What is surrogacy? Ethical debate and risks

What is surrogacy? Ethical debate and risks

A large proportion of the population wants or intends to have children at some point in their lives. Within this group we find that there is a majority of people who will be able to have them biologically with their partner.

However, there are many other people who, for some reason, do not have this possibility. For example, women with problems in their reproductive system that prevent them from carrying a child, same-sex couples, or men or women without a partner who are looking for the possibility of having children. In these cases, there may be different alternatives , one of which is surrogacy .

The concept of surrogacy

Surrogacy is understood as a reproduction technique by which a woman voluntarily gestate a child for a person or couple outside of her . The person who is going to gestate the baby is called the pregnant woman, while those who request the gestation are called the intended parents.

This technique requires a formal agreement between the two parties, whereby the former agrees to carry the couple’s baby, renounce motherhood and hand over the child to the couple in question, while the latter agrees to take care of the child and, if there is one, to pay the pregnant woman.

It is generally carried out by means of artificial insemination or in vitro fertilization , with the parents intentionally providing both the eggs and the sperm, or one of them if it is not possible to do so with both.

Those who come to this type of pregnancy are usually heterosexual couples with fertility problems, homosexual couples (usually two men, not being so common to resort to this practice women couples who can resort to other means such as sperm banks), or people without a partner who do not want or can not adopt or resort to other means.

Types of surrogacy

Different types of surrogacy can be established depending on the biological relationship between the pregnant woman and the pregnant woman and according to the characteristics of the agreement between the pregnant woman and the intended parents, based on two main dichotomies: partial surrogacy-complete surrogacy and altruistic surrogacy-commercial surrogacy.

1. Partial or linear subrogation

The first to emerge and therefore also called traditional, refers to the type of surrogacy in which the pregnant woman is also the biological mother of the child. Thus, it is the pregnant woman who lays the egg that is going to be fertilized by the sperm of the intended father.

2. Full or gestational surrogacy

In this type of surrogacy, the pregnant woman has no biological link to the future child. Ovum and sperm are provided by the couple , whether these are their own or those of another person not related to the pregnant woman. This is the most common.

3. Altruistic subrogation

This is a type of surrogacy in which the pregnant woman does not receive any remuneration for carrying the baby, this being agreed and accepted beforehand. The exception is medical expenses or the loss of possible economic gains when the pregnant woman cannot exercise her profession.

4. Commercial subrogation

In this type of surrogacy, the agreement between the pregnant woman and the Intentional Parents provides for a certain payment in exchange for carrying out the pregnancy of the baby.

Controversy and debate about this type of gestation

Surrogacy has been and continues to be a controversial concept on which there is a wide debate . This debate mainly deals with the ethical aspects of this practice, its application and the risks it may entail.

A large proportion of the population wants or intends to have children at some point in their lives. Within this group we find that there is a majority of people who will be able to have them biologically with their partner.

However, there are many other people who, for some reason, do not have this possibility. For example, women with problems in their reproductive system that prevent them from carrying a child, same-sex couples, or men or women without a partner who are looking for the possibility of having children.
In these cases, there may be different alternatives , one of which is surrogacy .

The concept of surrogacy

Surrogacy is understood as a reproduction technique by which a woman voluntarily gestate a child for a person or couple outside of her .
The person who is going to gestate the baby is called the pregnant woman, while those who request the gestation are called the intended parents.

This technique requires a formal agreement between the two parties, whereby the former agrees to carry the couple’s baby, renounce motherhood and hand over the child to the couple in question, while the latter agrees to take care of the child and, if there is one, to pay the pregnant woman.

It is generally carried out by means of artificial insemination or in vitro fertilization , with the parents intentionally providing both the eggs and the sperm, or one of them if it is not possible to do so with both.

Those who come to this type of pregnancy are usually heterosexual couples with fertility problems, homosexual couples (usually two men, not being so common to resort to this practice women couples who can resort to other means such as sperm banks), or people without a partner who do not want or can not adopt or resort to other means.

Types of surrogacy

Different types of surrogacy can be established depending on the biological relationship between the pregnant woman and the pregnant woman and according to the characteristics of the agreement between the pregnant woman and the intended parents, based on two main dichotomies: partial surrogacy-complete surrogacy and altruistic surrogacy-commercial surrogacy.

