FOOLING NATURE: ETHICAL, SOCIAL, PSYCHOLOGICAL
AND LEGAL ASPECTS OF SURROGATE MOTHERHOOD
Dr. Sevtap METİN*
ABSTRACT
Surrogate motherhood is one of the contraversial topics in bioethics. Unfortunately,
this topic has not been argued sufficiently in Turkish Law Doctrine neither legal nor
philosophy literature. In this article, I aim analyzing surrogate motherhood with
ethical, sociological and legal even religios dimensions. Some sociological surveys
may elucidate surrogate mothers‟ motivations to become surrogate and their
expectations from surrogate contract. Surely, religious beliefs and convictions are
one of the essential factor affecting people‟s attitudes upon surrogate motherhood. It
would be also mentioned some arguments which are both against and advocate
commercial surrogate contracts with related to surrogate mother and surrogate baby.
Then, I will give some famous examples such as Baby M and Baby Manji Yamada
that are cases about the uncertain legal status of children resulting from a surrogacy
arrangement. In the last part of the article, I will attempt to compare legal
regulations of surrogate motherhood around the world. So, I will present actual legal
aspects of surrogacy in Turkey as well and I will call to both Turkish legislators and
public to reconsider existing legal ban in terms of surrogate motherhood.
Keywords: Surrogate motherhood, Kantian duty ethics, neutrality principle,
authonomy, objectification, alturistic surrogacy, commercial surrogacy, legal
regulations.
ÖZET
Taşıyıcı annelik, günümüz biyo-tıp etiğinin en tartışmalı meselelerinden bir
tanesidir. Bu konu, ne Türk hukuk doktrininde ne de felsefe literatüründe fazla
üzerinde durulmuş ve tartışılmış bir konu değildir. Makalenin amacı ise etik,
sosyolojik, hukuki ve dini boyutlarıyla taşıyıcı anneliği analiz etmeye çalışmak
olacaktır. Bazı sosyolojik alan araştırmaları, kadınları taşıyıcı anne olmaya yönelten
motivasyonları ve taşıyıcı annelik sözleşmesinden beklentilerini anlamamıza ışık
tutabilecektir. Şüphesiz dini inanç ve kanaatler, kişilerin taşıyıcı anneliğe yönelik
tutumlarını belirlemede önemli bir faktördür. Bunun yanı sıra ticari taşıyıcı anneliğin
leh ve aleyhindeki argümanlardan da bu makale içerisinde bahsedilecektir.
Sonrasında, taşıyıcı annelik sözleşmesinden doğan örneğin bu yolla dünyaya gelen
bebeklerin hukuki statülerinin belirsiz kalabilmesi gibi bazı hukuki problemlere ve
bu bağlamda konuya ilişkin belli başlı davalara değinilecektir. Makalenin son
kısmında ise taşıyıcı annelik hakkındaki bazı ülkelerin hukuki düzenlemelerinden
örnekler verilecek ve Türk hukuk düzenindeki durum saptanacaktır. Bu veriler
ışığında makalenin amacı, konu üzerinde hem Türk kamuoyunun hem de Türk yasa
*
Asst. Prof, Istanbul University Faculty of Law, e-mail: [email protected]
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Dr. Sevtap METİN
koyucusunun, mevcut yasağın ve hukuki düzenlemelerin üzerinde yeniden
düşünmesine vesile olmaktır.
Anahtar Kelimeler: Taşıyıcı annelik, Kantçı ödev etiği, tarafsızlık ilkesi, özerklik,
nesneleştirme, özgecil taşıyıcı annelik, ticari taşıyıcı annelik, yasal düzenlemeler.
***
INTRODUCTION
116
Although surrogacy is a quite new reproductive phenomenon, it can be
met similar practices to surrogacy in the Old Testament such as wellknown story of Abraham and Sarah who achieved their son by means of
surrogate mother. According to the statements of Old Testament,
Abraham's barren wife Sarah, said to her husband, "Behold now, the
LORD has restrained me from bearing: I pray thee, go into my maid
Hagar; it may be that I may obtain children by her1." Similarly, Rachel
who was the barren wife of Jacob, said to her husband, "Behold my maid
Bilha, go into her; and she shall bear upon my knees, that I may also have
children by her”2. Technological breakthroughs in science and medicine
especially introduction of in vitro fertilisation (IVF) have reintroduced
the ancient practice of surrogate motherhood into the modern ages.
However, these Biblical instances are quite different from modern
surrogacy practise. Because while it is evident that the Biblical surrogates
were conceived through the natural ways, surrogates of modern times are
conceived without sexual intercourse by using IVF 3
1
2
3
(Genesis 16:2 (Jerusalem Bible and King James Version). See. Janice C. Ciccarelli, Linda J.
Beckman, “Navigating Rough Waters: An Overview of Psychological Aspects of Surrogacy”,
Journal of Social Issues, Vol. 61, No. 1, 2005, pp. 21-43.
(Genesis 30:3 (Jerusalem Bible). Avi Katz, “Surrogate Motherhood and the Baby-Selling Laws”,
Columbia Journal of Law and Social Problems, No: 1, 1986, pp.1-55.
In European history, particularly in Spain, kings took in several surrogate mothers until they
had a son. The surrogate mother of the child then became nanny to all of the royal children. The
children believed in to be genetically related to the king and the queen. Obviously, things like
this were kept secret. http://EzineArticles.com/2458369.
It is also confirmed by anthropological studies that there are some civilizations in which social
and biological parents are not the same. For example, in Kgatla tribe of Southern Africa, when a
aquaintance couple have no children, another couple may decide that their next child would be
"born for" the infertile couple. Sharyn Roach Anleu, “Surrogacy: For Love but Not for Money?”,
Gender and Society, Vol. 6, No. 1, 1992, pp. 30-48.
George Palattiyil, Eric Blyth, Dina Sidhva, Geeta Balakrishnan, “Globalization and cross-border
reproductive services: Ethical implications of surrogacy in India for social work”, International
Social Work, 53, ( 5 ), 2010, pp.686-700; Rosalie Ber, “Ethical Issues in Gestatıonal Surrogacy”,
Theoretical Medicine and Bioethics, No:21, 2000, pp. 153-169.
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Dr. Sevtap METİN
1. Definitions of the Basic Terms on Surrogate Motherhood
Before introducing further explanation of surrogate motherhood, it will
be appropriate to give some basic definitions related to the topic.
Surrogacy is an alternative assisted reproductive method to infertile
couples. The couple who make an agreement with the surrogate mother
to carry a foetus and to relinquish that baby to them following birth is
referred to as the intended, social or commissioning or contracting
parents.
There are two major types of surrogacy arrangements: traditional
surrogacy and gestational surrogacy*. In traditional surrogacy, the
surrogate mother is conceived with the sperm of the male partner of the
intended couples and her own ova. In this case, the surrogate woman is
both the genetic and birth mother and the male partner of the intended
couples is also the genetic father.
Because of the artificial womb experiments is still in elementary level,
there is already no alternative to gestational surrogacy for wombless
women desiring genetic offspring under present circumstances4.
Gestational surrogacy is used when the female partner of the intended
couple has healty eggs but is unable to complete a pregnancy
successfully. The intended mother‟s eggs are fertilized with the sperm of
her partner in the laboratory by in vitro fertilization (IVF) and the embryo
is transferred into the “surrogate” mother‟s uterus. In gestational
surrogacy, the surrogate woman does not have any genetic connection to
the child and the intended parents are also the genetic parents5. Surrogacy

*
4
5
It can be noticed easily in the light of the given definitions, it is hard to find terminological unity
and accordance. Traditional surrogacy is referred as “full surrogacy” in literature sometimes.
Full or traditional surrogacy is also called and known “genetic” surrogacy by some scholars in
the literature. Susan Golombok, Fiona MacCallum, Clare Murray, Emma Lycett, and Vasanti
Jadva, “Surrogacy families: parental functioning, parent–child relationships and children’s
psychological development at age 2”, Journal of Child Psychology and Psychiatry, 47:2 (2006),
pp. 213-222.
Gestastional surrogacy is also called and titled “non-genetic” or “full” surrogacy by some
scholars in the literature. Golombok, MacCallum, Jadva, “Surrogacy families: parental
functioning, parent–child relationships and children’s psychological development at age 2”, pp
213-222.
But there is good news for wombless women nowadays. It would be mentioned uterus
transplantation in the last chapter of this article.
Ciccarelli, Beckman, “Navigating Rough Waters: An Overview of Psychological Aspects of
Surrogacy”, pp. 21-43; Noa Ben-Asher, “The Curing Law: On The Evolution Of Baby-Making
Markets”, Cardozo Law Revıew, Vol. 30, No:5, 2009, pp.1885-1924; Patricia Donovan, “New
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Dr. Sevtap METİN
can also be categorized into altruistic surrogacy and commercial
surrogacy: In altruistic surrogacy, there is no any payment to surrogate,
whereas in commercial surrogacy, surrogate receives a fee for her
services6.
118
Figure 1. In above scheme, it is shown all possible combinations of
offspring resulting from a surrogate arrangement. In all instances, the
gestation is with the surrogate mother. So it is also possible for a child to
have parents up to five: an egg donor, a sperm donor, a surrogate who
gestates the foetus and the couple who raise the child7.
Surrogacy is mainly performed due to the following reasons:
a) Absence of the uterus,
b) Risky pregnancy or delivery due to chronic diseases such as heart
diseases or cancer,
c) Frequent miscarriage resulting in infertility,
d) Failure of infertility therapy by ectopic pregnancy8.
6
7
8
Reproductive Technologies: Some Legal Dilemmas”, Family Planning Perspectives, Vol. 18, No.
2 (Mar. - Apr., 1986), pp. 57-60.
Aristides N. Hatzis, “From soft to hard paternalism and back: the regulation of surrogate
motherhood in Greece”, Portuguese Economic Journal, Volume:8, Nr:3, 2009, pp.205-220.
Olga B.A.van den Akker, “Psycho-social aspects of surrogate motherhood”, Human
Reproduction Update, Vol.13, No.1, 2007, pp. 53–62.
Monir Pashmi M.A., Seyed Mohammad Sadegh Tabatabaie Ph.D., Seyed Ahmad Ahmadi Ph.D.,
“Evaluating the experiences of surrogate and intended mothers in terms of surrogacy in
Isfahan”, Iranian Journal of Reproductive Medicine, Vol.8, No.1, Winter 2010, pp: 33-40.
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In the typical circumstances, a surrogate mother conceives, carries the
child for nine months, gives birth, then hands over the child to the
infertile couple and relinquishes her parental rights.
Although surrogacy is compared to adoption, there is a basic difference
between them. Surrogate motherhood makes possible full or partial
genetic link between the child and its parents whereas in adoption the
child is not genetically related to both parents. Moreover, the parents can
have a chance to select the surrogate with particular features or
characteristics whatever they desire. Another important difference
between surrogacy and adoption is that in surrogacy, the surrogate
mother and intended parents consciously decide to hand over the child
from the gestational mother to the intended couple before the conception
and birth. But in traditional adoption situation is dealt with finding the
best solution for an “existing” child, in other words, biological mother is
conceived as a result of her relationship and her baby is about to be born
or has been already born. We should emphasize one more time that in
surrogacy, -as contrary to adoption- child is created after sorrogacy
arrangment in order to satisfy the needs of infertile couples who are
unable to carry the pregnancy to term9.
