Surrogacy: a family‐building option in search of legitimacy

Regardless of the opposing views of governments, religions or different cultures, those afflicted with uterine anomalies, recurrent miscarriages or repeated implantation failure, or people who are in a same-sex union, view surrogacy as their only family-building solution. Rules and regulations on surrogacy vary around the world: (1) In some countries, surrogacy is regulated by central government. Russia is one example where surrogacy, including commercial surrogacy, is permitted by law. The legal aspects of surrogacy are stipulated by the Family Code of the Russian Federation and the Russian Law on Population Healthcare; (2) In some countries, surrogacy is relegated to the private sector. In the USA, for example, there are no federal laws or regulations governing the process of surrogacy. Instead, surrogacy is arranged between private parties through contracts; (3) In some countries, surrogacy is prohibited, for example, China, France and Japan prohibit all forms of surrogacy.1, 2 Recently, the possibility of legalising surrogacy was heavily debated in China at the 12th Standing-Committee Meeting of the National People's Congress (NPC) with an eye toward amending the ‘Population and Family Planning Law’. Due to its perceived importance and the attendant controversy, the NPC recommended that surrogacy be addressed at a later date through special legislation. It follows that at the present time surrogacy remains illegal in China as per the ‘Regulation of Assisted Reproductive Technology’. Patients who suffer from incurable uterine disorders may wish to have their own children through surrogacy. This is particularly true in developing countries such as China. According to a report released on 26 February 2015 (Statistical Communique of National Economy and Social Development of China, 2014), China is home to 447 million women aged 16–60 years. It is estimated that approximately 2.7 million of these women are unable to conceive due to uterine factors such as congenital absence of the uterus or primordial uterus, intrauterine adhesions or severe adenomyosis (Table 1). At the Center for Reproductive Medicine, Shandong University, alone, approximately 2.1% (15/140) of couples undergoing assisted reproductive technology treatment chose to have their babies by surrogacy (Table 2) before restrictions on surrogacy were implemented by the ‘Regulation of Human Assisted Reproductive Technology’ in 2001.3 Now, in our centre alone, more than 10 000 couples seek in vitro fertilisation (IVF) therapy every year, and the demand for surrogacy is likely to be much greater. Prohibition of surrogacy remains highly controversial. First, prohibition of surrogacy deprives those in need of their right to procreate. Indeed, as per the ‘World Population Plan of Action’ of 1974, a couple has the right to determine whether and when to bear a child. Secondly, prohibition of surrogacy leads to the development of ‘underground grey markets’ that operate in the absence of rules. By searching a public internet database, more than 120 surrogacy agents can be found in China, covering approximately two-thirds of China's provincial capital cities. However, there are no rules or regulations to be followed. Thirdly, the prohibition of surrogacy is socially unjust, in that surrogacy effectively becomes the ‘right’ of the wealthy. In some countries that currently permit surrogacy, such as India, surrogacy has been developed to promote ‘medical tourism’ from countries wherein surrogacy is prohibited. Hundreds of couples travel to India each year to use surrogates in a largely unregulated industry estimated to be worth several hundred million pounds a year. That makes it a ‘special service’, but only for the wealthy. In October 2015, the Indian Government indicated that it would ban foreigners from using resident surrogate mothers, a move likely to curtail the booming local commercial surrogacy business. These complications may impede legislation on surrogacy, but at the same time they are important reasons to regulate, not prohibit, this medical treatment. In the USA, the Council for Responsible Genetics (CRG) has classified surrogacy10 as partial (also known as traditional surrogacy) or full (also known as gestational surrogacy). Partial surrogacy entails an agreement by the surrogate mother to donate eggs. She is therefore both the genetic and gestational mother of the baby. This may cause social, ethical and legal conflicts. First, there is the possibility of negative behaviour by the parents towards a partial genetically related child. This could affect the child's sense of identity and psychological well-being. Secondly, ethical issues may be raised: for example, whether the genetic link to the surrogate will create conflict, whether the donor should be anonymous to the child, and whether ethical issues may be raised later that could affect the child's life, for example, marriage with a possible half-sibling. Thirdly, partial surrogacy can raise complex