Legal

Should surrogacy be legalized?

What is the distinction between surrogacy
and commercial breeding of babies?
Is the issue of surrogate motherhood
contradicting the principles of institution of
marriage?
Is the child an item of commerce?

Ethical
Does one have the right to judge the
motives of the woman who serves as the
surrogate mother?
Is the position of surrogate an atavistic
condition where a woman is regarded as
chattel or domestic animal for breeding
purposes?
Is it proper for surrogates to have children
to be turned over to single or homosexual
couples?
Does the impregnation of the surrogate
mother with a married man's sperm cell
amount to adultery?
Are we tampering with life itself when we
perform in vitro fertilization?

Should surrogate mother be single or

married? Have other children or no
children?
Should the biological parents and Are we interfering with the Divine plan for
surrogate mother meet? Should the child humanity?
know about this?
What if the child is born defective?
Should the surrogate mother receive
compensation for the service?
A. Surrogacy (Issues, questions, etc.)

B. Annotation

1. John Robertson. (1998). Bioethics: Sex, Genetics, and Human Reproduction.

Reich, W. (Ed.) New York: Simon & Schuster, Inc.

In the book edited by Warren Reich, a chapter was dedicated to talk about the
emerging reproductive technologies which addressed the management of human
infertility. Many were mentioned including artificial insemination, in vitro fertilization,
embryo transfer, and surrogacy. Moreover, a thorough discussion of surrogacy was
made as one of its subchapter by John Robertson.

Surrogacy involves three or more persons- the married couple and a surrogate
mother. This is an arrangement brought by some physical or psychological incapacity. A
woman agrees to carry a child genetically related to the couple. Surrogate mother is
different from the gestational mother. The former were women who carries a child all
throughout with the intention of giving the baby to someone else while the latter were
women to whom an embryo was donated.

Along with surrogacy were moral issues raised by the traditional opponents. There
were reasons provided to which the opposition believed in. First, surrogacy was
unnatural since it includes artificial insemination by donor, in vitro fertilization, and with
this violated the natural law; second, surrogate mothers degrade themselves as they
offer their human services; third, surrogate mothers serves as a reproductive container and can
be compared to a prostitute; fourth, having a third party in the process weakens the
relationship between the couple; and lastly, this can destroy the relationship between
the mother and the child. However, the traditional proponents answered the faulty
reasoning of the traditional opponents. They said that if there is a line between natural and
artificial which separates moral and immoral, then all unnatural way should be be forbidden in

the society. Also, the child already belongs to the couple and therefore cannot be bought
from the surrogate mother. Being involved in surrogacy will not weaken the marital
relationship since this matter depends on the couple. Furthermore, no mother-child
relationship will be destroyed provided that the genetic mother had the child's interest.

Three group of feminists addressed to the issue enveloping surrogacy. One was
Liberal Feminists who believed that the process is not wrong provided that no one is
harm in the process. Another was Marxist Feminists which thought that women engaged
in this offer her reproductive services as a commodity and reduced themselves into
baby making machines. Last was Radical Feminists that are somehow similar to the
Marxists but emphasized the belief that surrogate mothers agreed to be one because
they wanted to be praised and recognized by the society.

In United Kingdom, Surrogacy Arrangement Act, was passed making surrogacy

broker a criminal offense. However the problem with this was the unjustified limitation to
procreation freedom. Suggested way to regulate this was the adoption law since the
arrangement in adoption and surrogacy was almost the same, both engaging in a
contract to adopt a child. Yet, feminist Phyllis Chesler reiterated the difference between
adoption and surrogacy, the former being child-centered practice while the latter an
adult-centered practice. Furthermore, there were some who wished to regulate
surrogacy through contract law to which there will be a transaction between consenting
parties for reproductive services. But the main problem here was the view that child will
just be a consumer good that was bought.

Issues regarding surrogacy will always be there and Robertson posted disturbing
questions like: "Is it liberating for infertile persons to believe that unless they can
produce a child genetically related to them, their lives will be without joy?" and "Is it
liberating for children to be sold by surrogate mothers who do not want a relationship
with them or to be bought by persons who want relationship with them?". The bottom line
of this was it will be hard to achieve surrogacy law but still society must pay attention to interests
of the woman and the child while providing an effective policies and regulations relating to
surrogacy.

