it from the outside — by oversight bodies, legislators or litigators. For example, many states have responded to the controversy over pelvic exams by passing laws banning the practice unless the patient has explicitly given consent.

You may find it hard to understand how pelvic exams on unconscious women without their consent could seem like anything but a terrible invasion. Yet a central aim of medical training is to transform your sensibility. You are taught to steel yourself against your natural emotional reactions to death and disfigurement; to set aside your customary views about privacy and shame; to see the human body as a thing to be examined, tested and studied.

One danger of this transformation is that you will see your colleagues and superiors do horrible things and be afraid to speak up. But the more subtle danger is that you will no longer see what they are doing as horrible. You will just think: This is the way it is done.

Carl Elliott ( @FearLoathingBTX ) teaches medical ethics at the University of Minnesota. He is the author of the forthcoming book “The Occasional Human Sacrifice: Medical Experimentation and the Price of Saying No,” from which this essay is adapted.

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Comparative Literature as Alternative Humanities Ethics, Affect and the Everyday Social

In the last few decades, scholars in the Humanities have found it necessary to examine the fundamental underpinnings upon which their disciplines are built. One of the primary questions that animated this re-examination has been regarding the very terms of our engagement with countries and communities that inhabit radically  different  social  and moral life-worlds, living as they do outside the orbit of European Enlightenment values that still regulate both organization and practice within and outside the academy, across the world. Instead of accepting difference as a defining feature of the human condition, the grand narratives of the Enlightenment were used as colonial and imperial tools to homogenize the diversity of experience, emotion and expression as the high tide of colonial modernity swept the world. The consequent otherness and alienation that characterised human society have deeply impacted literary and cultural production. We witness a disjunction between the objective, scientific discourse with its claim to truth and  the everyday social experience of the human subject which Humanities seek to understand. These asymmetries compel us to rethink the Humanities from alternative positions and perspectives to embody and address the plural orders of reality and the differences between them. How can the collection of disciplines we call the Humanities recover the capacity of self-reflection and self-criticism? Much has been written about how stereotypes invade our imagination to contaminate our experience and knowledge.

Comparative Literature’s commitment to alterity and plurality gives it a foundational interest in the non-stereotypical, non-canonized, un-heard narratives of “others” that constitute a radical sense of the literary. Such articulations can only emerge from the confluence of different locations, experiences, and identities, demonstrating how   our vision of “others” projects our own versions of ourselves onto the outside world.

An alternative view of the Humanities will have to come to terms with the ideas of relationality, plurality and cultural mobility as the defining features of all epochs including that of the pre-modern. Texts, ideas, images, metaphors, themes,  modes, genres, tales are all human endeavours and like humans  themselves  these  have  the capacity to travel across constructed, eternally  given  or  pre-fixed  borders,  thereby defying the exclusivist, essentialist ideas of culture and literature.  The  prevailing inclination towards connected sociologies and connected histories, while  a  step  in  the right direction, often reflects the dominant discourses which impose homogeneity and hierarchy, evincing a lack of empathy for  the  precarious  endeavor  of  encountering alterity and a lack of understanding of the transient and the contingent.

Thus, we propose plurality as a conceptual framework to address this eco-system of interconnectedness and relationality in terms of their manifestations in the languages and literatures of all nations, regions and communities, regardless of their location in the hierarchy of political and economic regimes, or of their internal stratifications. We would like to recover  the  mutuality  of  interconnections  and  interdependence  between literatures and cultures across the world. The assertion that  we  live  in  a  post-human world prompts us, as humans to consider our experience in terms of relationality and plurality. These emerge as conceptual tools for recasting our relations with the other - be it humans, animals or the non- living.

Texts are actualised through their immersion in the shared ideological  and  affective worlds that constitute the everyday world. From orality to print  to  the  visual  media, modes of intersubjective engagement are implicated in  structures  of  power  relations within society and our response to them. The very practice of Comparative Literature is an acknowledgement of plurality and a willingness to engage with difference. The discipline emphasises upon relationality,  heterogeneity,  multivocal  perspectives,  and direct engagement with alterity that translation offers as a process and a product. Built into the discipline is the  interaction  between  literatures  in  multiple  languages  both within the nation and in other countries of the world. Furthermore, it takes orality and performance in its ambit. It reaches out to all other disciplines by asking the existential question : can we open ourselves to the location of the other and view the world from the vantage point of difference that we encounter outside ourselves? Can we frame a dialogic mode of interaction that reading teaches us to our relations with the world, to expand our view of the world outside our own limited subjectivity ? Hence, we propose Comparative Literature as an alternate paradigm - and invite reflections upon the possibilities inherent in the conceptual frame structured by the reciprocal, the relational and the plural. It is our hope that it will help to grasp and address the nature of the crisis that afflicts the Humanities today both in intradisciplinary and interdisciplinary framework.