2. Some Surveys on Surrogate Motherhood
2.1. Researchs Related to the Surrogate Mothers’ Motivations and
Expectations
In this chapter, it will be mentioned some research samples upon the
surrogate mothers particularly about what kind of motivations they have
and what they expect from surrogate arrangements.
In a study which was conducted by Ciccarelli (from USA), 14 surrogate
mothers were asked to report their feelings concerning relinquishing the
child. One of them reported emotional distress over the relinquishment
and two others reported a strong instinctual bond with the child. On the
other hand, the remain 11 reported not to feel any bonding with the child.
Surrogates expressed their feelings such as: „„I had it in my mind from
the beginning that it was not my child, I didn‟t feel bonded‟‟, or „„I
9
Katz, “Surrogate Motherhood and the Baby-Selling Laws”, pp.1-55; Van den Akker, “Psychosocial aspects of surrogate motherhood”, pp. 53–62; M. M Tieu, “Altruistic surrogacy: the
necessary objectification of surrogate mothers”, Journal of Medical Ethics, Nr. 35, 2009, pp.171175; Ber, “Ethical Issues In Gestational Surrogacy”, pp.153–169; Brenda M. Baker, “A Case for
Permitting Altruistic Surrogacy”, Hypatia, Vol. 11, No. 2, (Spring 1996), pp.34-48.
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almost felt guilty for not feeling bad about giving up the baby‟‟. These
statements of surrogates may indicate that majority of them did not see
any problem relinquishing the child. Other result of Ciccarelli‟s research
is in most cases, satisfaction or dissatisfaction was related to relationship
with the couples. However, surrogates may have maintained some
reduction strategies to cope with their loss, and this probability implies
that the issue is much more deep-seated10.
In another study which was done by van Zyl and van Nierkerk, the
typical responses given by surrogate mothers, with regard to how they
felt about their relationship with the foetus, were as follows: „„I don‟t
think of the baby as mine. „„The baby isn‟t mine. I am only carrying the
baby‟‟ and „„I am strictly a hotel‟‟.
120
An interview of 19 surrogate mothers in England by Baslington showed
that for 11 women, payment was as a motivator for undertaking
surrogacy while for seven women it was not the sole reason. Remaining
eight reported that they did not seek any financial gain. The majority of
the surrogates expressed that they were able to cope well with the
relinquishment and if a good relationship was developed with the
commissioning couple, temporal unhappines dissappeard, then it also
became easier the burden of relinquishment. However, the study also
revealed that one of the surrogates kept suffering during two and a half
year due to feelings of guilt and regret after relinquishing her baby.
Another surrogate found hard to relinquish her baby, suffered from postnatal depression and experienced a sense of guilt11.
It was also shown by Vasanti Jadva‟s research (2003) in England that
only one surrogate mother reported money as a motivating factor. The
research revealed that without any exception, all of 34 surrogate mothers
complied with the agreement and handed over the child to the intended
parents. According to the study, 32% of surrogate mothers experienced
mental and emotional problems and this rate decreased to 15% after
several months and it remained for a year in 6% of the studied cases.
10
11
Ciccarelli, Beckman, “Navigating Rough Waters: An Overview of Psychological Aspects of
Surrogacy”, pp. 21-43; Hazel Baslington, “The Social Organization of Surrogacy: Relinquishing a
Baby and the Role of Payment in the Psychological Detachment Process”, Journal of Health
Psychology, Vol: 7, No:1, 2002, pp.57–71; Tieu, “Altruistic surrogacy: the necessary
objectification of surrogate mothers”, pp.171-175.
Baslington, “The Social Organization of Surrogacy: Relinquishing a Baby and the Role of
Payment in the Psychological Detachment Process”, pp.57-71;Tieu, “Altruistic surrogacy: the
necessary objectification of surrogate mothers”, pp.171-175.
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Emotional and mental problems increased after delivery and giving the
child to the intended parents when the intended mother is familiar one. In
the above mentioned research, 9% of the women already had problems
and in 6% of them it was necessary to visit a psychologist.
Van den Akker‟s research on surrogate mothers implied that most of the
surrogate mothers considered the surrogacy as an enjoyable experience
and described the surrogacy as a kind of maturation, an addition of plus
value to their life or the feeling of satisfaction such as the mountain
climber feels after having surmounted the summit or as enhancing selfreliance. Relinquishing the child was considered also as pleasurable
experience by most of the surrogate mothers. For a few of them, a little
sadness which was resulting from the relinquishing the child
accompanied with happiness12.
Ragoné‟s research (in United States of America) was conducted at three
different surrogate mother programs from 1988 to 1996 and included
both formal interviews and informal conversations face to face with 28
surrogates. Firstly, Ragoné observed uniformity in surrogates' responses
to the questions about their initial motivations for becoming surrogates
and it seemed to her that as if all surrogates repeated same words from a
script which was given to their hands. This uniform answers by
surrogates include the desire of helping an infertile couple to have a
child, financial gain and a love of pregnancy. This study by Ragone also
indicated that for some women, the motivation to become a surrogate
mother was due to sense of guiltiness because of their previous abortion
(26% of surrogates) and/or giving up a child for adoption (9% of
surrogates). It means that sense of guiltiness may motivate some women
to become surrogate mother. Although surrogates claimed to have "easy
pregnancies", it was observed for some surrogates to miscarriage ectopic
pregnancies and other related difficulties resulting from a hard
pregnancy. When surrogates characterized their acting as a “gift of love”
for couples, they also expressed indirectly that their acting can not be
compensated for monetarily. When surrogates were asked whether they
think of the child as their own, without exception they said that they did
not. The surrogate devalues her own genetic/physical contribution while
enhancing intending mother and the importance of her role as nurturer.
Through the process in which pregnancy and birth were defined as being
12
Pashmi M.A., Mohammad,etc., “Evaluating the experiences of surrogate and intended mothers
in terms of surrogacy in Isfahan”, pp: 33-40.
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exclusively women's business, the father's role is reduced to secondary
status in the relational triangle. The surrogate played a primary role in
facilitating the intended mother's role as mother of the child such as
refusing to nurture the child to which she gives birth13.
As an Islamic country, surrogate motherhood has been accepted and
practised in Iran surprisingly. There are some medical centres in Tehran,
Isfahan and other cities in which surrogacy options has been offered to
infertile couples14. The research example from Iran consist in 15
13
14
122
Helena Ragoné, “Chasing the Blood Tie: Surrogate Mothers, Adoptive Mothers and Fathers”,
American Ethnologist, Vol. 23, No. 2 (May, 1996), pp. 352-365.
Islamic jurisprudence has four main sources. The Holy Qur’an is the first and primary source of
Islamic law. The second source of Islamic law is Sunna, which consist of what the prophet
Mohammad (and imams in the Shiite school) said, did or agreed to. The third source is ijma,
which is the consensus of Islamic scholars, and the fourth is reason in the Shiite schools and
analogy in the Sunni schools of jurisprudence that indicates the most important difference
between these two branches of Islam. According to the Shiite theology, moral goodness and
evils can be revealed by reason on its own. Therefore, newly arising jurisprudential and ethical
issues should be categorised and discussed in the light of both reason and holly scripture.
However, for majority of Sunni schools, every jurisprudential topic, including bioethical issues,
should be examined only on the basis of scripture and the prophetic tradition. Therefore, in
dealing with the new issues, it can be used analogical deduction to find the most compatible
response with the holy scripture.
Most Sunni scholars regard surrogacy as forbidden (haram.) and do not allow surrogate
motherhood, since it involves introducing the sperm of a man into the womb of a woman apart
from his wife. Other minority of Sunni scholars consider the ‘‘surrogate mother’’ to be
resembled to the ‘‘milk mother’’, that is permitted in Islamic law (fiqh).
Neverthless, most Shiite scholars allow surrogate motherhood as a treatment for infertility but
only for legal couples. Shiite scholars consider the embryo is quite different from sperm and so
do not regard introducing the embryo into the womb of the surrogate mother to be the same as
introducing the sperm of a man to a woman who is not his wife. Thus, they consider the
surrogate mother is very similar to the milk mother or wet nurse and there is no sin in this
practice. In fact, they regard this practice as transferring an embryo or foetus from one womb
to another, which is not forbidden in Shiite jurisprudence. K Aramesh, “Iran’s experience with
surrogate motherhood: an Islamic view and ethical concerns”, Journal of Medical Ethics,
Volume:35, Issue:5, 2009, pp.320–322.
But comparing surrogat motherhood to milk-motherhood can not be legally valid analogy.
Because there are no available current conditions to make analogy between two practises. The
most important component in analogy is unity of reason. The reason of milk-motherhood
practise is nutrition of the baby born and growing up in a healty way. On the other hand, the
reason of surrogate motherhood is to have a baby for a couple who used to surrogat’s womb.
So, it is argued that it is impossible to make analogy between surrogate motherhood and wetnursing because of lacking unity of reason.
One of the secondary sources in Islamic Law/Fıkıh is called “mesalih-i mürsele”. Mesalih-i
mürsele is reasons on which is built a decision and provide a benefit to human being or at least
remove a harm from them but there is no evidence whether valid or invalid. But according to
the some Sunni legal scolars, it seems impossible to examine and permit the surrogacy in this
context. Because if it is considered what surrogate motherhood causes legal, social,
psychological and ethical problems, there is no guarantee this practise presents more benefit
rather than harm. See. Ülfet Görgülü, “Taşıyıcı Annelik-Fıkhi Bir Bakış, Journal Of İslamic Law
Studies, Issue: 15, 2010, pp.197-207.
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surrogate mothers, 15 intended mothers, and 30 conventional mothers
(each with one or more children) and gathered all datas from autumn to
winter of 2009 in Isfahan.
The research revealed that social – cultural status of the surrogate and
intended mothers were completely different but their psychological
characteristics were not significantly varied. In all cases, all the surrogate
mothers were happy to help the infertile couple and their main purpose
was altruistic. 46.6% of surrogates who involved to the research declared
that their motive was firstly altruistic purposes and then financial
problems. This statements of surrogates might be assessed to be doubtful
as being merely an automatic response to the interviewer rather than a
reflection of the surrogates‟ true feelings. The other 40 % cases indicated
that their main motives were first the financial and then the altruistic
goals. They had a good relationship during the pregnancy period but after
delivery the intended mothers did not want any further relationship.
Except one of them, all intending mothers declared that they didn‟t want
to have any relationship with the surrogate mother and didn‟t let the
surrogate mother see the baby. In terms of the relinquishment of the child
to the intended parents, all the surrogate mothers had no problems except
one mother15.
By some authors such as Elly Teman, surrogacy is viewed as a product of
Jewish- Israeli cultural context. Unmarried women use motherhood to
enhance their status in Israel, because single women is stigmatized in a
family oriented society like Israel. While motherhood moves a single
woman from marginal status to a more "natural" or normative status,
denying of motherhood can also make a Jewish-Israeli woman "other."