2. Menachem, M. (1991-1992). Surrogate Motherhood and Reproduction Technologies.

Creighton Law Review, 25 (2), 1581-1583.

Menachem began his article with the connection between a history professor and
his dedication to promote a conference on biotechnology and ethics. He mentioned that
it was because of personal and professional connections. The author was introduced to
the ups and downs of surrogate motherhood and the consequences of the growing
reproductive technologies.

For many years, in-vitro fertilization sounded just like of a science fiction and came
with this was the growing biotechnology. The latter challenged the value system of the
world. Menachem acknowledged that the difficulty in infertility was not only
physiologically but also socially and psychologically. Hence, the author stated that "we

cannot abort the hope and new possibilities offered by medicine." However, with these
technologies were questions on family and motherhood, religion and ethics, and
scientific progress and value of human life. There were also issues on women being
degraded in the third world. As an answer to that the author said " with the ability to control
comes responsibility." He mentioned critical issues such as prioritizing values, accessing
possible dangers of progress, and choosing between virtue and compassion.

On surrogacy, the author asked if this will contradict the principles of marriage since
couples were willing to do anything just to have their own baby even breaking the law
and ethical principles. He provided queries that will favor surrogacy like does one have
the right to judge the motives of the surrogate mother, does being surrogate mother
compensate traumatic event in her past, and is economic motivation unethical. On the
other hand, weakening arguments were also mentioned such as should surrogacy be legalized
or be a subject of contract and is the child an item of commerce which is subject to quality
control. Menachem ended his article by saying his personal opinion, he wrote " I firmly
believe that each individual has the right of autonomy over her own body.The specter
that economic pressures and commercial enterprise could capitalize on this autonomy is
overwhelming. The desire to have a baby creates many ethical issues which I hope will
be explored by these scholars of religious and ethics concerns during our conference."

3. Rosner, F. (1991-1992). In vitro Fertilization, Surrogate Motherhood, and Sex Organ

Transplants. Creighton Law Review, 25 (2), 1668-1687.

General and Medical aspects. Louise Brown was born on July 25, 1978 in England
through the efforts of Drs. Patrick Steptoe and Robert Edwards. Baby Louise was a result of in
vitro fertilization and reimplantation of the embryo into the mother's womb. Since then, many
babies were born out of this procedure. Recently, fertilized ovum removal from the womb of the
mother and reimplantation to another woman was made possible.

Rosner's article tackled legal, moral, ethical, and religious issues enveloping in vitro
fertilization and embryo transfer either to the mother herself or to another woman. Principles on
maternity and paternity of the aforementioned methodology were derived from artificial
insemination. Rosner mentioned that it was recognized then the possible transmission of genetic
defects by artificial insemination using sperm of the donor when not screened. In United States,
during his time, there were reports that screening for artificial insemination by donor was not
enough si it was resolved by establishing a list of genetic traits to minimize the genetic defects.

Rosner enumerated the possible alternatives to in vitro fertilization which were observed in a
monkey. First is by removing the egg from the ovary and reimplant it low in the fallopian tube.
Second is by bypassing the fallopian tube and place the ovum within the uterine lumen. And last
is by inserting an egg-embryo chamber in the abdomen where the egg will fertilize, and once
fertilize will be transferred to uterus. Sex organs transplants were already made possible through
the improved technology and take for example are fallopian tube, ovary, and testicular
transplantation. So the issue comes when the ovary of a fertile woman is transplanted to a barren
woman. There will be a question on to whom the child legally belong.

Legal Issue and Public Policy. Numerous legal issues were raised by surrogacy
arrangements. In this, a woman agrees to be artificially inseminated with a sperm from a man
whose wife cannot conceived. Afterwards, the surrogate mother will give up her parental rights
to the biological parents. With the several issues, one of the most intriguing was whether the
surrogate mother should be paid for her service. The author cited the article "Contracts to Bear a
Child: Compassion or Commercialism?" which enumerated many legal questions such as should
the surrogate mother be single or married?, Is she being compensated for the expenses or for the
baby?, Should the biological parents meet the surrogate?, Should the child know about the
arrangement? and so on. And all of these should be consider seriously. However, legal debate just
focused on the general issue which is whether or surrogate arrangement should be considered as
baby selling. Evans and Dixler in their Human In vitro Fertilization: Some Legal Issues
mentioned the four principal areas of legal concerns: rights of fertilized egg, rights of would-be
parents, rights and liabilities of doctors and the hospital, and the public interest. Because of many
unanswered questions, Rosner suggested to make a contract and determine the format and
content of such.