S u b - t h e m e s :

Some of the sub-themes in the context of the main theme that can be taken up for discussion are as follows:

Interrogating categorial binaries (tradition/ modernity/ nature culture / regional/national/ east/west, etc.)/ Literary Studies and Social Sciences/ The Posthuman as a paradigm in literary studies.

Worlding literature / Historicising canons / Global and local as reading contexts. The idea of the classic in modernity: circulation or creativity? Translation and the encounter with difference.

Translating “dialects”/ The oral texts/ Archaic texts.

The plural nation: stratification and resistance/ Literary historiography and geopolitics/ Intertextuality and chronotopes.

Polyphony/ Polysemy in  literature/  Poetry  and  cosmopolitanism. Interrogating “Minor” literature as a category/ Identity theories as critiques of the Humanities/ Life-writings from the margins.

The performativity of literature/ Screenplay as literature/ Intermediality in literature. South Asian literatures and cultures: relations, reciprocity and ruptures/ Population movements and literature.

Papers are invited from the scholars of Comparative Literature, Cultural Studies , Theatre Studies, Gender Studies, Black Studies, Dalit Studies, etc., or any aspect of litearture and culture that will help us understand and practice the Humanities in accordance with the ethical perspectives outlined above.

Abstracts of about 250 words along with a short bio-note of about 100 words may be submitted to c lai2024 @ admin.du.ac.in

Upon acceptance, participants will be provided with registration details through mail. The Registration Fee will include workshop kit, certificate, lunch, and refreshments during the three days of the conference. Participants would need to become members of CLAI on receiving their acceptance letters in order to present papers, if they are not already members of CLAI.

For further information please visit: htt ps://www.clai.in/upcoming-event/

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In the campus protests over the war in Gaza, language and rhetoric are—as they have always been when it comes to Israel and Palestine—weapons of mass destruction.

By Zadie Smith

A philosophy without a politics is common enough. Aesthetes, ethicists, novelists—all may be easily critiqued and found wanting on this basis. But there is also the danger of a politics without a philosophy. A politics unmoored, unprincipled, which holds as its most fundamental commitment its own perpetuation. A Realpolitik that believes itself too subtle—or too pragmatic—to deal with such ethical platitudes as thou shalt not kill. Or: rape is a crime, everywhere and always. But sometimes ethical philosophy reënters the arena, as is happening right now on college campuses all over America. I understand the ethics underpinning the protests to be based on two widely recognized principles:

There is an ethical duty to express solidarity with the weak in any situation that involves oppressive power.

If the machinery of oppressive power is to be trained on the weak, then there is a duty to stop the gears by any means necessary.

The first principle sometimes takes the “weak” to mean “whoever has the least power,” and sometimes “whoever suffers most,” but most often a combination of both. The second principle, meanwhile, may be used to defend revolutionary violence, although this interpretation has just as often been repudiated by pacifistic radicals, among whom two of the most famous are, of course, Mahatma Gandhi and Martin Luther King, Jr . In the pacifist’s interpretation, the body that we must place between the gears is not that of our enemy but our own. In doing this, we may pay the ultimate price with our actual bodies, in the non-metaphorical sense. More usually, the risk is to our livelihoods, our reputations, our futures. Before these most recent campus protests began, we had an example of this kind of action in the climate movement. For several years now, many people have been protesting the economic and political machinery that perpetuates climate change, by blocking roads, throwing paint, interrupting plays, and committing many other arrestable offenses that can appear ridiculous to skeptics (or, at the very least, performative), but which in truth represent a level of personal sacrifice unimaginable to many of us.

I experienced this not long ago while participating in an XR climate rally in London. When it came to the point in the proceedings where I was asked by my fellow-protesters whether I’d be willing to commit an arrestable offense—one that would likely lead to a conviction and thus make travelling to the United States difficult or even impossible—I’m ashamed to say that I declined that offer. Turns out, I could not give up my relationship with New York City for the future of the planet. I’d just about managed to stop buying plastic bottles (except when very thirsty) and was trying to fly less. But never to see New York again? What pitiful ethical creatures we are (I am)! Falling at the first hurdle! Anyone who finds themselves rolling their eyes at any young person willing to put their own future into jeopardy for an ethical principle should ask themselves where the limits of their own commitments lie—also whether they’ve bought a plastic bottle or booked a flight recently. A humbling inquiry.