Surrogates keep remaining their missions as a good citizen by helping
childless women to satisfy their own “natural/national” goal. Indeed, the
actions of Israeli surrogates have not altered any of the cultural forms
attached to gender roles and in conformity with the patriarchal interests
of the state.
Now, we would set an example that was made in Israel. This research
was based on both in-depth, open-format interviews and participantobservation with eight Israeli surrogates and eleven commissioning
15
Pashmi M.A., Seyed Tabatabaie Ph.D. etc., “Evaluating the experiences of surrogate and
intended mothers in terms of surrogacy in Isfahan”, pp: 33-40.
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mothers16. One of the results of the research demonstrated that surrogates
referred to their bodies as "artificial" during process and they described
themselves as powerful agents who took control over their bodies to the
artificial substance like hormones. Surrogates were able to separate their
own-selves from the foetus quickly and thought the foetus “an alien”
through the emphasizing the "natural" genetic connection between the
commissioning couple and the child17.
The research project on commercial surrogacy in India was conducted in
Anand* between 2006 and 2008. Research included in-depth, open16
17
124
*
The interviews took a narrative form, with the women responding to request to "tell your
surrogacy story from wherever it begins." Most interviews were conducted in women's homes
and took an average of two hours. Surrogates and commissioning mothers’ ages ranged
between 34 to 42. All of the women interviewed were Jewish. Three commissioning mothers
held bachelor's degrees, and eight had stable jobs. Only one surrogate had a bachelor's degree,
and she and the other surrogates all worked in temporary jobs.
Elly Teman, “The Medicalization of ‘Nature’ in the ‘Artificial Body’: Surrogate Motherhood in
Israel”, Medical Anthropology Quarterly, Volume: 17, 2003, pp.78-98.
Although Jewish religious law determines kinship through gestation rather than genetics,
surrogates ignore the importance of gestation in favor of a genetic kinship model. In trying to
resolve question of maternal identity, many religous authorities point to the Talmudic
statement in Yevamot 97b, which states that “twins born to a woman who converted during
pregnancy are considered brothers”. The twins are considered to have been converted in utero
and their relationship to each other and to their mother must have been created after
conception. In Jewish theology, conversion is viewed akin to rebirth and removes all prior filial
relationships. This source supports the notion that the gestational or birth mother should be
recognized as the mother according to Jewish law. Neverthless, Rabbi Ezra Bik offers a new
model to help resolve the issue. His opinion that casuistic method does not play any role in the
question of determining maternal identity if there are no analogous cases. Then he postulates
that if there are no appropriate legal sources to help answer the question, one should look to
the aggadic (narrative or folktales) literature to see how the Talmud understood motherhood.
Aggadic sources demonstrate a different understanding of the paternal and maternal roles in
conception. For example, the Talmud in Tractate Niddah (30a) states:
“Our Rabbis taught: There are three partners in man: The Holy One, blessed be he, the father
and the mother. The father supplies the semen, the white substance, out of which are formed
the child’s bones, the sinews, the nails, the brain and the white of the eye. The mother supplies
the red substance, out of which are formed the skin, flesh, hair, blood and the black of the eye.
God provides the spirit, the soul, the beauty of the features, eyesight, the power of hearing,
ability to speak and walk, understanding and intelligence. When the time comes for a man to
depart this world, God takes back his part, leaving behind the contributions of the mother and
father. (Talmud, Tractate Nidda, 30a)”. This understanding seems to equate the roles of man
and woman and would seem to imply a genetic basis for motherhood. In fact, this is one of the
primary sources that Rabbi Shlomo Goren who was former chief Rabbi of Israel, uses to prove
his argument that the genetic mother must be recognized as the mother according to Jewish
law. See. Alan Jotkowitz, “Surrogate Motherhood Revisited: Maternal Identity from a Jewish
Perspective”, Journal of Religion and Health, Published online 19 April 2011, Çevrimiçi,
http://www.springerlink.com/content/jh288758314567v8.
Anand is a city in Gujarat state of India. The clinics in Anand play an active role in the
recruitment of surrogate women by the doctors, nurses and middle-women. The clinic supply
of surrogates from surrounding villages and some of these women underwent surrogacy for the
second time in just two years. For international couples (US, Taiwan, South Korea, South Africa
Law & Justice Review, Volume: 1, Issue: 3, December 2011
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format interviews with 42 surrogates, their husbands, 16 intending
parents, two doctors and two brokers. Typically, the interviews took a
narrative form, with the woman responding to request to “tell me about
your life and how you got into surrogacy.” It was also conducted
participant observation for nine months at the surrogacy clinic and a
surrogacy hostel or at surrogates‟ homes. All the surrogates are married
and with children. Their ages are between 20 and 45 years old18.
18
Britain, Turkey and Spain) hiring the surrogates in Anand provides substantial cost savings.
The clinic also runs several hostels which make possible to be monitored the surrogates’ daily
activities by the doctor or intended couples. All the surrogates live together in a room and
husbands is allowed to visit but not stay overnight. Amrita Pande, “It May Be Her Eggs But It’s
My Blood”: Surrogates and Everyday Forms of Kinship in India, Qualitative Sociology, Volume:
32, Number: 4, 2009, pp. 379–397.
Name
Sudha
Raveenaa
Pushpal
A
g
e
Religion
Work
Husband’s
work
30
27
Hindu
Hindu
Hindu
Farmer
Truck driver
27
Bank teller
Works in a
store
Salma
25
Muslim
Vaneeta
36
Christian
Insurance
agent
Staff Nurse
Hindu
Housewife
Dipali
Vidya
Daksha
Anjali
Gauri
Jagruti
Rita
Tejal
Sapna
Savita
Varsha
Rita
Nisha
Yashoda
Tejal
Tina
Rina
25
30
20
25
28
35
23
27
27
45
38
29
36
38
30
26
26
Hindu
Christian
Christian
Hindu
Hindu
Housewife
Housewife
Housewife
Hindu
Housewife
Works in a
school
Housewife
Hindu
Housewife
Hindu
Hindu
Housewife
Bank teller
Painter
50
Tailor
150
Divorced
Daily laborer
Farmer
No fixed job
Salesman
Haircutter
Vendor
Painter
Factory
worker
Separated
Hindu
Christian
Nurse
Plastic
collector
Auto driver
Housewife
Auto driver
Christian
Hindu
Christian
Hindu
Housewife
Clinic maid
Teacher
Works
store
in
200
50
Driver
Cleans the
clinic
Waitress
Hindu
Income
Per
month
($)
65
Unemployed
Widow
Painter
Auto driver
30
40
20
20
30
35
40
30
120
40
15
60
100
20
40
60
100
Education
Children
Intended
Couple
from
Primary
school
College
High
School
1
Mumbai
Middle
school
High
School
Primary
school
High
School
Illiterate
Primary
school
Illiterate
Middle
school
Middle
school
Middle
school
Primary
school
Primary
school
Middle
school
Primary
school
Middle
school
lliterate
High
School
Middle
school
High
School
2
2
2
2
3
3
US
Bangalor
e & US
(NRI)
South
Africa
South
Africa
US
Madras
3
Hyderaba
d
UK
2
3
US
Delhi
2
Mumbai
2
Singapor
e
UP
(India)
(US)
2
2
US
2
US
2
2
1
US
3
Dubai
2
1
Spain
Dubai
2
US
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126
Indian gestational surrogates attempted to reconstruct traditional kinship
model on new bases. The surrogates in Anand, reinterpreted blood tie
differently and not only claimed that the foetus is nourished by mother‟s
blood but also emphasized that this blood tie gives identity to the child 19.
This reinterpreted kinship model also challenges the idea that “genes” are
the unique basis for making claims on the baby and replace the new idea
that sweat (labor) and the blood (substance) tie between surrogate and
foetus is another basis for making claims on the baby. According to
surrogate mothers, their substantial ties with the baby (blood, breast milk)
and the effort of gestation/giving birth make them more closed and
attached to the baby than the genetic mother. Whether real or imaginary,
the surrogates were able to maintain kinship ties with intendend mothers
from outside their class and even national boundaries*. Although new
kinship model between foetus and surrogate included intending mothers
as well but excluded brokers. However, surrogates such as Jyoti and
Hetal, by invoking the genetic parents “investment”, strengthed the view
that children are father‟s “property.” Finally, while the surrogates extend
their claims to motherhood in spite of without having genetical bonding
and devalueding father‟s contribution, on the other hand, acknowledge
patrilocality20.
Now, it is time to extract and comment all these datas and findings. As a
result, surrogate mothers have varying motives including financial gain,
Diksha
24
Hindu
Housewife
Shanta
33
Hindu
Muslim
Works in a
parlor
Housewife
Christian
Nurse
Vaishali
Naseem
Panna
Naina
19
*
20
24
30
27
36
Hindu
Hindu
Cook
Housewife
Factory
worker
Factory
worker
Auto driver
70
Vendor
60
Daily laborer
Factory
worker
70
100
40
60
High
School
High
School
Middle
school
Middle
school
Middle
school
High School
2
US
3
US
1
US
1
UP
(India)
Turkey
2
US
3
According to common understanding in India, semen is derived from blood. As being the
product of the father’s a child inherits the father’s blood and is therefore placed in his group.
The mother’s blood is significant in nourishing the foetus but not in giving identity to the child.
bioe
Surrogate Raveena believed in; “Our relationship (with intended mothers) was made in heaven
and we both would do anything to make sure it stays that way”.
Raveena is an exception at many levels. She is the only college-educated surrogate at the clinic.
Raveena became a surrogate to pay for her elder son’s heart surgery.
Pande, “It May Be Her Eggs But It’s My Blood”: Surrogates and Everyday Forms of Kinship in
India”, pp. 379-397.
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the pleasure of pregnancy and giving birth, sublime feelings and the
satisfaction of helping others.
It is often implied that surrogacy contracts are commited of bound
unequal two parties in terms of power, education, and financial status and
so, might exploit poor, low-educated or ethnic minority women.
Neverthless, majority of datas point opposite facts to these convictions
that most surrogate mothers are in their twenties or thirties, white,
Christian, married, and have children of their own. Surrogate mothers‟
family incomes are often tought low but according to the datas in hand
they take a place in avarage income group and they are from working
class. As it is stated before, most of them report that financial
considerations is not their main motivation for being surrogate. It might
be likely due to causious attitudes of surrogacy agencies in selecting
potential surrogates to overcome the counter arguments that the process
could be exploitive of poor, young, ethnic women.
In the context of surveys, another result indicates that if the babies are not
genetically related to the surrogate mothers, this might relief burden of
relinquishment. Long-term satisfactions depend on whether surrogate
mothers‟ expectations about the relationship with the couple and child are
met or not. Particularly emotional distress or regret increases if the
surrogate mother begins to feel abandoned by the intended couple. The
surrogates want to be more than just a „„womb for rent‟‟and do not want
to feel used merely as a mean because they have a healty womb that
works, but rather hope to be a part of the commissioning couples‟ lives. It
is seen disloyalty when the intended couple with the surrogate baby
disappears from the surrogate mother‟s lives.
Surrogate mothers‟ statements about their motivations reflect traditional
culturally accepted ideas about reproduction, motherhood, and family but
on the other side devaluating some characteristics of the surrogacy
relationships, such as financial payment, that depart from traditional
values and beliefs. It is also argued that reported motivations of surrogate
mothers point out how much they are under social pressure to provide a
socially acceptable justification for their action. Although they satisfy
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with their traditional motherhood, surrogate mothers represent a radical
departure from traditional views of motherhood and family21.
