Surrogacy

SURROGACYSURROGACYReproductive Technologies and the Law

UUK4763

Definition

♥ Where “one woman carries a child for another woman with the intention that the child should be handed over after birth” (Warnock Report).

♥ Why surrogacy?

i.To fulfill the desire of the male partner of the infertile woman to have his on biological child;

ii.Women who do not want to undergo pregnancy due to various reasons such as health, career etc.

Types of Surrogacy

Full Surrogacy

Donor surrogacy

Partial Surrogacy

Types of surrogacy: (1) Full Surrogacy

Types of surrogacy: (2) Partial Surrogacy

Fertilised using IVF

Also known as “IVF Surrogacy”

Types of surrogacy: (3) Donor Surrogacy

The Issues

‘Fertility treatment: surrogacy in Malaysia’

• “Surrogacy is when another woman carries and gives birth to a child for you. Though it can be an emotionally intense and legally complex arrangement, it is growing in popularity in many countries. In Malaysia, too, surrogacy is believed to be increasingly popular as a way for infertile couples to have a baby. However, there are no reliable statistics about surrogacy in Malaysia as they are private arrangements. There are, as yet, no civil laws addressing the use of surrogates to have a baby. However, religious authorities have issued a fatwa making surrogacy haram for Muslims.”

http://www.babycenter.com.my/a4099/fertility-treatment-surrogacy-in-malaysia#ixzz2voJojmdK



‘Single mums opt to become surrogate mothers for a fee’

• MANY financially-strapped single mothers in Malaysia have become surrogate mothers for childless couples from Singapore.

• China Press reported that the women were willing to do it for a fee. The report said that many childless couples in Singapore were willing to pay S$40,000 (RM100,000) for such services, even if the surrogate mother’s name was listed as the baby’s mother on the birth certificate.

• The Star Online, 28/10/2013

The Law: Malaysia

• ► No direct law on surrogacy;

• ► Refer to Section 12 MMC Guideline:

• “…the above practice is not acceptable to most of the major religions in this country. Such a surrogate pregnancy

can potentially lead to many legal dilemmas for the persons involved.”

The Law: Malaysia

S. 112 Evidence ActA child born during

the continuance of a valid marriage is deemed as the

legitimate child of the man.

Implication = the surrogate’s

husband shall be deemed as the father of the

child!The commissioning father and his wife has No legal

rights!

The Law: Malaysia

S. 87 LRMDA 1976

S. 2 = defines child as “child of the marriage”

If the surrogate mother is married, she is deemed as the mother of the child; her husband

as the father

If the surrogate mother is unmarried,

the child shall be deemed as an

illegitimate child!

The Law: Malaysia• However, the commissioning parents may apply to legally adopt

the child;

• But, what if the surrogate mother fails to honour the agreement made and refuses to give up the child to the commissioning parents?

• Can the contract be legally enforceable in Malaysia? [s.24(e)(e)Contract Act)

The Law: United Kingdom

• Commercial surrogacy is PROHIBITED under The Surrogacy Arrangements Act 1985; (i.e. contract never existed & the child is the child of the surrogate.)

• S. 33 HFEA 2008 – “the woman who is carrying the child is the mother..”; i.e. the surrogate mother is deemed as the mother.

• Legal parenthood can be transferred to the commissioning parents through adoption.

The Islamic View• Surrogacy is PROHIBITED in Islam;

• Reason : To protect one of the essential values (objective of Shariah) i.e. progeny/ nasab;

• That’s why Islam only allows procreation within a valid marriage;

• Refer to the National Fatwa issued:• “Haram guna ibu tumpang walaupun sperma dan ovum diambil daripada suami/isteri kerana ia akan menyebabkan

berlakunya kekeliruan nasab anak tersebut.”

The Christian View

• “The U.S. bishops address this question in the fourth edition of the USCCB text Ethical and Religious Directives for Catholic Health Care Services:

Directive 38: When the marital act of sexual intercourse is not able to attain its procreative purpose, assistance that does not separate the unitive and procreative ends of the act, and does not substitute for the marital act itself, may be used to help married couples conceive.

Directive 41: Homologous artificial fertilization (that is, any technique used to achieve conception using the gametes of the two spouses joined in marriage) is prohibited when it separates procreation from the marital act in its unitive significance (e.g., any technique used to achieve extra-corporeal conception).”