It is difficult to look at the recent Columbia University protests in particular without being reminded of the campus protests of the nineteen-sixties and seventies, some of which happened on the very same lawns. At that time, a cynical political class was forced to observe the spectacle of its own privileged youth standing in solidarity with the weakest historical actors of the moment, a group that included, but was not restricted to, African Americans and the Vietnamese. By placing such people within their ethical zone of interest, young Americans risked both their own academic and personal futures and—in the infamous case of Kent State—their lives. I imagine that the students at Columbia—and protesters on other campuses—fully intend this echo, and, in their unequivocal demand for both a ceasefire and financial divestment from this terrible war, to a certain extent they have achieved it.

But, when I open newspapers and see students dismissing the idea that some of their fellow-students feel, at this particular moment, unsafe on campus, or arguing that such a feeling is simply not worth attending to, given the magnitude of what is occurring in Gaza, I find such sentiments cynical and unworthy of this movement. For it may well be—within the ethical zone of interest that is a campus, which was not so long ago defined as a safe space, delineated by the boundary of a generation’s ethical ideas— it may well be that a Jewish student walking past the tents, who finds herself referred to as a Zionist, and then is warned to keep her distance, is, in that moment, the weakest participant in the zone. If the concept of safety is foundational to these students’ ethical philosophy (as I take it to be), and, if the protests are committed to reinserting ethical principles into a cynical and corrupt politics, it is not right to divest from these same ethics at the very moment they come into conflict with other imperatives. The point of a foundational ethics is that it is not contingent but foundational. That is precisely its challenge to a corrupt politics.

Practicing our ethics in the real world involves a constant testing of them, a recognition that our zones of ethical interest have no fixed boundaries and may need to widen and shrink moment by moment as the situation demands. (Those brave students who—in supporting the ethical necessity of a ceasefire—find themselves at painful odds with family, friends, faith, or community have already made this calculation.) This flexibility can also have the positive long-term political effect of allowing us to comprehend that, although our duty to the weakest is permanent, the role of “the weakest” is not an existential matter independent of time and space but, rather, a contingent situation, continually subject to change. By contrast, there is a dangerous rigidity to be found in the idea that concern for the dreadful situation of the hostages is somehow in opposition to, or incompatible with, the demand for a ceasefire. Surely a ceasefire—as well as being an ethical necessity—is also in the immediate absolute interest of the hostages, a fact that cannot be erased by tearing their posters off walls.

Part of the significance of a student protest is the ways in which it gives young people the opportunity to insist upon an ethical principle while still being, comparatively speaking, a more rational force than the supposed adults in the room, against whose crazed magical thinking they have been forced to define themselves. The equality of all human life was never a self-evident truth in racially segregated America. There was no way to “win” in Vietnam. Hamas will not be “eliminated.” The more than seven million Jewish human beings who live in the gap between the river and the sea will not simply vanish because you think that they should. All of that is just rhetoric. Words. Cathartic to chant, perhaps, but essentially meaningless. A ceasefire, meanwhile, is both a potential reality and an ethical necessity. The monstrous and brutal mass murder of more than eleven hundred people, the majority of them civilians, dozens of them children, on October 7th, has been followed by the monstrous and brutal mass murder (at the time of writing) of a reported fourteen thousand five hundred children. And many more human beings besides, but it’s impossible not to notice that the sort of people who take at face value phrases like “surgical strikes” and “controlled military operation” sometimes need to look at and/or think about dead children specifically in order to refocus their minds on reality.

To send the police in to arrest young people peacefully insisting upon a ceasefire represents a moral injury to us all. To do it with violence is a scandal. How could they do less than protest, in this moment? They are putting their own bodies into the machine. They deserve our support and praise. As to which postwar political arrangement any of these students may favor, and on what basis they favor it—that is all an argument for the day after a ceasefire. One state, two states, river to the sea—in my view, their views have no real weight in this particular moment, or very little weight next to the significance of their collective action, which (if I understand it correctly) is focussed on stopping the flow of money that is funding bloody murder, and calling for a ceasefire, the political euphemism that we use to mark the end of bloody murder. After a ceasefire, the criminal events of the past seven months should be tried and judged, and the infinitely difficult business of creating just, humane, and habitable political structures in the region must begin anew. Right now: ceasefire. And, as we make this demand, we might remind ourselves that a ceasefire is not, primarily, a political demand. Primarily, it is an ethical one.