Motives such as regreting from giving up a child for adoption and/or
previous abortions, helping infertile couples or making money
demonstrate that the decision to become a surrogate is based on a
complex range of factors and psychological mood.
128
The surrogacy case provides conflicting evidence both supporting the
concept of maternal instinct and against to it. Eventhough many surrogate
mothers relinquish a child and accept payment, a small percentage of
them reported temporary attachment to the surrogate child but even a few
decide to keep the baby in spite of present socio-cultural norms which are
discouraging for this kind of attitudes. In this way, surrogacy breaks the
myth of the maternal instinct in terms of surrogate mothers who have
babies and give them away, and even contractual mothers who are
rewarded for having babies22. But it is also possible to comment the fact
that “denying maternal bahaviour” as different way. It might indicate that
surrogates view themselves as a „„human incubator‟‟ and the child as the
„„product‟‟ no relationship to them other than being the result of their
biological and physical labour. And it means that surrogates are alienated
to their bodies and motherhood23.
2.2. Some Surveys Indicating Public Opinions Related To The
Ethical and Legal Acceptibility of Surrogate Motherhood.
In England, the “Brazier Surrogacy Review” team received 369 written
responses from the public at a hearing in 1998. The question „Should
21
22
23
Katherine Drabiak, Carole Wegner, Valita Fredland, and Paul R. Helft, “Ethics, Law and
Commercial Surrogacy: A Call for Uniformity”, Journal of law, medicine & ethics, 100 years of
transplantation, Summer 2007, pp.300-309.
In “The Second Sex”, Simone de Beauvoir (1953) discusses women’s maternal behaviour and
asserts that: ‘. . . no maternal “instinct” exists’. Elisabeth Badinter analayzed child-rearing
practices over 300 years in Europe. She concluded that women changed their behaviour during
the 19th century as a result of a transformation in the discourse on motherhood. In her view,
maternal instinct is a myth that was created and became a powerful ideological pressure in the
19th century as a reaction to parental indifference which culminated in a high infant mortality
rate in the latter part of the 18th century. Usually in the past, the children were raised by less
affluent mothers for wealty mothers’ benefit. It could be argued that in the 20th century the
situation reversed. Factors such as rising infertility and decreases in the numbers of children
available for adoption created social circumstances whereby the less affluent bear children for
the benefit of the infertile but wealthy women. Baslıngton, “The Social Organization of
Surrogacy: Relinquishing a Baby and the Role of Payment in the Psychological Detachment
Process”, pp.57–71; Badinter, Elisabeth; Annelik Sevgisi: 17.Yüzyıldan Günümüze Bir
Duygunun Tarihi, Çeviren: Kamuran Çelik, İstanbul, Afa Yayınları, 1992.
Tieu, “Altruistic surrogacy: the necessary objectification of surrogate mothers”, pp.171-175.
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there be a legal ban on all payments to the surrogate mother made by or
on behalf of the commissioning parents?‟ were answered as “no” by
88.83% (310) of respondents while 82.20% (277) answered „yes‟ to the
question, „Should [payments] include remuneration for loss of actual
earnings?‟
In France, the Biomedicine Agency (Agence de la Biomédecine)
conducted a telephone survey about surrogacy from December 2006 to
January 2007. 55% of the total 1086 respondents expressed that
surrogacy was morally acceptable, and 53% stated that surrogacy should
be allowed in France. The survey also showed that 44% of respondents
thought surrogacy in France was already allowed under the law24.
Another study in France was conducted at the Regional Hospital Center
of Orl´eans between September to October 2009 and held 115 women.
The majority of women were Christians and from French origin but other
monotheist religions were represented. 80% of all participants had one
child or more. The women were between 19 and 44 years old. Total 16
questions which was concerned ethical aspects of surrogate pregnancy
such as acceptability and legal aspects were answered by 109 patients.
60% of women claimed that surrogate pregnancy is ethically acceptable
and 91% of women defended that surrogate pregnancy should be
legalized in France in case of infertility, refusal of adoption or for
homosexual couples. “Infertility is a reason of surrogate pregnancy”
represented 87% of women‟s opinion. 12% of women declared they
could agree to be pregnant for another couple. 47% of women argued that
surrogate mother could continue to have a relationship with her child and
34% with the intended couple. 9% of women rejected surrogate
pregnancy for some reasons such as religious prohibition, unclear
filiations and psychological traumatism. For most women there should be
a limitation of age both for the surrogate mother and intended couple. In
view of 70% women, the surrogate mothers should have financial
compensation by the health insurance or by the intendend couple25.
24
25
Yukarı Semba, Chiungfang Chang, Hyunsoo Hong, Ayako Kamisato, Minorı Kokado and Kaori
Muto, “Surrogacy: Donor Conception Regulation In Japan”, Bioethics, Volume:24, Issue:7, 2010,
pp 348–357.bioe
S. Alouini, L. Mesnard, P. Megier, A. Desroches. Department of Obstetrics and Gynaecology,
Centre Hospitalier R´egional d’Orl´eans, France, “Ethical and legal aspects of surrogate
pregnancy: opinion of French women on surrogate pregnancy”, 10th International Congress on
Preimplantation Genetic Diagnosis, May 5-8th, 2010.
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Unfortunately, there is a few survey in Turkey to reveal public opinion
related to surrogate motherhood. One of the pioneer studies in our
country was done in the asssisted reproductive treatment center of
“Gulhane Military Medical Academy” (GATA) to determine the
approval levels of gamete donation and gestational surrogacy. The most
important data of this study indicates that some patients approved gamete
donation (23.3% of participants declared to be positive towards oocyte
donation and 3.4% for sperm donation) and gestational surrogacy
(15.1%) . 54 out of 357 the participants stated that if they were not able to
become pregnant, they would look for a surrogate mother, and 14.9% (55
out of 357 participants) reported they did not have enough information
about gestational surrogacy. Among the participants, 5.3% (17 out of
323) stated that they would consider becoming a surrogate mother and
12% (39 out of 325) considered becoming a surrogate only for a
relative26.
130
Another pioneer study was executived in Turkey to determine GATA
Nursing School students‟ attitudes towards surrogate motherhood. In this
survey, it was asked to participants (n=281) their approaches to surrogate
motherhood which is illegal in Turkey and other possibilities to have a
child if they are informed would not be able to have children because of
infertility. Having favorable opinion both considered as being adoptive
parents and accepted someone as being surrogate mother is the most
populous group with %47,7 (n=131). 35 out of 281 participants have
declared to prefer surrogate motherhood as being an only and unique
solution of their possible infertility. In other words, %12,5 of participants
said that they would only prefer and accept surrogate motherhood.
However, a group of %11,0 marked the option to consent their infertility
and to do nothing (n=34). 169 participants declared that they would
accept to receive a surrogate mother. When asked them “who do you
prefer as surrogate mother”, the option “should be unfamiliar person” is
the first ranke with %53,3. When they were asked whether they agree to
be surrogate for someone else or not, %18 respondents were positive. If
we compared to the distribution of options in related to possible
preference to have children in the future in case of infertility, statisticallly
significant differences were found between classes. However, the
distributions of responses to the questions that as a surrogate mother
26
Baris Baykal, Cem Korkmaz, Seyit Temel Ceyhan, Ümit Göktolga, İskender Başer, “Opinions of
infertile Turkish women on gamete donation and gestational surrogacy”, Fertility and Sterility,
Vol. 89, No.4, April 2008, pp.817-822.
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“who do you accept being a surrogate” and “for whom would you accept
to be a surrogate mother” are also different between the classes27.
3. The Arguments Against Commercial Surrogacy
Objections to surrogate motherhood generally diverge two main groups.
One focuses harmful effects onto the surrogate mother, wheras in the
other is focused to the child.
3.1. On Wrongs Done to the Surrogate Mother
1. First objection to the surrogate motherhood is about „selling of body‟.
Surrogacy has been resembled to prostitution in the literature by some
authors. According to this argument; the woman sells her womb and
leaves control of her body.
Eventhough prostitution and commercial surrogacy are performed for
money, analogy is not true and it is hard to compare both services. In
fact, prostitution and surrogacy have different objectives. The purposes of
prostitution is the selling of women‟s bodies for sexual satisfaction; but
the aim of surrogacy is to bring a child into the world.
2. The most well-known argument against surrogacy is not to be truly
voluntary. Because the surrogate women don‟t aware off what deal with
and would not sign such a contract unless they were desperately poor.
However, according to counter-liberal argument; these women are free
agents so the best judges and keeper of their self interests. Most
surrogates can earn money by selling their reproductive capacities at
market like any legitimate occupation rather than getting poorer.
But the individualist presumption that all choices are comparably free is
shallow and misleading. It presumes that individual actions can be easily
detached from conditions of social enviroment. That is to say, the
statement “surrogacy is a better option for her rather than
unemployment” is not capable of showing that her decision is made
freely. Surrogacy might be a new but at the same time coercive option for
many women. It does not expand women‟s options numerically but
coerce certainly them into making an involuntary choice. But despite
being an undesirable choice, the price of refusal is too high. There are
27
Selim Kılıç, Muharrem Uçar, Türker Türker, Necmettin Koçak, Gülşah Aydın, Asiye Günay,
Damla Gençtürk, “GATA Hemşirelik Yüksek Okulu Öğrencilerinde Taşıyıcı Anneliğe Yönelik
Tutumun Belirlenmesi”, Gülhane Tıp Dergisi, Sayı: 51, 2009, s. 216-219.
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women who may feel that there is no other way for them to make
money28.
132
3. Some argue that monetary surrogacy reduces women‟s bodies into
commodities and means of production. In general, within the surrogacy
arrangement, the „surrogate‟ is treated as a machine whose services can
be exchanged for money. Treatings others as a means to our own ends is
exploitative because such treatment reduces others a goods which can be
exchanged in the market. Commissioning couple should not be legally
allowed to purchase the surrogate‟s reproductive labor because such
transactions objectify or exploit the surrogate. Gestational labour is an
alienated labour, and the law should protect potential surrogates from
alienation29. Surrogacy, -altruistic or not- inclines a woman to regard
herself as a “reproductive vessel”. Surrogacy alienate women from their
own reproductive capacity and products30 that should be inherently
inalienable. Some rights in personam are so essential to dignity and
autonomy that they must be kept inalienable. Even in this context,
surrogacy contracts treat the mother‟s inalienable right to love her child
as if it were alienable in a market transaction31.
Surrogacy contracts is also against dignity of women through
medicalization of their bodies that is hostile to female subjectivity. The
medicalization of the surrogate's body is written into the surrogacy
contract in the form of her agreement to refrain from the use of alcohol,
28
29
30
31
Anne Donchin, “Reproductive Tourism And The Quest For Global Gender Justice”, Bioethics,
Volume: 24, Issue: 7, 2010, pp. 323–332; Jennıfer Damelio and Kelly Sorensen, “Enhancing
Autonomy In Paid Surrogacy”, Bioethics, Volume: 22, Issue: 5, 2008, pp. 269–277.
