her body my baby

Surrogacy [sur-uh-guh-see] is an arrangement in which a woman carries and delivers a child for another couple or person. This woman, the surrogate mother, may be the child’s genetic mother (called traditional surrogacy), or she may be biologically unrelated to the child (called gestational surrogacy).

If the surrogate receives compensation beyond the reimbursement of medical and other reasonable expenses, the arrangement is called commercial surrogacy, otherwise it is often referred to as altruistic surrogacy.

The intended parents, sometimes called the social parents, may arrange a surrogate pregnancy because of homosexuality, infertility, or other medical issues which make pregnancy or delivery impossible, risky or otherwise undesirable. The intended parent may also be a single man or woman wishing to have his/her own biological child. Although the idea of vanity surrogacy is a common trope in popular culture and anti-surrogacy arguments, there is little data showing that women choose surrogacy for reasons of aesthetics or convenience. The legality and costs of surrogacy vary widely between jurisdictions, with the result that there is a high rate of international and interstate surrogacy activity.

Having another woman bear a child for a couple to raise, usually with the male half of the couple as the genetic father, is referred to in antiquity. Babylonian law and custom allowed this practice and infertile woman could use the practice to avoid the divorce which would otherwise be inevitable.

In the United States, surrogacy issues fall under state jurisdiction and the legal situation for surrogacy varies greatly from state to state. The issue of surrogacy was widely publicized in the case of Baby M, in which the surrogate and biological mother of Melissa Stern, born in 1986, refused to cede custody of Melissa to the couple with whom she had made the surrogacy agreement. The courts of New Jersey found that Mary Beth Whitehead was the child’s legal mother and declared contracts for surrogate motherhood illegal and invalid in NJ. However, the court found it in the best interests of the infant to award custody of Melissa to her biological father William Stern and his wife Elizabeth Stern, rather than to the surrogate mother Mary Beth Whitehead.

There have been other cases of clashes between surrogate mothers and the genetic parents; unexpected complications with the fetus may lead to the genetic parents asking for an abortion, and the surrogate mother may oppose one. The legal aspects of surrogacy in any particular jurisdiction tend to hinge on a few central questions: Are surrogacy agreements enforceable, void, or prohibited? Does it make a difference whether the surrogate mother is paid (commercial) or simply reimbursed for expenses (altruistic)? What, if any, difference does it make whether the surrogacy is traditional or gestational? Is there an alternative to post-birth adoption for the recognition of the intended parents as the legal parents, either before or after the birth?

Although laws differ widely from one jurisdiction to another, some generalizations are possible: The historical legal assumption has been that the woman giving birth to a child is that child’s legal mother, and the only way for another woman to be recognized as the mother is through adoption (usually requiring the birth mother’s formal abandonment of parental rights).

Even in jurisdictions that do not recognize surrogacy arrangements, if the genetic parents and the birth mother proceed without any intervention from the government and have no changes of heart along they way, they will likely be able to achieve the effects of surrogacy by having the surrogate mother give birth and then give the child up for private adoption to the intended parents.

If the jurisdiction specifically prohibits surrogacy, however, and finds out about the arrangement, there may be financial and legal consequences for the parties involved. One jurisdiction (Quebec) prevented the genetic mother’s adoption of the child even though that left the child with no legal mother.

Some jurisdictions specifically prohibit only commercial and not altruistic surrogacy. Even jurisdictions that do not prohibit surrogacy may rule that surrogacy contracts (commercial, altruistic, or both) are void. If the contract is either prohibited or void, then there is no recourse if party to the agreement has a change of heart: If surrogate changes her mind and decides to keep the child, the intended mother has no claim to the child even if it is her genetic offspring, and they cannot get back any money they may have paid or reimbursed to the surrogate; if the intended parents change their mind and do not want the child after all, the surrogate cannot get any reimbursement for expenses, or any promised payment, and she will left with legal custody of the child.

Jurisdictions that permit surrogacy sometimes offer a way for the intended mother, especially if she is also the genetic mother, to be recognized as the legal mother without going through the process of abandonment and adoption. Often this is via a birth order, in which a court rules on the legal parentage of a child. These orders usually require the consent of all parties involved, sometimes including even the husband of a married gestational surrogate. Most jurisdictions only provide for a post-birth order, often out of an unwillingness to force the surrogate mother to give up parental rights if she changes her mind after the birth.

A few jurisdictions do provide for pre-birth orders, generally only in cases when the surrogate mother is not genetically related to the expected child. Some jurisdictions impose other requirements in order to issue birth orders, for example, that the intended parents be heterosexual and married to one another. Jurisdictions that provide for pre-birth orders are also more likely to provide for some kind of enforcement of surrogacy contracts.

Ethical issues that have been raised with regards to surrogacy include: To what extent should we be concerned about exploitation, commodification, and/or coercion when women are paid to be pregnant and deliver babies, especially in cases where there are large wealth and power differentials between intended parents and surrogates?

To what extent is it right for society to permit women to make contracts about the use of their bodies? To what extent is it a woman’s human right to make contracts regarding the use of her body? Is contracting for surrogacy more like contracting for employment/labor, or more like contracting for prostitution, or more like contracting for slavery? Which, if any, of these kinds of contracts should be enforceable? Should the state be able to force a woman to carry out ‘specific performance’ of her contract if that requires her to give birth to an embryo she would like to abort, or to abort an embryo she would like to carry to term?

What does motherhood mean? What is the relationship between genetic motherhood, gestational motherhood, and social motherhood? Is it possible to socially or legally conceive of multiple modes of motherhood and/or the recognition of multiple mothers? Should a child born via surrogacy have the right to know the identity of any/all of the people involved in that child’s conception and delivery?

According to professor Bryan Caplan, libertarians have, since Voltaire, emphasize the fact that it is not right to forbid people from doing things that others do not accept. According Caplan even paid surrogacy is beneficial because creating a human life is almost always good and voluntary exchange is usually beneficial for all participants.

Different religions take different approaches to surrogacy, which often relate to their stances on assisted reproductive technology in general. The Religious to assisted reproductive technology has followed orthodox lines, with the most fundamentalist sects condemning it altogether.

A 2002 study by the Family and Child Psychology Research Center in London concluded that surrogate mothers rarely had difficulty relinquishing rights to a surrogate child and that the intended mothers showed greater warmth to the child than mothers conceiving naturally. Anthropological studies of surrogates have shown that surrogates engage in various distancing techniques throughout the surrogate pregnancy so as to ensure that they do not become emotionally attached to the baby. Many surrogates intentionally try to foster the development of emotional attachment between the intended mother and the surrogate child. Instead of the popular expectation that surrogates feel traumatized after relinquishment, an overwhelming majority describe feeling empowered by their surrogacy experience.

These children lack a genetic and/or gestational link with their mother. A recent study (involving 32 surrogacy, 32 egg donation, and 54 natural conception families) examined the impact of surrogacy on mother–child relationships and children’s psychological adjustment at age 7. Researchers found no differences for maternal negativity, maternal positivity, or child adjustment, but the surrogacy and egg donation families showed less positive mother–child interaction than the natural conception families.

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