What is surrogacy? Ethical debate and risks

A large proportion of the population wants or intends to have children at some point in their life. 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 seeking to have offspring. In these cases there may be different alternatives, one of them being surrogacy.

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The concept of surrogacy

Surrogacy is understood as a reproduction technique by which a woman voluntarily gestates a child for a person or partner outside her. The person who is going to carry the baby is the so-called pregnant woman, while those who request the pregnancy are called intentional parents.

This technique requires a formal agreement between both parties, whereby the first agrees to carry the couple's baby, renounce motherhood and deliver the child to the couple in question while the latter agree to take care of the child and, if there is one, deliver a fee to the pregnant.

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

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

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Types of surrogacy

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

1. Partial or linear surrogacy

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 minor. Thus, it is the pregnant woman who lays the egg that is going to be fertilized by the sperm of the intended father.

2. Complete or gestational surrogacy

In this type of surrogacy, the pregnant woman does not have any biological link with the future child. Egg and sperm are provided by the couple, whether they are their own or resort to those of another person outside the pregnant woman. It is the most common.

3. Altruistic surrogacy

It is a type of surrogacy in which the pregnant woman does not receive any type of remuneration for the fact of carrying the baby, this being previously agreed and accepted. The exception is medical expenses or the loss of possible financial earnings. as the pregnant woman cannot exercise her profession.

4. Commercial surrogacy

In this type of surrogacy, the agreement between the pregnant woman and the intended parents establishes a certain payment in exchange for carrying out the baby's gestation.

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Controversy and debate around this type of pregnancy

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

One reason for discussion is the link between the right to sexual freedom and dignity in pregnant women. Associations and groups against indicate that surrogacy is an attack on sexual freedom and the dignity of pregnant women, which is forced to comply with the agreement even if it changes its mind during the pregnancy and which is commercialized, and of the rights of the gestated minor himself.

However, those in favor consider that it must be taken into account that surrogacy supposes a mutual and accepted agreement between pregnant woman and intentional parents, not violating the rights or freedoms of any of those involved and being an act carried out voluntarily and freely.

Commodification of motherhood

A second reason for controversy stems from the consideration by some groups against the fact that motherhood is being commercialized. These groups propose that pregnancy is used as a mechanism to obtain a monetary reward, which can ultimately lead to individuals with high economic capacity take advantage of the desperation of low-income women.

Linked to this is discussed is the fact that The creation of networks and mafias dedicated to forced surrogacy is promoted. On the other hand, the people in favor indicate that it is possible to regulate this process legally (being the absence of legality what facilitates the creation of networks) and indicates the possibility of making a non-profit agreement (that is, using surrogacy altruistic).

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The alternatives 

Another reason why the existence of surrogacy is debated is due to the existence of other methods to have children, like adoption. However, it must be borne in mind that this, at present, is difficult to achieve. Adopting requires complex, expensive and very lengthy procedures (in some cases it can take up to five years or more between initiation and effective adoption) that sometimes not enough resources are available to front facing.

In other cases, not all of the requirements demanded for this are met, despite the fact that many of them may be due to bureaucratic aspects that are not linked to the parental capacity of the children. applicants. Finally, there are also people who want to have children who are linked by a consanguinity relationship (that is, they want them to be their children biologically).

How does it affect children?

The reason for debate is also how the knowledge of this fact can affect the pregnant child through this medium. The investigations carried out show that there are no notable alterations yet in the case of partial surrogacy (Except perhaps curiosity about their biological parent, similar to what happens in adoptees).

Various studies indicate that the majority of parents who resort to this medium inform their children of cHow it was gestated at an early age, before the age of seven. No type of difficulties have been reflected in the minors themselves. Only in cases where this information is hidden and discovered during adolescence, or is experienced or transmitted as something shameful or negative can generate negative responses towards fathers.

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

Legal situation in different countries

Surrogacy has a different legal status depending on the country or region, being legal in some countries and illegal in others. And even in cases where it is legal, differences and limitations may be found that allow only certain type of population can access surrogacy or that it is carried out only if it occurs in a altruistic.

Legal situation in Spain

Currently, surrogacy it is not legal in Spain. At the legal level, it is considered that the legal mother of the minor would be the woman who has gestated him, and considers void any contract in which the right to maternity is waived in favor of third parties people.

Most of the people who want to resort to this type of pregnancy in our country must resort to traveling to other countries where it is allowed, and even so they may face difficulties when the maternity or paternity of the child in question is recognized 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 donor of the sperm.

For the child to be recognized as the child of the parents who resort to surrogacy the pregnant woman must renounce motherhood and leave only the sperm donor father as the legal father, so that his partner can later adopt him. The exception to this fact occurs in countries such as the United States, Canada or Greece, in which filiation is admitted once it has been judicially accepted in these countries.

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

Current situation in Portugal

Portugal has recently decided to draft a law that allows surrogacy, although only in the case of couples in which the woman cannot conceive naturally. However, this law leaves out single people and homosexual couples (whether it is two men or two women). It is also established that the pregnant woman cannot receive financial compensation, and that once the minor is born, he may not have more contact with him 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 be applied to any type of family regardless of sexual orientation or the existence or not 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, and it is allowed as long as it is altruistic and the mother gives up the right to maternity. It is required that at least one of the parents has a genetic connection with the child, and only people in a relationship have access (be they heterosexual or homosexual couples).

Current situation in Russia

In Russia, surrogacy is legal whether it is altruistic or commercial and for both heterosexual couples and single people, although not for gay couples.

Current situation in India

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

Legal situation in Argentina

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

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

Current situation in Brazil

As in Argentina, there is also no clear law that regulates this practice. However, it is allowed as long as it occurs altruistically and the pregnant woman is a family (up to the fourth degree) 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 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 in: 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).