Damelio and Sorensen, “Enhancing Autonomy In Paid Surrogacy”, pp. 269–277; Jason K.M.
Hanna, “Revisiting Child-Based Objections To Commercial Surrogacy”, Bioethics, Volume: 24,
Issue: 7, 2010, pp 341–347; Lori B. Andrews, “Beyond Doctrinal Boundaries: A Legal
Framework for Surrogate Motherhood”, Virginia Law Review, Vol. 81, No. 8, Symposium: New
Directions in Family Law (Nov.,1995), pp. 2343-2375; Donovan, “New Reproductive
Technologies: Some Legal Dilemmas”, pp. 57-60.
From Marxist- feminist perspective, conception of motherhood has been changed because of
introducing new reproductive technologies. Motherhood was understood as a status that was
something women were by old definitions. But new definition sees motherhood as an activity,
a service, a work. Babies are produced by the labor of mother. Being laborers, mothers produce
the precious products, but like most unskilled, disrespected workers, they are not trustworthy
and need to be monitored, controlled and keep them in line. We are looking at the
commodification of foetuses and of babies, and the proletarianization of motherhood. A baby is
ordered from a worker, but the worker are refused to turn over the product. Barbara Katz
Rothman, “Comment On Harrison: The Commodification Of Motherhood”, Gender & Society,
Vol: 1, No:3, September 1987, pp. 312-316.
Baker, “A Case for Permitting Altruistic Surrogacy”, pp. 34-48; Elizabeth S Anderson, “Why
Commercial Surrogate Motherhood Unethically Commodifies Women and Children: Reply to
McLachlan and Swales”, Health Care Analysis, Volume: 8, Number:1, 2000, pp. 19-26.
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cigarettes and all drugs, sexual contact during the pregnancy, stopping
her regular work, undergo periodic blood tests, and taking all medicines,
daily injections and vitamins vital for growing foetus. She must also
agree to any prenatal diagnostic procedures, such as amniocentesis, and
to abort the foetus or undergo selective reduction, cesarean section etc.
according to doctor‟s recommendations. The surrogacy emerges as an
extreme example of medical intervention in women's bodies and lives32.
4. Surrogacy contract is exploitive for women who are economically and
socially less advantaged. New assisted reproduction techniques has
grown into a transnational industry. The poor women of third world
countries has been used as means to compensate for the reproductive
deficiencies of western infertile women. Nowadays, many Western
women are relying on this industry to satisfy their postponed
reproductive plans because of their careers. Legal prohibitions and
regulatory restrictions in their home country, purchasing faster or
cheaper services, and receiving surrogates more easier or possibility of
gender selection in third world countries support reproductive tourism. In
spite of the insufficient legal regulations to protect them, for many young,
unskilled Asian and Eastern European women, surrogacy promise more
financial benefit than they could earn from any legal work in their
countries. For example, while an annual income of per head is around
$500 in India, an Indian surrogate mother can receive US$3000–6000.
Thus, surrogacy has become financially an attractive option to poor
Indian women and it is the second biggest industry of the country.
Though surrogacy and ovum donation take place in both developed and
underdeveloped areas of the world, the situation of women in less
developed countries is worsened by globalization. Economic
globalization aggravates existing vulnerabilities of women, intensifies
their poverty and the women are drawn into low-paying jobs which are
suitable women‟s domestic role. These industries depend on
impoverished local women to supply ova and surrogacy services. Not
only western and/or rich but also all humanbeings need protection from
32
Medicalization has been informed primarily by Foucauldian thought. See. Teman, “The
Medicalization of ‘Nature’ in the ‘Artificial Body’: Surrogate Motherhood in Israel”, pp:78-98.
Law & Justice Review, Volume: 1, Issue: 3, December 2011
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all forms of discrimination and exploitation, including circumstances
where this affects their reproductive capacities33.
5. Yet another objection to surrogacy involves health risks which may
arise from pregnancy and giving birth. While pregnancy is a natural
process, it is not risk free, there is potential 1 in 4800 risk of maternal
death due to pregnancy that could cause or aggravate many disorders for
each bodily system (the cardiac system, the respiratory system, the
urinary system, the endocrine system, the nervous system, the
reproductive system, and so forth). Whereas a pregnant woman is
supposed to be ready taking that risks, in surrogacy, she bears the risk
for the benefit of anothers. Therefore, there is a sense of futility if
something goes wrong for her and surrogate undertakes risks primarily
for the benefit of the commissioning couple. For example the Daily Mail
reported that a surrogate mother, aged 29, had died shortly after giving
birth34.
134
To disprove health risks argument, it is argued that coal workers who
know that mining causes serious health risks and potentially shortening
their lives when they accept to work. But still they are allowed to make
that decision by legal order35.
3.2. On Wrongs Done to the Child.
1. First of all, even we may have a suspicion about whether surrogate‟s
consent sincerely voluntary or not, the child cannot speak about consent
at all. It means, surrogate babies have not any autonomy because of their
incapabilities behaving autonomous. They are object of the surrogacy
agreements instead of being parties36.
2. According to the most popular opposite argument related to the topic,
commercial surrogacy is equal with childselling and violates children‟s
rights. The baby-selling argument contends that surrogacy contracts turn
children into objects of sale and treat them as products that can be bought
and sold. It also makes them means to serve the ends of others: not only
33
34
35
36
Palattiyil, Blyth, Sidhva, Balakrishnan, “Globalization and cross-border reproductive services:
Ethical implications of surrogacy in India for social work”, pp.686–700;
Donchin,
“Reproductive Tourism And The Quest For Global Gender Justice”, pp. 323–332.
Andrews, “Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood”, pp.
2343-2375; Tieu, “Altruistic surrogacy: the necessary objectification of surrogate mothers”, pp.
171-175.
Damelio and Sorensen, “Enhancing Autonomy In Paid Surrogacy”, pp. 269-277.
Hanna, “Revisiting Child-Based Objections To Commercial Surrogacy”, pp. 341-347.
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degrades their lives and and disrespects their inherent moral worth as
human beings but also devalues human life itself including surrogate‟s,
the contracting couple‟s and everyone else‟s, too37.
So from the new perspective, the child is a product and commodity. In
accordance with the new perseptive, between competing claims, the
courts will decide “who has rights of ownership over the product: the
employee (surrogate mother) or the employer (intended couple)?”38.
In fact that commercial surrogete motherhood contract is not equal to
baby-selling but it might be equavalent transfering of parental rights over
children. Actually, we must correct some points about this subject matter.
A legal point of view, payment to surrogate mother is not for
compensating to transfer her parental and custodial rights over the child
to the couples, but merely to relinquish her right to claim legal
parenthood of the child. Because her right is not transferable but
relinquisable39.
But eventhough surrogacy agreement is viewed not baby-selling, it is still
morally rejected by some authors. The transfer of the child from the
gestational mother to the intended parents is an essential feature of
surrogacy, and where the child is given to another out of generosity or
love, this is “objectification of the child”. Moreover, emotion of love is
the most important reason that gives mother custody claim over her
children. Pregnancy contracts treat the mother‟s inalienable right to love
her child, as if it is alienable in a market transaction40.
Another moral rejection against surrogacy can be grounded on Kantian
duty ethics. Kant argues that “autonomy consists in the fulfilment of
duties, not just the carrying out of our personal preferences”. Parents can
not bargain their obligations to their children. Necessary means to carry
out their obligations give them parental rights related to corelation
between rights and duties. The rights and duties of parenthood can not be
37
38
39
40
Damelio and Sorensen, “Enhancing Autonomy In Paid Surrogacy”, pp. 269–277; Baker, “A Case
for Permitting Altruistic Surrogacy”, pp. 34-48.
Rothman, “Comment On Harrison: The Commodification Of Motherhood”, pp. 312-316.
Anderson, “Why Commercial Surrogate Motherhood Unethically Commodifies Women and
Children: Reply to McLachlan and Swales”, pp. 19-26.
Anderson, “Why Commercial Surrogate Motherhood Unethically Commodifies Women and
Children: Reply to McLachlan and Swales”, pp. 19-26; Hugh V. Mclachlan And J.K. Swales,
“Babies, Child Bearers And Commodification: Anderson, Brazier Et Al., and The Political
Economy Of Commercial Surrogate Motherhood”, Health Care Analysis, Volume: 8, Number:1,
2000, pp. 1-18.
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voluntarily relinquished. Parental rights are not like freely alienable
property rights, to be allocated at the will of the parents41.
The primary concern in surrogacy is the welfare of the child. The
contracting couple do not pay money to exploit the child or to make a
profit from a sale but they just want to be parents. Second, in most cases,
the contracting father is genetically father of surrogate child, so it seems
outrageous to say he is buying his own child. The natural father pays not
for the child but rather for the surrogate's services of carrying and bearing
the child. And finally, potential for abuse might justify regulation of
surrogate mother procedures but not its prohibition42.
3. Another child-based counter argument is about “harmful effects” to the
related child. According to the “harm”argument, surrogacy should be
banned because of the potential physical, psychological and symbolic
risks to the children. There is also concern that the child might be
psychologically damaged by knowing how he or she was came into
existence43.
136
With regard to the child's emotional and psychological development,
depression which is caused being relinquished by its birth /gestational
mother would be counterbalanced with acceptance by the natural father44.
By the way, eventhough few researchs has been done about child‟s
psycological development who was born by surrogacy, the results does
not indicate harmful effect of surrogacy upon child45.
41
42
43
44
45
Kant, Immanuel; Ahlak Metafiziğini Temellendirme, Çev: Nejat Bozkurt, 2.Baskı, İstanbul, Say
Yayınları, 2008, pp. 202-230; Campbell, “Surrogacy, Rights And Duties: A Partial Commentary”,
pp. 35–40.
Katz, “Surrogate Motherhood and the Baby-Selling Laws”, pp.1-55: Damelio and Sorensen,
“Enhancing Autonomy In Paid Surrogacy”, pp. 269-277.
Andrews, “Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood”, pp.
2343-2375.
Katz, “Surrogate Motherhood and the Baby-Selling Laws”, pp.1-55.
Findings were presented of the second phase of a longitudinal study of families that are
founded through surrogacy. Methods: At the time of the child’s 2nd birthday, 37 surrogacy
families were compared with 48 egg donation families and 68 natural conception families in
terms of the psychological well-being of the parents, parent–child relationships and the
psychological functioning of the child. Results: The women who were made mother by
surrogate mothers showed more positive parent–child relationships, and the surrogacy fathers
reported lower levels of parenting stress, than their natural conception families. The surrogacy
children did not differ from the natural conception children with respect to socio-emotional or
cognitive development.
Conclusions: Surrogacy does not appear to impact negatively on parenting or child
development in families with 2-year-old children. See. Golombok, MacCallum, Murray, Lycett,
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4. Advocated Argument in Favor of Surrogate Motherhood and
Contracts
1. Related to widely accepted principle of liberal neutrality, the state must
remain neutral towards competing moral good and individuals should be
free to form and pursue their own conceptions of the good life. Therefore,
as long as the pregnancy contract is voluntarily accepted by the surrogate,
enforcing contract, does not violate of her autonomy or dignity. On the
contrary, preventing her from dealing with such a contract would be a
violation of her autonomy and personhood46.