1. Partial or linear subrogation

The first to emerge and therefore also called traditional, refers to the type of surrogacy in which the pregnant woman is also the biological mother of the child. Thus, it is the pregnant woman who lays the egg that is going to be fertilized by the sperm of the intended father.

2. Full or gestational surrogacy

In this type of surrogacy, the pregnant woman has no biological link to the future child.

Finally, it also takes into account the possible relationship between the pregnant mother and the gestated one and the consequences it may have on the mother. In this aspect, the majority of women who agree to be pregnant, as long as they receive adequate advice and support and carry out the act with conviction, do not usually present problems in this regard . On the other hand, in some cases where the act is carried out due to a precarious economic situation or under coercion, harmful effects such as depression or the feeling of being used can be observed.

Legal situation in different countries

Surrogacy has a different legal consideration depending on the country or region, being legal in some countries and illegal in others. And even in cases where it is legal there may be differences and limitations that allow only a certain type of population to have access to surrogacy or that it is carried out only if it is done altruistically.

Legal situation in Spain

Currently, surrogacy is not legal in Spain . On a legal level, it is considered that the legal mother of the child would be the woman who has gestated the child, and any contract in which the right to maternity is waived in favour of third parties is considered null and void.

Most people who want to use this type of pregnancy in our country must resort to travelling to other countries where it is permitted, and even then they may find it difficult to have the maternity or paternity of the child in question recognised in this country. This recognition must be done in a judicial manner. Otherwise, the pregnant woman will be considered the legal mother of the baby, although the father would be the sperm donor.

In order for the child to be recognised as the child of the parents who have resorted to surrogacy , the pregnant woman must renounce maternity and leave only the sperm donor father as the legal father, so that his partner can later adopt him. The exception to this fact is in countries such as the United States, Canada or Greece, where filiation is admitted after judicial acceptance in these countries.

However, there is a great debate at the social level regarding the state of this issue and several proposals of law have been made to make this practice legal and to regulate it.

Current situation in Portugal

Portugal has recently decided to draft a law allowing surrogacy, but only in the case of couples where the woman is unable to conceive naturally. However, this law leaves out single people and homosexual couples (whether they are two men or two women). It also establishes that the pregnant woman cannot receive economic compensation , and that once the child is born she cannot have more contact with it than is necessary (with the possible exception of surrogacy within the same family).

Current situation in the United States and Canada

In these two countries surrogacy is legal and can apply to any type of family regardless of sexual orientation or the existence of a partner. In the United States it is allowed to be carried out both altruistically and commercially, while in Canada only altruistic surrogacy is allowed.

Current situation in the United Kingdom

In the United Kingdom surrogacy is legislated for, and is permitted as long as it is altruistic and the mother gives up her right to bear children. At least one parent is required to have a genetic connection to the child, and only people in a relationship (either heterosexual or homosexual couples) have access.

Current situation in Russia

In Russia, surrogacy is legal for both altruistic and commercial couples and for both heterosexual and single persons, although not for homosexual couples .

Current situation in India

In India this technique of assisted reproduction is allowed both altruistically and commercially . However, it is not allowed for citizens of countries where it is not allowed, singles from other countries and homosexuals.

Legal situation in Argentina

In Argentina, there is no legislation regulating surrogacy, so it is, for the time being, illegal in this country. This implies that although it is not allowed, it is not prohibited either.

Despite this, the child would be legally the child of the pregnant woman and the sperm donor (whether the father is intentional or not), so it would be possible for the pregnant mother to adopt the child as her legal father’s partner. There are bills to regulate this practice that would include that it could only be done in an altruistic way, for all types of family structure and requiring judicial approval.

Current situation in Brazil

As in Argentina, there is also no clear law regulating this practice. However, it is permitted as long as it is done altruistically and the pregnant woman is a family (up to fourth grade) of the intended parents. In principle, it would be open to all kinds of family structures (regardless of whether or not there is a partner or of sexual orientation).

Bibliographic references:

  • Golombok, S.; Blake, L.; Casey, P.; Roman, G. & Jadva, V. J. (2013). Children born through reproductive donation: a longitudinal study of psychological adjustment. J Child Psychol Psychiatry;54(6):653-60
  • Rodrigo, A. (2017). What is surrogacy? Babygest [Online]. Available at: https://www.babygest.es/gestacion-subrogada/
  • Smerdon, U.R. (2008). Crossing bodies, crossing borders: International surrogacy between the United States and India. Cumberland Law Review, 29 (1).

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