Moral and Ethical Issues. Even before the birth of baby Louise, there were many debates
regarding the moral and ethical issues of in vitro fertilization. One negative issue was the
experimentation of the newborn and the unconceived to perfect technologies of human
reproduction. It claimed that it will carry risk to any child and that no one can ethically choose a
life for the child. Also, the procedure, as they say, involves unethical medical experimentation on
future beings. The opposition said it is immoral since there will be zygotes that are needed to be
killed during the process. On the other hand, one of the physician responsible for the birth of

baby Louise answered that the procedure is different of that in animals since the human
volunteers are not only experimental subjects since they are given the chance to possibly gain
benefit from the work. The reimplantation of embryo as a cure for infertility does not need any
moral justification or explanation if no other procedure can be used. Although, practically
speaking infertility is not cure, at least one of the end of marriage which is to have a child was
fulfilled.

Ethics Advisory Board was organized by the Secretary of the United States Department of
Health, Education, and Welfare, work of National Commission for the protection of Human
Subjects, and the 1975 ban on the funding by the government of human research in the area of in
vitro fertilization. For once, the board assisted in resolving the issues on several debates of
scholars. On March 16, 1979, it released its conclusion which reported that research on in vitro
fertilization and embryo transfer is ethically acceptable. The board recommended that the
government fund the researches on in vitro fertilization without embryo transfer which only
applies in limited conditions. Also, researchers on in vitro fertilization with embryo transfer can
be considered if the gametes obtained came from lawfully married couple. However, one of the
opponents criticized the structure of the board since more than half of the members were in the
medical and research field. In response to that, one of the members reiterated the phrase
"acceptable from ethical standpoint" which should be understood as "ethically defensible but still
legitimately controverted".

The 1981 Principle of Medical Ethics of the American Medical Association stated that it is
not unethical for a physician to perform in vitro fertilization and embryo transplantation

procedures provided that the patient gave its voluntary and informed consent. Those who will
perform such should be skillful and confidentiality should be preserved. The AMA also stated
that more researches should be conducted and screening for donor should be done. The
association also posted guidelines to protect the volunteers. The author recognized the possibility
that issues regarding these new reproductive technologies will continue for many years.

The Jewish Views. In the religion of Judaism it is basic that life is of infinite value and that
the Biblical and Rabbinic commandments may be set aside to save a life. Second belief of Jewish
was that the life of human beings are holy since created by God and so should be treated with
respect and dignity. The issue here is whether performing such procedures interfere with the
Divine plan, take for example the will for a man or woman to be infertile. On the other hand,
Judaism taught that God created the nature for the man to use it accordingly provided that it will
benefit him. And taking this, it can be said that such experimentation is permissible as long as no
one will be hurt. The author, with the contradiction presented, questioned if man is permitted to
alter humanhood through in vitro fertilization and embryo transfer. In rabbinic writings many
issues were written regarding artificial insemination as well as in vitro fertilization and there was
an agreeable opinion that use of semen is permissible if no other method is available, however,
with some exceptions. On the status of the child born, rabbinic writings were divided into two
views: legitimate and illegitimate. It was said that obtaining of sperm for analysis and
insemination was allowed provided that it was obtained through the retrieval in the vagina or
through the use of condom.

Still, many discussion were made and the former Israeli Chief Rabbi Ovadiah Josef

approved the in vitro fertilization of the woman's egg with the sperm of the husband and the
reimplantation of the embryo to the same woman's womb. Former Chief Rabbi Shlomo Goren
asserted that such procedure is morally repugnant but legally unobjectionable. No issue of
adultery shall be raised since the sperm used was of the husband. This shall be permitted since it
will fulfill the biblical aim of procreation and the child is legitimate. The Committee on Medical
Ethics of the Federation of Jewish Philanthropies of New York concluded that fertilized egg in a
test tube does not have humanhood and can be used for scientific knowledge. If so, destroying
fertilized ovum which are not used will not constitute murder. But once born, the child should be
considered human since it came from the egg and sperm cell of humans.