2. Non-paternalistic government and law can only legitimately interfere
in the private lives of individuals and their preference where the parties
are not acting rationally or when there is a risk of harm to an innocent
third party. It follows from this view that, unless there is a given evidence
indicating harmful effects to children who are born as a result of
surrogacy contracts, the freedom of individuals to make their own
reproductive decisions should be respected. Except for these special
reasons, government does not need to interfere in procreative and
contractual liberty47. Specifically, in accordance with economic analysis
of contract law, a contract should be enforced if at least one person is
made better off by the transaction and no one is made worse off. This is
well known principle of contract law which is called Pareto superior. In
fact that the baby is made better off by the contract and certainly not
worse off. For without the contract, the baby probably would not be exit
at all48. As John Harris said; unless a life is not be worth living, to be
born is always favourable child‟s interests. So there is no any plus
considerations are adduced in the case of surrogacy or assisted
reproduction. Best interest of the child is to exist while the worst
alternative for them is not to be. It is unfair to presume that such children
will suffer psychological harm as a result of the manner of their birth
46
47
48
and Jadva, “Surrogacy families: parental functioning, parent–child relationships and children’s
psychological development at age 2”, pp. 213-222.
Richard A. Posner, “The Ethics and Economics of Enforcing Contracts of Surrogate
Motherhood”, Journal of Contemporary Health Law and Policy, Volume:5, No:21,1989, pp.2131.
Liezl van Zyl, “Intentional Parenthood and the Nuclear Family”, Journal of Medical Humanities,
Vol. 23, No. 2, Summer 2002, pp.107-118; Hatzis, “From soft to hard paternalism and back: the
regulation of surrogate motherhood in Greece”, pp. 205–220.
Posner, “The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood”, pp.21-31.
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rather than they will understand that without assistance third parties
he/she would not exit49.
3. In some scholars‟s point of view, surrogacy can be promising to solve
many problems of infertile couples. The inability to have a baby often
distress the infertile couple and may threaten even ruin their marriage.
Especially in a patriarchal society, inability of couple to have a child may
cause the husband who lives in more traditional and conservative parts of
the society to get a second informal married. This second marriage may
be a great disaster for his first wife. Infertility also may be used as a
stigma in such societies and is an intolerable situation not only for them
but also sometimes for western couples living in western societies. If
surrogacy was unavailable for infertile women, one of the possibilities
might be left by her husband for a fertile woman. Surrogate motherhood
can offer a solution for a couple whose marriage may be endangered due
to the wife's infertility and by so, may serve the promotion of the
family50.
138
4. Fourth argument is related to discrimination. Banning surrogacy is
against non-discrimination principle. If their reproductive organs function
properly, there is no restriction to procreate for unloving, irresponsible
and unconcerned people, even killers, child abusers by law. Being parent
do not depend on whether they deserve to be a mother and father time to
conceive. Society and law are not authorized to decide who can be a good
parent and who can not. Under normal conditions it is not necessary to
demonstrate parental skill. They are not required to prove that they have
enough money, time and desire for becoming parent. Rather, banning
third parties‟ assist to have a baby means discrimination to these people
who are not able to have a baby by natural ways. And this also means to
reinforce discrimination which made in nature upon infertile couples by
law51.
49
50
51
John Harris, Hayatın Değeri: Tıp Etiğine Giriş, İstanbul, Ayrıntı Yayınları, 1998, s. 202-206;
Alastaır V. Campbell, “Surrogacy, Rights And Duties: A Partial Commentary”, Health Care
Analysis, Nr: 8, 2000, pp.35-40; Byron Chell, “But Murderers Can Have All The Chıldren They
Want: Surrogacy And Public Policy”, Theoretical Medicine, Nr: 9, (1988), pp. 3-21.
Aramesh, “Iran’s experience with surrogate motherhood: an Islamic view and ethical concerns”,
pp. 320-322; Posner, “The Ethics and Economics of Enforcing Contracts of Surrogate
Motherhood”, pp.21-31.
Chell, “But Murderers Can Have All The Children They Want: Surrogacy And Public Policy”, pp.
3-21.
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5. Re-defining Motherhood
The introduction of new reproductive technologies (mainly in vitro
fertilisation) has resulted with not only in separation of sexual intercourse
and procreation, but also necessity re-defining who is mother. In the
traditional family; the genetic, gestational and social mothers are one and
the same. But genetic and gestational motherhood has become separable
recently through new reproductive technologies such as surrogate
motherhood. So, medical and legal institutions have to speak about
emerging new kinds of parental disputes. Although there is no consensus
what makes someone a parent, parenthood has three different sources.
First claim is motherhood arises from direct genetic relationship to infant.
From a modern scientific perspective that the foetus is composed of
combining the sperm of the man and the ovum of the woman. Therefore,
the woman from who the ovum was taken should be recognized as being
mother and the man from whose sperm was taken should be recognized
as being father. Womb of the mother is just a place and environment
which is necessary for growing of foetus. In fact, early stage of
embryonic development can be happened in the laboratory today and in
the future, it may be expected to make use of artificial womb to be grown
foetus under laboratory conditions52.
According to the gestationalists claim, motherhood arises from gestation
and childbirth. One of the unique features of pregnancy is establishment
of biological bond between the foetus and the gestational mother. First,
the foetus is physically contained within its gestational mother,
materially derived from the mother‟s body and finally, physiologically
integrated with the gestational mother. In sum, the foetus is directly
dependent on its gestational mother to be alive.
One of the most concrete examples of maternal-baby bonding is the
hormone oxytocin. Hormone oxytocin plays a crucial role for the
gestational mother to respond in accordance with her natural maternal
instincts. The developmental psychology literature indicates that a baby
begins to form cognitive interests through interactions with the
gestational mother53. According to the incorporation argument, 52
53
Jotkowitz, “Surrogate Motherhood Revisited: Maternal Identity from a Jewish Perspective”, 19
April 2011, Çevrimiçi, http://www.springerlink.com/content/jh288758314567v8.
Tieu, “Altruistic surrogacy: the necessary objectification of surrogate mothers”, pp.171-175;
Tim Bayne and Avery Kolers, “Toward A Pluralist Account Of Parenthood”, Bioethics, Volume:
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regardless of the source of the egg and the sperm- the gestational mother
is the mother of child because it is part of the her body. Another
supportive argument for in favor of gestation can be grounded on the
labour that the gestational mother performs. A gestational mother
undergoes trouble, discomfort, pain and risk during of pregnancy and
birth. While genetic mothers help to cause the child, their invested labour
in the child is minimal.
It is certainly true that many gestational mothers bond with their foetus or
new-born, but on the other hand many mothers are indifferent to their
new-borns at least in the begining. In addition to this, many individuals
such as relatives, family friends, and hospital staff can bond with an
infant in different ways but this is not a reason to make them parents of
the infant54.
140
Although still less prominent in the philosophical literature, the view that
parenthood should be established on the basis of intention instead of a
biological relationship is becoming increasingly popular among legal
theorists. From intentional parenthood perspective, the difference
between genetic and gestational surrogacy is not important, since in both
kinds of cases the pregnancy was initiated by the intended parents and
this is a necessary condition to be recognized as a parent. In its broadest
extent, the intentions to rear and nurture is relevant to the account of how
parental rights and responsibilities are acquired55. First, intended parents
are the real parents becuase they are the „first cause, or the prime movers,
of the procreative relationship.‟ Without intended parents, there would be
no child at all.
Neverthless, intentionalism also suffers from some problems. First of all,
many people become pregnant unintentionally and unwillingly but this
does not make them less parent than if they would have planned the
pregnancy. Thus, having intention to become mother/father is not
necessary for parenthood.
In monistic account, parenthood has a single ground. For example,
gestating is both necessary and sufficient for parenthood. All other views
54
55
17, Number: 3, 2003, pp.221-242; Rona Serozan, Çocuk Hukuku, Genişletilmiş İkinci Bası,
İstanbul, Vedat Kitapçılık, 2005, pp. 58.
Bayne and Kolers, “Toward A Pluralist Account Of Parenthood”, pp.221-242.
Liezl van Zyl and Anton van Niekerk, “Interpretations, perspectives and intentions in surrogate
motherhood”, Journal of Medical Ethics, Volume:26, Issue:5, 2000, pp.404–409; Bayne and
Kolers, “Toward A Pluralist Account Of Parenthood”, pp.221-242.
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are pluralist. According to the pluralistic point of view, genetic or
gestational, or intentional relations are necessary or sufficient for
parenthood56. Pluralistic account of parenthood implies that genetic,
gestational, intentional or social parents are not necessarily in
competition and a child can have more than two mothers. In this point of
view, more than one mothers might sometimes be a solution rather than a
problem. Simple definitions may serve legal purposes but frequently fail
to reflect the rich and complex relationships that individuals build
between each other57.
6. Some Ethical/ Legal Dilemmas in Surrogacy
Intended parents can purchase a series of promises by contract. The
surrogate mother will not smoke, will not drink alcohol, not have a sex
with her partner, not abort the foetus, will see a doctor, and follow certain
medical procedures. And she will certainly not keep the baby.
It is argued that coercing surrogate by legal order to abort or not to abort
in accordance with to the couple‟s will would violate her privacy right.
Abortion is an inalienable right and must be kept like this. Inalienability
forces surrogate mothers to retain a right that they would prefer to
transfer. Personhood analysis can explain why many inalienable rights
should remain inalienable. For example, according to Anthony Kronman,
it must be legally permitted people to breach personal service contracts
and pay damages out of respect for concept violation of personhood.
Kronman argues that when she changes her mind about a contract, she
will probably view her earlier decision to enter the contract as a strange
and irrational act. She will view her earlier self as almost a different
individual - one who betrayed her by committing her to act against her
best interests. This sense of former self-betrayal and irrationality can
leave her in doubt of her current rationality and of the effects of her
present decisions on a future self.
Kronman's depersonalization argument provides personhood to be
grounded an inalienable abortion right in the surrogate motherhood
context. Forcing surrogate to remain with a pregnancy threatens her
integrity and self-respect because it imposes physical reminder of a past
mistake constantly. Because the abortion right, in this context, protects
56
57
Bayne and Kolers, “Toward A Pluralist Account Of Parenthood”, pp.221-242.
Giuliana Fausta Fuscaldo, “Genetic Ties: Are They Morally Binding?” , Bioethics, Volume:20,
Issue: 2, 2006, pp. 64-76.
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woman's authonomy which involves control over her body and her
procreative decisions against third parties‟ interference58.
One of the most suffering problem of surrogacy arrangment is “the fate
of the imperfect babies” problem. At the present time, many genetic
defects can be diagnosed by pre-natal testing. For example, while
disability or disease of the baby are diagnosed during pregnancy but the
surrogate may still wish to continue her pregnancy in spite of the
intended couple‟s counter-will. Alternatively, the surrogate may choose
an abortion contrary to the wish of the couple. But all of the birth
defects can not be determined prenatally and some defects may result
from the trauma of the birth procedure itself and eventually may lead to
be rejected the baby by the intended couple even after birth59.