The Hindu View

• Dr. Anand Kumar, Ph.D., Chairman of Hope Infertility Clinic and Research Foundation opines:

• “Hindus have never seriously debated assisted reproduction because of their belief in karma, which preordains the kind of life an individual would lead after birth. There is no conflict between Hinduism and assisted reproduction, which is generally accepted as a form of treatment and not an infringement on religious beliefs.”

• He believes that “surrogacy meets all three pillars of medical ethics: autonomy (allowing people to decide for themselves); beneficence (doing good); and non-maleficence (doing no harm).”

The Buddhist View

• “Buddhists believe that whenever life begins it is special no matter the means. They have very little tolerance for being childless due to the idea in traditional Chinese culture that a family without a child is less than perfect. Therefore, Buddhist followers in general, believe that any intervention in nature is undesirable but is tolerated more than being childless. Asian societies place an extreme importance on having a child, with most childless couples ending in divorce. While they do not have a moral issue with infertility treatments such as IVF and gamete donations, they do not condone compensating a surrogate. Buddhists believe that having a child is extremely important and if a couple chooses to complete their family with ART it will not compromise their faith. “

• “Exploring Religious Aspects of Infertility Treatments”by: Mindy Berkson

•

Ethical/Moral IssuesEthical/Moral Issues

Issue 1: Fetal-Maternal BondIssue 1: Fetal-Maternal Bond

• Surrogacy destroys the essential bond between mother and child during pregnancy and after birth;

• Scientific evidence suggests that such a relationship/bonding is crucial to the child’s development;

• E.g. studies pointed out that the interactions/contact between mother and child such as skin-to-skin, eye-contact or breastfeeding releases oxytocin that enhances physiological process that help babies to develop;

• Also, from the moment of birth to a certain period of time, evidence shows that babies tend to form cognitive attachments through interaction with the gestational mother.

Issue 1: Fetal-Maternal BondIssue 1: Fetal-Maternal Bond

• Additional issue: 3 possible mothers

Mother???

Issue 2: Harm to Surrogate MothersIssue 2: Harm to Surrogate Mothers

Love for the child

ExploitationRisks of

pregnancy


• • 2.1. Love for the child

• Studies conducted revealed that surrogate mothers usually developed a strong bond with the child she has carried;

• Giving up the child caused severe psychological pain for her;

• Refer the issue on maternal-fetal relationship;

• Studies show that to reduce the pain for having to give up the child, surrogate mothers tend to think themselves as OBJECTS.


• Q:• “The question of whether the suffering of a childless woman

is greater than that of the gestational surrogate, who ‘abandons’ her baby, is solved when the surrogate mother is

de-personalised, and looked and looked upon solely as a ‘womb for rent’.”

• [Rosalie Ber, “Ethical Isses in Gestational Surrogacy “, Theoretical Medicine & Bioethics, 21:153-169]


Beneficence Doing good to the infertile woman

Non-malfeasance

Must prevent harm to surrogate mothers

Issue 2: Harm to Surrogate MothersIssue 2: Harm to Surrogate Mothers• 2.2. Risks of Pregnancy

• Pregnancy carries risks to the woman’s health;

• For surrogate mothers, these risks are undertaken for ‘nothing’ i.e. she will not be able to keep and care for the child.

• Q: Should such a risks be compensated with money? Will that amount to exploitation on women?


• 2.3. Exploitation on Women

• Feminists argue that women should be given the autonomy to do whatever they wishes with their body;

• If men can sell their sperm, why can’t women rent their womb?

• However, opponents argue that surrogacy exploits women;

• Warnock Report: Surrogacy is akin to treating women’s uterus as “mere incubator” for other people’s child.


• Also, what is there is a dispute between surrogate mothers and commissioning parents?

• E.g. if prenatal diagnosis indicates that the child she is carrying is deformed and the commissioning parents request that the child be aborted?

• Here, there might be a conflict in moral values held by the surrogate mother and the commissioning parents.

• Can the surrogate mother refuse the abortion?

Issue 3: Welfare of the Child

Risks of custody battle

Risks of abandonment if does not fulfill

parental expectations.

Conclusion• Solution? Should surrogacy be permitted?

• Or, alternatives:

Womb Womb TransplantTransplant EctogenesisEctogenesis

Documents

Surrogacy