But it is in the nature of the political that we cannot even attend to such ethical imperatives unless we first know the political position of whoever is speaking. (“Where do you stand on Israel/Palestine?”) In these constructed narratives, there are always a series of shibboleths, that is, phrases that can’t be said, or, conversely, phrases that must be said. Once these words or phrases have been spoken ( river to the sea, existential threat, right to defend, one state, two states, Zionist, colonialist, imperialist, terrorist ) and one’s positionality established, then and only then will the ethics of the question be attended to (or absolutely ignored). The objection may be raised at this point that I am behaving like a novelist, expressing a philosophy without a politics, or making some rarefied point about language and rhetoric while people commit bloody murder. This would normally be my own view, but, in the case of Israel/Palestine, language and rhetoric are and always have been weapons of mass destruction.

It is in fact perhaps the most acute example in the world of the use of words to justify bloody murder, to flatten and erase unbelievably labyrinthine histories, and to deliver the atavistic pleasure of violent simplicity to the many people who seem to believe that merely by saying something they make it so. It is no doubt a great relief to say the word “Hamas” as if it purely and solely described a terrorist entity. A great relief to say “There is no such thing as the Palestinian people” as they stand in front of you. A great relief to say “Zionist colonialist state” and accept those three words as a full and unimpeachable definition of the state of Israel, not only under the disastrous leadership of Benjamin Netanyahu but at every stage of its long and complex history, and also to hear them as a perfectly sufficient description of every man, woman, and child who has ever lived in Israel or happened to find themselves born within it. It is perhaps because we know these simplifications to be impossible that we insist upon them so passionately. They are shibboleths; they describe a people, by defining them against other people—but the people being described are ourselves. The person who says “We must eliminate Hamas” says this not necessarily because she thinks this is a possible outcome on this earth but because this sentence is the shibboleth that marks her membership in the community that says that. The person who uses the word “Zionist” as if that word were an unchanged and unchangeable monolith, meaning exactly the same thing in 2024 and 1948 as it meant in 1890 or 1901 or 1920—that person does not so much bring definitive clarity to the entangled history of Jews and Palestinians as they successfully and soothingly draw a line to mark their own zone of interest and where it ends. And while we all talk, carefully curating our shibboleths, presenting them to others and waiting for them to reveal themselves as with us or against us—while we do all that, bloody murder.

And now here we are, almost at the end of this little stream of words. We’ve arrived at the point at which I must state clearly “where I stand on the issue,” that is, which particular political settlement should, in my own, personal view, occur on the other side of a ceasefire. This is the point wherein—by my stating of a position—you are at once liberated into the simple pleasure of placing me firmly on one side or the other, putting me over there with those who lisp or those who don’t, with the Ephraimites, or with the people of Gilead. Yes, this is the point at which I stake my rhetorical flag in that fantastical, linguistical, conceptual, unreal place—built with words—where rapes are minimized as needs be, and the definition of genocide quibbled over, where the killing of babies is denied, and the precision of drones glorified, where histories are reconsidered or rewritten or analogized or simply ignored, and “Jew” and “colonialist” are synonymous, and “Palestinian” and “terrorist” are synonymous, and language is your accomplice and alibi in all of it. Language euphemized, instrumentalized, and abused, put to work for your cause and only for your cause, so that it does exactly and only what you want it to do. Let me make it easy for you. Put me wherever you want: misguided socialist, toothless humanist, naïve novelist, useful idiot, apologist, denier, ally, contrarian, collaborator, traitor, inexcusable coward. It is my view that my personal views have no more weight than an ear of corn in this particular essay. The only thing that has any weight in this particular essay is the dead. ♦

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By Jay Caspian Kang

By Ruth Margalit

By David Remnick

By Louis Menand

Methaemoglobin as a surrogate marker of primaquine antihypnozoite activity in Plasmodium vivax malaria: a systematic review and individual patient data meta-analysis

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Background The 8-aminoquinolines, primaquine and tafenoquine, are the only available drugs for the radical cure of Plasmodium vivax hypnozoites. Prior evidence suggests that there is dose-dependent 8-aminoquinoline induced methaemoglobinaemia and that higher methaemoglobin concentrations are associated with a lower risk of P. vivax recurrence. We undertook a systematic review and individual patient data meta-analysis to examine the utility of methaemoglobin as a surrogate endpoint for 8-aminoquinoline antihypnozoite activity to prevent P. vivax recurrence.