142
What happens if surrogate mother changes her mind and gives up to
relinquish her child to the intended couples? Of course custody battles
would start between parties and Baby M case is the most well-known
example of this problem. In this dramatic legal battle between the
surrogate and couple who sought to have a child with her assistance, the
New Jersey Supreme Court decided that monetary (commercial)
surrogate contract is “illegal, and potentially degrading to women.”. The
court clarified that a full surrogate is the “natural” and legal mother of the
child and intended mother has no parental rights or duties60.
58
59
60
Rumpelstiltskin Revisited: The Inalienable Rights of Surrogate Mothers: Harvard Law Review,
Vol. 99, No. 8 (Jun., 1986), pp. 1936-1955.
Ber, “Ethical Issues In Gestational Surrogacy”, pp. 153-169; Tieu, “Altruistic surrogacy: the
necessary objectification of surrogate mothers”, pp.171-175.
In 1985, Mary Beth Whitehead signed a surrogacy contract to become pregnant through
artificial insemination by sperm of the potential father and to relinquish the child to William
Stern and his wife. After the birth, Whitehead decided to keep the baby and broke the contract.
This custody battle brought into the court by Mr. Stern and he claimed to enforce contract. In
1987, the New Jersey Superior Court upheld the validity of the surrogacy contract, terminated
Whitehead's parental rights in favor of the Sterns. The judge ruled that a couple could
guarantee to make a legally valid contract which its object may involve their constitutional
right to procreate. In February 1988, the New Jersey Supreme Court overturned the Whitehead
decision of lower court and restored parental rights to Whitehead. In the decision, the New
Jersey Supreme Court recognized that surrogate women can not have free will due to social and
economic pressure on women. However, the court did not abrogate the lower court's award of
custody to Stem but gave Whitehead visiting rights because of his much more adequateness
financially as compared with Whitehead.
Sharyn Roach Anleu, “Surrogacy: For Love but Not for Money?”, Gender and Society, Vol. 6, No.
1, 1992, pp. 30-48; Ben-Asher, “The Curing Law: On The Evolution Of Baby-Making Markets”,
pp.1885-1924; Görgülü, “Taşıyıcı Annelik-Fıkhi Bir Bakış, pp.197-207.
During the nine months of her pregnancy, physical and emotional bonds between surrogate
mother and child perhaps influence her decision to keep the child. Many people view that
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Baby Manji Yamada is another famous case about the uncertain legal
status of children resulting from a surrogacy arrangement. Baby Manji
was born on 25 July 2008 in the town of Anand by an Indian surrogate.
However, before Manji was born, her Japanese parents separated and
divorced and neither her intended mother, birth mother nor the egg donor
wanted her. Morover, her genetic father was not allowed to return the
baby to Japan with her because under Indian law he was not recognized
as the child‟s father by Indian legal order and – as a single man – was
barred from adopting Baby Manji. Eventually, Manji‟s paternal
grandmother was permitted to take her to Japan61.
In the case of Jaycee B, intended couple divorced before the surrogate
mother giving birth to baby Jaycee and contracting father denied all legal
obligations to child due to he was not genetically related with the baby.
An unsolved another question at this point is dying of the surrogate
mother. If surrogate dies as a result of the pregnancy who is responsible
for her?62
Usually, alturistic surrogacy is supposed more preferable than
commercial surrogacy and thought permisible. Alturistic surrogacy is
resembled kidney donation between close family members. Donating her
kidney to loving sister/or daughter is similar donating temporarily her
uterus and becoming pregnant to help her sister. But female relative may
be manipulated and forced emotionally to become surrogate or sister/
mother may feel guilt at her own fertility in” the face of her female
relative's inability to become pregnant63.
7. An Attempting to Comparative Legal Study: Some Legal
Appearances of Surrogate Motherhood Around the World
7.1. Surrogacy in Greece:
Surrogate motherhood in Greece is codified mainly with in the scope of
article 1458 in Greek Civil Code.
61
62
63
emotional bonds with children as central parts of their existence. But according to the different
point of view, when someone consider, surrogate must have a right to rare her child and this
right also should be kept inalianable, they must still consider whether the father has any similar
interest. Although alienability risks the personal identity of the mother, inalienability might risk
the personal identity of the father, because he must risk losing access to his children.
Palattiyil, Blyth, Sidhva, Balakrishnan, “Globalization and cross-border reproductive services:
Ethical implications of surrogacy in India for social work”, pp.686–700.
Ber, “Ethical Issues In Gestatıonal Surrogacy”, pp. 153-169.
Anleu, “Surrogacy: For Love but Not for Money?”, pp. 30-48.
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Article 1458: The transfer of fertilized ova to another woman (the ova
should not be hers) and pregnancy by her is allowed by a court
authorization issued before the transfer, given that there is a written and,
without any financial benefit, agreement between the involved parties,
meaning the persons wishing to have a child and the surrogate mother
and in case that the latter is married of her spouse, as well. The court
authorization is issued following an application of the woman who wants
to have a child, provided that evidence is adduced not only in regard with
the fact that she is medically unable to conceive but also with the fact
that the surrogate mother is in good health and is able to conceive.
Provided that following conditions are met, the law of number 3089/2002
which modified pre-existing regulations about filitation allows
gestational surrogacy by a court authorization before the embryo is
created and transfer:
144
There is a written agreement between the involved parties and if the
surrogate mother is married, the written consent of her husband is also
required. But the surrogate contract can not contain any monetary renew,
in other words financial benefit is forbidden.
The female partner of intended couple should provide a medical
document about her inability to gestate the child. She also should provide
evidence that surrogate woman is in good health condition and able to
conceive.
Both the intended and surrogate mother should have their domicile in
Greece (article 8 of Law 3089 /2002).
The woman who has obtained the court permission is presumed as a
mother. But it may be reversed by the legal action either by the presumed
mother or by the surrogate, provided that giving evidence of that the child
is created by ova from the surrogate mother (article 1464 of Civil
Code)64.
7.2. In United Kingdom
Surrogate motherhood is regulated by Surrogacy Arrangements Act 1985,
Human Fertilisation and Embryology Act 1990 and 2008 in the UK.
64
Ismini Kriari – Catranis, “Human Assisted Procreation and Human Rights: The Greek response
to the felt necessities of the time“, European Journal of Health Law, Nr: 10, 2003, pp.271-279;
Hatzis, “From soft to hard paternalism and back: the regulation of surrogate motherhood in
Greece”, pp.205–220.
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Actually surrogacy contracts are not legally enforceable in United
Kingdom. If the surrogate refuses to transfer the baby, neither intended
couple sue for surrogate to force transfering the baby nor surrogate sue
for payment which is not paid to her. At the present time, the surrogate
mother is always recognized the child‟s legal mother without considering
whether she is genetically related to the baby or not. If the surrogate
mother is married, her husband will be the legal father of the child. But
all these are rebutable presumptions. Unless a parental order is made, the
surrogate mother remains the legal mother of the child.
Human Fertilisation and Embryology Act 1990 order to the Registrar
General to re-register the child‟s birth in favour of the commissioning
parents if there is concensual parental order between parties. Human
Fertilisation and Embryology Act 2008/section 54 makes available
having surrogate children for same-sex and unmarried couples in a
durable family relationship and allows them to be legal parent. It is
necessary to be met some conditions for a parental order as follows:
First of all, informed dual consent is mandatory. If the surrogate mother
refuses to consent, they fail to apply within the six-months time limit.
The child must be genetically related at least to one of the intended
couples (applicants) and currently living with the applicants. Finally,
there is a restriction in Section 8 on the making of payments to
surrogates. However, the courts are reluctant to refuse a parental order in
spite of the adverse statements in Section 865.
7.3. In France
Since 1994, article 16-7 of the French Civil Code has stipulated that “any
convention related to procreation or gestation for another is null, void and
unlawful”. The surrogate mother alone is recognised as the biological
mother. This is what happened to the case of Mennessons parents who
have been trying for almost ten years to have the filiation of their children
to be recognised by court.
7.4. In Germany
Most prominently ß 7 I Nr. 7 of the German Embryonenschutzgesetz
(law for the protection of embryos, which came into force in 1990 and
also prohibits egg-donation in ß 1 I Nr. 1 and is in general very restrictive
65
Phillip Anderson, “An Evaluation of Surrogacy Law and its Potential Development in the UK: Is
There A Clear Way Forward?”, King's Student Law Review, Volume II, Issue: I, 2010, pp.37-50.
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regarding reproductive medicine) provides that medical professionals
should not perform artificial insemination or embryo donation on a
woman, who is intended to hand the child over to commissioning parents
upon birth in accordance with a surrogacy agreement. Non-compliance is
a criminal offence, with the consequence of a fine or imprisonment. ß 13
b states that no person should bring together a surrogate with
commissioning parents or vice versa. Provision concerning the brokering
of surrogacy contracts is made for in the German
Adoptionsvermittlungsgesetz (law concerning the brokering of adoptions
enacted in 1989).
7.5. In Israel
146
In contrast to many other countries, surrogacy procedures are both legal
and funded by the state in Israel. The surrogacy regulation which is called
"Law of Agreements for the Carrying of Foetuses," directs that surrogacy
births must be carried out only in Israeli hospitals. This surrogacy law of
1996 allows state-controlled surrogacy by a government-appointed
committee which its members are chosen by Ministery of Health. The
members of the committee must approve every surrogacy contract
whether carried out according to the related legal norms or not. In order
to qualify for surrogacy contracts, surrogate mother must be older than
22 and younger than 40 and have not given birth more than five times.
Surrogate and intendend parents must supply their medical and genetic
histories, prove their Judaism and provide criminal records from the
police to the committee. Also all three are examined for disease and
mental deviance through blood tests, psychological examinations, and
social aptitude tests. Surrogacy option is limited to the couples only if the
female member of them is unable to become pregnant or to carry a
pregnancy to term. So, she must prove their barrenness to the committee.
Wheras female gamete can be supplied either by the intended mother or
by an anonymous donor, Israeli law does not allow sperm donation66. So,
only intended father must supply own sperm. Israeli surrogacy law grants
autonomy to the surrogate mother during the gestation until delivery of
the child and presumably, deciding the foetal therapy belongs to
surrogate. The Israeli surrogacy law allows the surrogate mother to
terminate the pregnancy at any stage but does not support for a change
66
Teman, “The Medicalization of ‘Nature’ in the ‘Artificial Body’: Surrogate Motherhood in Israel”,
pp. 78-98; Anderson, “An Evaluation of Surrogacy Law and its Potential Development in the UK:
Is There A Clear Way Forward?”, pp.37-50.
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Dr. Sevtap METİN
her mind and keeping child after the birth. By the way, carrying and
delivering a baby for a daughter and sister with alturistic manner (of
course a fortiori accepting ovum donation from mother/sister) is
prohibited in Israeli law for religious reasons related to incest and
adultery67.
7.6. In India
Eventhough currently there are no laws regulating surrogacy in India, not
only it is being practised but growing industry day by day. The Indian
model of surrogacy is close to the liberal market model where surrogacy
is primarily managed by private, commercial agencies that regulate
agreements according to their own criteria and without state interference.