issues if the child suffers from a heredity disease. In contrast, full surrogacy occurs when a woman undergoes IVF to carry a fetus that has no genetic or biological link to her; in essence, she provides a ‘womb for rent’. This arrangement cuts off the biological connection between the surrogate and the baby, and therefore simplifies the relationship among the intended parents, the surrogate and the baby. It is generally agreed that full surrogacy is more socially acceptable. Compensation constitutes one of the key factors that requires regulation in the context of surrogacy. Compensation is also the major cause of many of the legal disputes surrounding surrogacy. From the ethical perspective, commercial surrogacy makes the process a ‘service’ that can be traded. Under such circumstances, the surrogate is considered just an ‘incubator’. The economic profit will attract some women from poor socio-economic backgrounds to act as a ‘womb for rent’ for the rich. This leads to a boom in development of the surrogacy business and ‘surrogacy villages’. In such cases, the baby is considered a product, although trade in babies is illegal in countries worldwide. In the UK, the Human Fertilisation and Embryology Act (1990) prohibits commercial surrogacy but allows altruistic surrogacy for a ‘reasonable fee’. However, it does not provide any detailed description or definition of what counts as ‘reasonable’. In fact, ‘reasonableness’ is the key to deciding whether a process is commercial surrogacy. Some states in the USA (e.g. New York) which prohibit commercial surrogacy, define reasonable compensation as one that does not exceed the medical expenses.11 However, such regulations ignore the associated economic and work costs to the surrogate during the gestation. Therefore, a ‘reasonable fee’ should not be limited to just medical expenses but also include living costs and losses consequent to employment issues, though these are difficult to calculate. Considering the drawbacks of commercial surrogacy, the compensation provided to surrogates should be restricted by specific rules or state laws. Another major concern regarding surrogacy is the assignment of parental rights. Under the UK Human Fertilisation and Embryology Act (1990) the surrogate is deemed the legal mother of the child unless or until parenthood is transferred to the intended parents through a parental order or adoption after the birth of the child. However, in many other countries, in the absence of a legal framework, the matter of parental rights is usually established through surrogacy contracts. In yet other countries (e.g. Spain and India), the regulation requires the identity of the child and the surrogate mother to be known. When determining parental authority we should prioritise the interests of the child, while giving a full consideration to the genetic relationship between the intended parents and the child. It is generally accepted that the right to procreate is a basic human right that should not be denied. To those who cannot conceive, surrogacy is considered a treatment option for people who have a defective reproductive system. However, surrogacy is not only a medical issue but also a complex social problem related to laws and ethics. In surrogacy arrangements the rights and responsibilities of intended parents and surrogates should be clarified beforehand. Prior to the engagement of a surrogate, many issues including IVF or intracytoplasmic sperm injection procedures, possible complications, success rates, expenditure, risk of multiple birth and miscarriage, the lifestyle of the surrogate (i.e. if she smokes or drinks), caesarean section and any involvement of the surrogate in the future life of the baby should be discussed by both parties. In institutions that perform this reproductive technique, evaluation for approval of the client and the surrogate should also be supervised. In addition, psychological counselling should be provided throughout the entire process. It is expected that under such conditions, surrogacy procedures may be optimised in the service of those who wish to have their own child but are unable to conceive in any other way. None declared. LC and LL contributed to the conception and design of the work, to the analysis of data and to drafting the article. EYA revised the article. Z-JC supervised the entire project and revised the manuscript. All authors gave their final approval of the version to be published. We are grateful to Yizhou Liu and Zidan Chen for legal consulting, Yan Sheng and Lihong Xu for data collection, and Daimin Wei for manuscript revision. This research was supported by the National Natural Science Foundation of China 81501223), the Outstanding Young Scientist Scientific Research Foundation of Shandong Province (BS2014YY013), the National Basic Research Program of China (973 Program) (2012CB944700), the Major Program of the National Natural Science Foundation of China (8149073), and the Research Fund of National Health and Family Planning Commission of China (201402004).