Surrogacy - Medical and Ethical Considerations

Craig L. Best, M.D., M.P.H.
Assistant Clinical Professor of Obstetrics, Gynecology
and Reproductive Biology
Harvard Medical School

The traditional concept of motherhood embodies a combination of genetic, biological, social and legal factors. With the rapid advancement of reproductive technologies, it is now possible to separate these aspects of parenthood. A genetic mother supplies the genetic material, or egg. A biological mother carries the child in her uterus during pregnancy. A rearing mother raises the child after birth. In general, the mother who raises a child is recognized by society as the child’s mother, with all of the social and legal responsibilities that accompany parenthood.

In surrogacy, the biological and, sometimes, genetic aspects of childbearing are separated from parental rights and responsibilities through an agreement to transfer the infant at birth. There are two types of surrogacy that are practiced – traditional surrogacy and gestational surrogacy. Traditional surrogacy is more common and has been around since biblical times. In traditional surrogacy, a woman contracts with an infertile couple to provide her egg(s) and uterus in an effort to produce a child for the couple. The surrogate is inseminated with sperm from the man of the infertile couple. If she conceives, she carries and delivers the child. The surrogate, therefore, is both the biological and genetic mother. The child is then adopted by the infertile couple in accordance with the pre-pregnancy agreement drawn up by an attorney for the parties involved. Included in the pre-pregnancy agreement is a financial compensation for the surrogate who has devoted much time and energy and has accepted the risks and inconveniences of pregnancy. Women who are candidates for this procedure are those with no eggs, poor egg quality, or women with a severely scarred uterine lining (i.e., Asherman’s syndrome). Other reasons for considering surrogacy include significant medical problems that may put a woman at great risk during pregnancy and the presence of undesirable genetic traits in a woman that have a high likelihood of being passed on to an unborn child. Surrogacy is attractive to some infertile couples as it allows them to have a child who is the genetic offspring of the father. Often, couples entering into such an arrangement have a greater sense of control than with adoption.

In gestational surrogacy, also called gestational care and host-uterus, the genetic parents are also the intended parents. The first reported birth from gestational surrogacy was in 1986. This option has only been available since the advent of in vitro fertilization with the ability to extract eggs from one woman, fertilize them outside of her body with sperm from her husband or partner, and replace on or more fertilized eggs, or embryos, into another woman’s uterus. In this situation, the development of the lining of the uterus is controlled through hormone administration and must be synchronous with egg development in the other woman. If one or more embryos implant, the gestational carrier proceeds with the pregnancy. After delivery, the child(ren) are raised by the genetic parents. The gestational carrier may be known (e.g., a sister) or unknown to the infertile couple before the arrangement is finalized. It is recommended, and sometimes required by fertility programs, that both parties have legal representation for gestational surrogacy, even if the women are related to one another. Financial compensation is the rule for unknown gestational carriers but may not be requested when a woman well-known to the couple is performing this service for altruistic reasons. Reasons for considering gestational surrogacy include situations where a woman’s uterus is surgically or congenitally absent, malformed, or unable to allow implantation or normal fetal development. In addition, women with severe health problems in whom pregnancy poses a significant risk might consider this option. This arrangement is attractive to some infertile couples as it allows them to have a child who is their genetic offspring when carrying a pregnancy is impossible or dangerous.

What has concerned people about these available treatments is whether they are right, or ethical, and whether they should be allowed. When dealing with ethics, there are three main principles that must be kept in mind: (1) Respect for persons. This involves the respect for an individual’s wishes (autonomy), so long as they are competent to make informed decisions. (2) Beneficence.This goes beyond the ethic of, "Do no harm, " by imposing a duty to advance the welfare of individuals. (3) Justice. This underscores the importance of fairness in dealing with all parties involved. In both traditional and gestational surrogacy, there is usually no questions that the pregnancy is planned and very desired by the infertile couple. The ethical issues that surround these treatments have to do with the carrier, or surrogate, who undertakes the risks of pregnancy without anticipating the rewards of parenthood. Questions may arise about whether the surrogate is being coerced into accepting this arrangement. In traditional surrogacy, the lure of money may raise the issue of whether wealthier women and couples are taking advantage of poorer women. In gestational surrogacy using a relative as the carrier, there may be unspoken pressures to comply with the desires of the infertile couple’s wishes. Other issues that have been raised are whether traditional surrogacy amounts to "baby buying." In addition to these ethical issues, it is often difficult to know how the relationships among all involved individuals will be affected if success is achieved. Expectations of how the surrogate, or carrier, will relate to the infertile couple and their child may differ vastly. It is also difficult to predict whether the surrogate, or carrier, will change her mind during the pregnancy and decide she wants to keep the child. Although not likely to occur, it is often this issue that concerns people most when considering surrogacy or gestational care.

The importance of pre-treatment counseling of all parties involved by a trained mental health professional cannot be minimized. This type of counseling can help people to confront their concerns and decide whether this treatment is appropriate for them. An attorney familiar with matters pertaining to reproductive choice and rights must also be involved to assist the involved individuals in drawing up a fair contract. It must be made clear that the surrogate, or gestational carrier, has the right to make all decisions regarding prenatal care and procedures. Issues such as amniocentesis or whether to abort a child with known genetic or structural abnormalities must be discussed in detail before the infertile couple and surrogate enter into an arrangement.

In summary, the ethical, legal, medical, social, and psychological issues involved in traditional and gestational surrogacy are numerous and complex. Each of these areas must be explored in detail by couples and individuals contemplating such treatments before making decisions regarding whether these options are appropriate for them. Above all, the most important underlying principles are that children should not be conceived unless there is a loving family to receive them and that no one should be exploited in the process.