Commercial surrogacy is legal in India, as recognized by the Supreme
Court of India in 2002. Nevertheless, the Ministry of Health and Family
Welfare recently drafted a bill to control and monitor cases of surrogacy
in the country. Proposed legislation in India sets out surrogacy under the
framework for reproductive technology. If passed in the parliamentary
session, the new Assisted Reproductive Technology (Regulation) Bill &
Rules will be allowing monetary gestational surrogacy -but not geneticand which can be applied for only medically unable woman to carry the
baby to term. Only Indian citizens who are older than 21 or younger than
35 years may act as a surrogate. She cannot give more than five live
births, including her own children and not undergo embryo transfer more
than three times for the same couple. The bill provides for legally
enforceable contracts between the Assisted Reproductive Technology
(ART) bank and surrogate and between the intending parent(s) and
surrogate. The surrogate is required to:
•Undergo medical testing for diseases that may endanger her or the child
health;
•Refrain from engaging in any act that would harm to the foetus until the
child is handed over to the intendend couples;
•Agree to relinquish all parental rights concerning the child;
•Agree to undergo foetal reduction if she is carrying more than one
foetus;
67
Ber, “Ethical Issues In Gestational Surrogacy”, pp.153-169; Anderson, “An Evaluation of
Surrogacy Law and its Potential Development in the UK: Is There A Clear Way Forward?”,
pp.37-50.
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•Obtain the consent of her husband if she is married68.
7.7. In Japan
Although not a crime, the Society of Obstetrics and Gynaecology
managed to prohibit surrogacy in Japan after concidering the mental and
physical burden to the surrogate mother and makes family relationships
complex. Current law in Japan states that the mother of a child is the one
who gives birth to the baby. However, there are signs to be considered
some changing in favour of surrogacy for infertile couples by the
Japanese government due to pressure of public opinion although some
Japanese scholars does not expect any positive legal changing in the near
future69.
7.8. In Australia
148
In all states in Australia (except Tasmania which bans all surrogacy under
the Surrogacy Contracts Act 1993*), altruistic surrogacy recognized as
legal. However, in all states and the Australian Capital Territory
arranging commercial surrogacy is a criminal offense, although the
Northern Territory has no legislation governing surrogacy at all.
7.9. In Georgia
Surrogacy, along with ovum and sperm donation, has been legal in
Georgia since 1992. Under applicable law, a donor or surrogate mother
has no parental rights over the child born.
8. The Legal Aspects of Surrogacy in Turkey
New emerging legal matters related to parentage tie resulting from
artificial insemination and embryo transfer are not legally regulated in the
new Turkish Civil Code. Turkish Civil Code adopts the Roman Law
principle “mater sempter carta es /the mother always evident) with regard
to parental relation of newborn with his/her mother. In plain words,
Turkish Civil Code states that the woman who gives birth to be always
68
69
*
Pande,“It May Be Her Eggs But It’s My Blood”: Surrogates and Everyday Forms of Kinship in
India, pp. 379-397; Palattiyil, Blyth, Sidhva, Balakrishnan, “Globalization and cross-border
reproductive services: Ethical implications of surrogacy in India for social work”, pp.686–700.
Semba, Chang, Hong, Kamisato; “Surrogacy: Donor Conception Regulation In Japan”, pp. 348357; Marcelo de Alcantara, “Surrogacy In Japan: Legal Implications For Parentage and
Citizenship”, Family Court Review, Vol. 48, No. 3, July 2010, pp. 417-430. Bhohowever ioe
It is also expected from reports of some sources that in 2011 Tasmania will be introducing the
Surrogacy Bill to the parliament.
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recognized as legal mother. The basic ideas underlying this provision are
as follows:
Having blood ties between foetus and the woman who carries and gives
birth,
Integration of the child with her mother through the umbilical cord, and
Objective determinability and identifiability of maternity according to
the criterion of gastation and childbirth.
Thus, on account of Turkish Civil Code, maternity of the woman giving
birth is the irrebutable presumption. Turkish legislator presumes that
symbiosis (co-life) and the umbilical ties are characteristic features of the
motherhood so, the child integrates with the biological mother rather than
genetic mother. In acordance with artical 282/1 in Turkish Civil Code,
the birth mother can not legally reject the child‟s filiation.
However, the United Nation Convention on Rights of the Child declares
that child always has a right to know who is the genetic mother. But, it
does not entail the child‟s right to reject the legal mother.
There is a specific legislation in Turkey about artificial insemination
which is called “The Regulation of Assisted Reproductive Treatment
Center”. According to article 1 of the Regulation, only married couples
who are not able to have children can undergo to artificial insemination
and embryo transfer. Under second appendix of Regulation, during the
artificial insemination treatments, it must be used married couples‟ own
gamets and they should prove medically their inability to have children
through conventional infertility treatment. Finally, the Regulation
prohibits transfering any foreign embryos which are belonging to the
other third persons. In addition to this statements, Regulation also bans to
transfer the embryos -which are derived from married couple‟s eggs and
sperms- to other candidates. As a result, both eggs/sperm donation and
gestastional surrogacy are certainly forbidden by the Regulation. So,
surrogate motherhood contracts are invalid contracts because of counting
against the mandatory legal norms, individual rights and ethics/evils.
Another question on this subject, whether the parties who are deal with
surrogate motherhood contract demand to fulfill the mutual legal
obligations under this agreement or not. For example, if surrogate mother
(legal mother) rejects to transfer the baby, would intended mother and
father (genetic parents) legally force surrogate to hand over the baby. We
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can answer this question as “no”. The couples (genetic mother and father)
can take the baby from surrogate mother only through the adoption. Of
course it may be possible with the consent of the surrogate mother (MK
309). If the surrogate mother refuses to transfer the baby to intended
parents, the paid money to her in advance is forced to return according to
provisions of unjustice enrichment. If the surrogate mother is married,
surrogate‟s husband is deemed the child‟s legal father (presumption of
paternity, MK.285/1). In sum, surrogate motherhood contracts are neither
valid nor enforcable in Turkish legal order.
Finally, we face a fact in Turkey, it is declared to hospital on behalf of
intended mother instead of birth mother and as if intendend mother gave
birth to child and the child is registered in the name of the intended
couples at the Register of Birth Office as if she gave birth the child. But
this kind of practices are regulated being a crime in Turkish legal order.
So, the person who alter or obscure genetic link of a child shall be
punished with imprisonment from one to three years according to Turkish
Penal Code/ article 231 70.
150
9. Conclusions
Surrogacy has not been considered by many legislators and the laws of
many countries are silent on the issue. Even in jurisdictions where
specific legislation exists, gestational surrogacy is dealt with
inconsistently. Most jurisdictions recognise the gestational mother as
legal mother, requiring adoption by the commissioning parents; but some
give legal priority to the genetic mother. In still other jurisdictions, whilst
surrogacy is technically permitted, surrogacy contracts are unenforceable.
But the reason of this situation may be due to special feature of law rather
than reflecting opposition to surrogacy. Usually legal order fall behind
advances in science and medical technology, socio-economic alteration
and the progress of events.
Surrogate motherhood has the potential to replace adoption and could be
viewed as a preconception adoption. There is no reason to deny this
alternative to infertile couples who want to raise children71. However, it
70
71
Şükran Şıpka, "Taşıyıcı Annelik Ve Getirdiği Hukuki Sorunlar", Çevrimiçi,
http://www.turkhukuksitesi.com, 25.5.2011.
Donovan, “New Reproductive Technologies: Some Legal Dilemmas”, pp. 57-60; Katz, “Surrogate
Motherhood and the Baby-Selling Laws”, pp.1-55; M.Onursal Cin, “Yardımcı Üreme Metotları ve
Embriyonun Korunması”, Hukuki Perspektifler Dergisi, Sayı: 5,Yıl: 2005, pp. 31-37. Cin reflects
surrogacy may be supposed to be a legal solution for infertile couples. Because adoption is
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Dr. Sevtap METİN
is necessary to provide adequate protection of the parties involved and to
prevent abuse and tragedy. If it will be accepted as a means for infertile
couples to obtain children, its legal status must be clarified. So the
ancient roman axiom mater semper certa est does no longer represent a
well-established truth. The law should not to prohibit the practice, but to
establish the conditions and circumstances.
Before making final decision, surrogate may be required to attend
„Surrogate Education Classes‟. The class would give information about
the surrogacy process such as what contracts can and cannot legitimately
demand of women, what past surrogates said about their experiences,
what other employment opportunities are available to women, whether
she can keep the child after birth or not and so forth. The better informed
that women are about genuine alternatives, the less vulnerable they are to
coercion72.
Surrogate must have a right to change her mind and keep the child. A
surrogate mother particularly, who carries a foetus that is genetically
related to her must be able to seeking a court order within limited times
(such as 20 days) of the baby's birth, negating the surrogate agreement
and granting her custody of the child. Because neither the risk of
attachment between the foetus and surrogate mother cannot be ignored,
nor its consequences over-estimated.
Surrogate should be provided with life insurance to protect her family
against the additional health risks she undertakes73.
Surrogacy contract does not grant any right to contracting couple
whatever they wish to do while she is pregnant. Only they can ask
surrogate mother to do what she agreed to do in the contract. Of course,
the surrogate is entitled to decide continuing her pregnancy as well as
terminating, in the same circumstances as any other pregnant woman.
In the end of this article, I would like to talk about a revolutionary
development in medicine. Turkish surgeons successfully transplanted a
uterus into a 21 year old woman after taking it from a cadaveric donor.
The surgery operated at Akdeniz University, (on August 2011) and to be
72
73
legally permisible, having a baby through the surrogacy must be also permisible. In this
method, it is possible for couples to have a baby at least partial genetical bounded to them.
However, Cin is against surrogate motherhood due to pshycological harmful effects upon
surrogate who surrender the baby to intended/genetic parents.
Damelio, Sorensen, “Enhancing Autonomy In Paid Surrogacy”, pp 269-277.
Donovan, “New Reproductive Technologies: Some Legal Dilemmas”, pp. 57-60.
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152
reported as the first uterus transplantation in the world74. Meanwhile, in
case of functioning properly and achieving pregnancy, uterus transplants
would be particularly useful in Muslim countries where surrogate
motherhood is prohibited by Islamic law. Moreover, some disfavor
arguments against surrogacy, negative public perceptions and uncertain
laws around it can cause founding a basis for advocating uterus
transplantation as the „better‟ reproductive alternative. Nevertheless, this
new reproductive technique is not a problem free topic at all. Firstly,
possibility of establishing a pregnancy in a transplanted uterus is low.
Uterus transplantation still offers a little chance of being medically
successful in terms of achieving a healthy pregnancy. So, as well as
promising benefits, it must also be consired potential harms of uterus
transplantation. Even if a healthy pregnancy can be achieved, we do not
have any available data to predict how pregnancy would affect a
transplanted uterus. In addition, the issue is continuing to be discussed
with other medical and ethical dimensions75. Therefore, when all things
are considered, uterus transplantation is not an alternative to surrogate
motherhood practise yet but in the future, it might occur and replaced
surrogacy or to be another option with for some infertile women rather
then being alternative to surrogacy. If this is the case, however, one could
argue that the main objective ought to be to develop the law around
gestational surrogacy, rather than to develop reproductive alternatives.
If the pressure of societal expectations contributes to a woman‟s belief
that she must have children, it is perhaps not unreasonable to suggest that
society incurs an obligation to assist her in that pursuit.
***
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