Another consideration is when the embryo is transplanted to another women, what is the
legal parenthood of the child? In response to this, the Federation's Committee on Medical Ethics
stated that having a surrogate mother to carry the child of a couple is only permissible if there is
no alternative to help the condition of the infertile parents. Furthermore, Britain's Chief Rabbi
Immanuel Jakobovits claimed that engaging in such arrangement for the convenience of the
biological mother is offensive to moral susceptibilities.

Organ transplantation was also tackled and the rule that a transplanted organ becomes the
part of the body of the recipient was mentioned. However, this rule may not be applicable to
embryo transfer. The infused cells retained the genetic identity of the donors. This only follows
the logic that if the surrogate mother becomes the mother, it can be said that if artificial incubator
will be possible then the incubator will be the mother.

4. Cotton, K. (2001). Surrogacy Should Pay. Proquest , 320 (7239), 928-929.

The author mentioned Baby Cotton in the article who was born through surrogacy
arrangement. After the birth of the child, a law was passed to the parliament in UK
banning commercial surrogacy. However, voluntary surrogacy persisted through the
effort of Childlessness Overcome Through Surrogacy (COTS). By that time, natural
surrogacy was the only option but on 1989, host surrogacy was introduced. This was
perfected through the use of In Vitro Fertilization. Host Surrogacy became a medical
solution for couples who want to have a child genetically related to them. Through
years, surrogacy worked well through proper screening and counselings before, during,
and after the procedure.

It was a wise step to organize an independent ethics committee that will approve
cases to protect the baby, who is the most important consideration. The committee
should assess if the biological mother is capable to look after the child as he grows and
assure that the host mother is on the right age, maximum is 37 years old, and had one
child of her own to ensure that the mother is an experienced one in pregnancy.

Section 30 of 1990 Human Fertilization And Embryology Act was provided for the
adoption of surrogate babies and presented the legal establishment and acceptance of
surrogacy. The author believed that surrogate mothers should be compensated for the
sacrifices made before, during, and after the methodology.

To end the article, the author gave her ideal solution to surrogacy. There can be someone
who will monitor all forms of surrogacy through licensed In vitro Fertilization units in all
the regions of the country. There should be a fee to be collected which shall include the
counseling fee since this is integral part of the procedure. The couple should register in
IVF clinic and pay a registration fee. Also, those who want to be a host mother should
register but without a fee. All expenses should be paid by the clinics from its fund which
came from the registration fee of the couples. The author suggested to maintain the no
commercialism policy and claimed that involving in such clinics is a matter of choice, the
couple can opt to seek help or can take absolute control and engage in commercialized
one. But whichever method taken, Cotton concluded that it will bring joy that is
immeasurable.

5. Chang, M. (2009). Womb for Rent. Harvard International Review, 11-12.

India was the largest to attract foreign investors not only in terms if typical jobs just
like I.T services but also in international surrogacy business. There was an dramatic
growth of the business probably because of the affordable price and loose legal
restrictions in the country. It was in 2002 that commercial surrogacy was legalized
however there were still issues on it which called for further development of the legal
monitoring and regulation.

In USA the procedure will a cost US$ 70,000 for a couple who want to consider
surrogacy compared to India which was only 1/7 of the cost in USA. Furthermore,
Indians were preferred because they were good in speaking in English and have
advanced medical technology. In return, some will be tempted to grab such job because
of the salary. Fertile Indian women will just go to infertility clinics in major cities and will
be given new houses, or money to pay debt, or investments for own child's future. Also,
they can get US$ 6,000 for the procedure which for some is equivalent to 15 years of
working.

Some countries banned this because of class, gender, and race exploitation and to
name a few were UK and Australia. In 1991, France concluded that human body should
not be rented or sold out. In response to this was the claim that such procedure
provides mutual benefit for the biological parents and host mother. For quite some time,
there is still no law for regulation of fertility clinics in Indian law, that's why the clinics
provided self-imposed regulation which are more than adequate. There were screenings
and counselings for both parties. And the egg cell that will be used is of the biological
mother. In the present situation, there is now Assisted Reproductive Technology bill
which was written on 2005 and now up for debate. This bill seeks to protect the rights of
the surrogate mothers. The author recognized the lack of legal infrastructure which
need to be addressed as soon as possible. And suggested that proper monitoring be
done to ensure health and happiness of parties.

6. Campbell A. (2000). Rights and Duties: A Partial Commentary. Health Care Analysis, 8,

35-40.