Methods We conducted a systematic search of Medline, Embase, Web of Science, and the Cochrane Library, from 1 January 2000 to 29 September 2022 inclusive, of prospective clinical efficacy studies of acute, uncomplicated P. vivax malaria mono-infections treated with radical curative doses of primaquine. The day 7 methaemoglobin concentration was the primary surrogate outcome of interest. The primary clinical outcome was the time to first P. vivax recurrence between day 7 and day 120 after enrolment. We used multivariable Cox proportional-hazards regression with site random-effects to characterise the time to first recurrence as a function of the day 7 methaemoglobin percentage (log 2 transformed), adjusted for the partner schizontocidal drug, the primaquine regimen duration as a proxy for the total primaquine dose (mg/kg), the daily primaquine dose (mg/kg), and other factors. The systematic review protocol was registered with PROSPERO (CRD42023345956).

Findings We identified 219 P. vivax efficacy studies, of which eight provided relevant individual-level data from patients treated with primaquine; all were randomised, parallel arm clinical trials assessed as having low or moderate risk of bias. In the primary analysis dataset, there were 1747 G6PD-normal patients enrolled from 24 study sites across 8 different countries (Indonesia, Brazil, Vietnam, Thailand, Peru, Colombia, Ethiopia, India). We observed an increasing dose-response relationship between the daily weight-adjusted primaquine dose and day 7 methaemoglobin level. For a given primaquine dose regimen, an observed doubling in day 7 methaemoglobin percentage was associated with an estimated 30% reduction in the risk of vivax recurrence (adjusted hazard ratio = 0.70; 95% CI = [0.57, 0.86]; p = 0.0005). These pooled estimates were largely consistent across the study sites. Using day 7 methaemoglobin as a surrogate endpoint for recurrence would reduce required sample sizes by approximately 40%.

Conclusions For a given primaquine regimen, higher methaemoglobin on day 7 was associated with a reduced risk of P. vivax recurrence. Under our proposed causal model, this justifies the use of methaemoglobin as a surrogate endpoint for primaquine antihypnozoite activity in G6PD normal patients with P. vivax malaria.

Competing Interest Statement

I have read the journal's policy and the authors of this manuscript have the following competing interests: JAG and GCKWK are former employees of GSK and hold shares in GSK and AstraZeneca. GCKWK reports travel support from AstraZeneca. JKB and KT receive institutional research funding from Medicines for Malaria Venture. JKB reports GSK, Wellcome Trust, and Sanaria participation on the US National Institutes of Health data safety monitoring board and membership of the editorial board of Travel Medicine and Infectious Disease and the guidelines development group for malaria control and elimination, Global Malaria Programme, WHO. RJC, JKB, and RNP report contributions to Up-to-Date. All other authors declare no competing interests.

Clinical Protocols

https://www.iddo.org/document/primaquine-methaemoglobin-study-group-statistical-analysis-plan-0

Funding Statement

Author declarations.

I confirm all relevant ethical guidelines have been followed, and any necessary IRB and/or ethics committee approvals have been obtained.

The details of the IRB/oversight body that provided approval or exemption for the research described are given below:

All studies included in our meta-analysis provided pseudonymised individual data and had obtained ethical approvals from the corresponding site of origin. Therefore, additional ethical approval was not required for the current analysis, as per the Oxford Tropical Research Ethics Committee.

I confirm that all necessary patient/participant consent has been obtained and the appropriate institutional forms have been archived, and that any patient/participant/sample identifiers included were not known to anyone (e.g., hospital staff, patients or participants themselves) outside the research group so cannot be used to identify individuals.

I understand that all clinical trials and any other prospective interventional studies must be registered with an ICMJE-approved registry, such as ClinicalTrials.gov. I confirm that any such study reported in the manuscript has been registered and the trial registration ID is provided (note: if posting a prospective study registered retrospectively, please provide a statement in the trial ID field explaining why the study was not registered in advance).

I have followed all appropriate research reporting guidelines, such as any relevant EQUATOR Network research reporting checklist(s) and other pertinent material, if applicable.

Data Availability

Pseudonymised participant data used in this study can be accessed via the WorldWide Antimalarial Resistance Network ( wwarn.org ). Requests for access will be reviewed by a data access committee to ensure that use of data protects the interests of the participants and researchers according to the terms of ethics approval and principles of equitable data sharing. Requests can be submitted by email to malariaDAC{at}iddo.org via the data access form available at https://www.wwarn.org/working-together/sharing-accessing-data/accessing-data . WWARN is registered with the Registry of Research Data Repositories ( https://www.re3data.org/ ).

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