Campbell provided a commentary and the highlights of the debate between

Elizabeth Anderson and J.K. Swales together with Hugh McLachlan, and on the paper
of John Harris "The Welfare of the Child".

Anderson vs. Swales and McLachlan. The issue here was whether or not
commercial surrogacy constitutes an ethically unwarranted commodification of children.
Swales and McLachlan argued that it is wrong to sell a child however when it comes to
commercial surrogacy it is not the child that was being sold but the arrangement, therefore
legally enforceable. Campbell commented on the mentioned argument to which he said
that it Swales and McLachlan appeared to be pleased with the child purchase as long
as good consequences come of it. Anderson opposed Swales and McLachlan claiming
that surrogacy carries with it the duty to first consider the child's welfare. The author
agreed with Anderson stating that child purchase and financial reward for giving up
one's child for adoption are morally wrong and must be illegal.

Harris. His paper was not mainly concerned on surrogacy but on the flaws of Brazier
Report and HFE Act. The issues related were whether or not commercialization is
morally acceptable and whether or not contracts to hand over a child is enforceable.
There was no direct answer to this but Harris reiterated that the child to be born should
be given the highest priority. Harris attacked the Brazier Report written by Campbell and
in return Campbell concluded that Harris' essay added more confusion. For the record,

the Brazier Report agreed that surrogacy should be carefully regulated and protected
from commercial pressures. This regulation can be an aid to achieve better balance
between the surrogate mothers and couples.

7. Ahlsarmadi, L. (2012). The Rights and Obligations of Parties to the Surrogacy

Contract. Interdisciplinary Journal of Contemporary Research in Business, 4 (5),

164-

175.

Infertility was solved by assisted reproductive technologies and one of these is

surrogacy. The parties here were the surrogate mother and the couple whose wife lack
the capacity to bear child due to some medical conditions. Surrogacy contract had no
exact definition and it comes in different types and forms. But basically this is a
agreement that binds the parties. There were 2 main groups, commercial surrogacy and
altruistic surrogacy. In the first type, payment of determined amount for the service was
written in the contract while on the second type no big amount of money is involved,
only the necessary cost. The nature of surrogacy contract is not of lease contract of a person.
No one becomes the owner of another persons but merely offers a service. This is the same as
renting to breastfeed the baby when the mother cannot produce milk.

The parties on the contract have the rights and duties. The legal parents is oblige to
pay wage to the surrogate mother, pay necessary costs as enumerated, and take the
delivery of the born baby in appointed time. On the other hand, the surrogate mother is
oblige to accept the embryo, hold and nurture it and give birth, deliver the baby at the

appointed time, and take care of the baby within the agreed period. Both parties have
the right to get what is due to them.

The author concluded that surrogacy contract gives birth to both rights and
obligations. However, those cannot be exactly enumerated and determined because
this may differ from one contract to another. It depends upon the stipulation of the
parties.

8. Blackburn, C. (2009). Family Law- Who is a Mother? Determining Legal Maternity in

Surrogacy Arrangements in Tennessee. The University of Memphis Law
Review, 39 (2), 349- 382.

Blackburn established surrogacy as a choice for infertile couple in his paper. Before,
there were only two choices whether to accept infertility or adopt a child. But
reproductive technology paved way for having a child genetically related to the infertile
couple and with that surrogacy became the prevalent method. There were three types:
a) Traditional Surrogacy (sperm cell of husband and egg cell of surrogate mother), b)
Gestational Surrogacy (sperm cell of husband and egg dell of wife), and c) Donor
Surrogacy (sperm cell of husband or egg cell of wife and the donor's cell).

He provided 4 significant tests in determining the legal mother: a) The Intent Test
where one who intended the birth of the child is the legal mother, for example was the
case Johnson vs. Calvert; b) Genetics as a Test which is the most determinative factor,

example was the Belsito vs. Clark case; c) Gestation as a Test where the legal mother
is the one who gave birth to the child and this was used in deciding the A.H.W vs. G.H.B
case; and d) Best Interests of the Child Test where the court will look at the ability of
parents to nurture the child in all aspects.

Tennessee's court only used the other states' statutes on surrogacy and the Uniform
Parentage Act by NCCUSL in deciding surrogacy related cases. With that the author
emphasized the the need for surrogacy law in Tennessee which should include
guidelines, restriction of parties, and surrogacy contract.