Surrogacy has long been discussed in reproductive medicine. In the Czech Republic, surrogacy is not legally regulated. Because of this legal vacuum, there are no official procedures or organizations that openly deal with surrogacy. Potential surrogate mothers and applicants do not have many options for obtaining or sharing information. The only source is the Internet. Online forums are a popular tool for gaining information and contacts regarding surrogacy. The goal of this research was to use qualitative research methods to (...) survey the most searched and discussed topics on Czech online discussion forum websites. We used discussions that we found on www.emimino.cz between 2009 and 2019. This article analyses the comments of the Internet forum discussants/participants, their involvement, knowledge of surrogacy, the information sought and their opinions. In particular, the participants discussed where to find a surrogate mother or how to become one. This article attempts to outline the discussions ordinary people have about surrogacy outside official expert forums. (shrink)

Surrogacy is one of the desired reproductive technologies for family formation, yet surrogate mothers are subjected to unethical treatments and unbalanced power relations in India. Such treatment obscures women’s free decision-making and can be detrimental to their maternal self. Recently, the Surrogacy Act, 2021, has received the President’s approval to regulate surrogacy practices by limiting them for the altruistic motives which have again provoked the burning debates regarding reproductive technologies, women’s emancipation and procreative labour. The paper thus explores women’s (...) agency, maternal freedom and surrogate arrangements in Indian society. The complexity of the implementation of the law, vulnerability of surrogate labour, woman’s bodily autonomy and reproductive choices have been analysed. This has been done through comprehensive feminist discussions on motherhood experience in terms of enforced vs. voluntary to find the way to protect women’s freedom and subjectivity in the task of ‘mothering as empowerment’. (shrink)

This article critically examines the argument advanced by Casey Humbyrd in support of international commercial surrogate mothering. It finds her arguments unconvincing especially at the point of implementation. This is because the author was unable to demonstrate how regulation and her notion of fair compensation would not lead to undue inducement and exploitation in resource-poor settings where urgent needs often exist. In fact, the argument advanced in this article is that commercial surrogate mothering cannot but be exploitative in (...) so far as urgent and compelling needs exist. To logically drive home this point, the elements of exploitation were discussed in order to show that regulation and fair compensation cannot prevent exploitative transaction in commercial surrogate mothering arrangements. This may happen in the same way as regulation and compensation framework have not been successful in preventing the allegations of exploitation in the research context especially where studies are conducted in resource-poor countries. (shrink)

보조생식기술이 발달함에 따라 모라는 주체와 자궁이라는 몸은 이제 더 이상 하나의 개념이 아니다. 이것은 특히 대리모 출산에서 법률상 모를 결정하는 경우에 잘 드러난다. 그런데 법학계나 여성계나 대리모를 분석함에 있어서 자녀양육과 연결된 기존의 모성 담론에서 벗어나지 못하고 있다. 푸코의 이론은 현대 과학기술 진보에 따른 모(母) 개념을 모색하는 데 도움을 준다. 푸코는 공간을 주체형성의 인식론적 조건으로 분석한다. 또한 푸코의 주체화 양식의 역사는 생체-권력bio-power으로 지칭되는 헤테로토피아적인 식민 공간에 새겨진 역사(권력의 공간화 역사)와 관련된다. 이를 대리모에 적용하면, 대리모의 자궁은 헤테로토피아로서 대리모를 형성하는 인식론적 조건이다. 푸코가 (...) 헤테로토피아 개념을 통해 정체성을 확립한 것처럼 대리모도 기존의 범주를 해체함으로써 자신의 자궁을 통해 정체성을 찾을 수 있다. 대리모의 자궁은 푸코 자신의 몸처럼 하나의 실재하는 공간이다. 또한 종의 생명을 규율하는 생체-권력에 의해 대리모의 자궁이 어떻게 파편화되고 점유되었는지를 알 수 있다. 대리모 자궁에서의 섹스는 억압받거나 욕망이라기보다 생명의 관리를 위해 작동하는, 생명을 위해 활용되는 기제이다. 헤테로토피아로서의 자궁을 지닌 대리모는 생체-권력의 작동에 따라 자(子)의 완전한 모(母)이면서도 완전한 모(母)가 아니다. 대리모의 자궁은 법에 의해 작동되는 것이 아니라 자본주의와 결부된 생체-권력에 의해 규격화된다. 대리모는 그러한 규격의 작동 결과이다. 그럼에도 불구하고 법이 이미 소멸된 이질적인 공간에서 법적인 주체를 동질적으로 결정하려는 것 자체가 모순이다. (shrink)

The rise of surrogacy in India over the last decade has helped individuals across the world to realize their parenting aspirations. In the macro-context of poverty in India and the hierarchical and patriarchal family set-up, concerns are expressed about coercion of women to participate in surrogacy. While the ethical issues engulfing surrogacy are widely discussed, not much is known about the role women play in the decision-making to participate in surrogacy. The paper aims to addresses this gap and is based (...) on a part of a larger ethnographic study conducted at a surrogacy clinic in Anand, Gujarat, India. We explored experiences of forty-one surrogate mothers using in-depth interviews and analysed the narratives to identify women’s own perceived role in the decision-making to participate in surrogacy. Narratives describing the decision-making process were identified and treated as a preliminary unit of analysis. We examined the use of singular and plural pronouns like “I,” “me,” and “mine” versus “we,” “us,” and “our,” along with the use of active and passive voice to determine whether women assumed responsibility for the decision to participate in surrogacy or they attributed the decision to others. Findings unravelled the complexities of the decision-making process and indicated that eighty-five percent of the women played an active role in the decision-making to participate in surrogacy, albeit with new avenues of exploitation in the commercial market space and raised serious bioethical concerns. (shrink)

Next SectionOne of the major concerns about surrogacy is the potential harm that may be inflicted upon the surrogate mother and the child after relinquishment. Even if one were to take the liberal view that surrogacy should be presumptively allowed on the basis of autonomy and/or compassion, evidence of harm must be taken seriously. In this paper I review the evidence from psychological studies on the effect that relinquishing a child has on the surrogate mother and (...) while it appears that many surrogates are able to cope with relinquishment, I argue that there are good reasons, grounded in empirical evidence, to support the view that the subsequent management of the relinquishment necessarily objectifies the surrogate mother. (shrink)

This article points out a problematic lacuna in our law on surrogate motherhood, namely the lack of objective criteria for evaluating the suitability of a surrogate mother. The recent case of Ex Parte KAF – a case in which a surrogate motherhood agreement confirmation application was dismissed by the Johannesburg High Court – demonstrated how this lacuna can cause conceptual disjunction between the court and the clinical psychologist who evaluates the candidate surrogate mother. The (...) solution suggested in this article is that clinical psychologists who evaluate candidate surrogate mothers should give urgent and careful thought to identifying such objective criteria, and start explicitly articulating these criteria in the reports that they file in surrogate motherhood agreement confirmation applications. This practice will give the court the opportunity to engage with such criteria and to develop precedents in this regard. (shrink)

This article points out a problematic lacuna in our law on surrogate motherhood, namely the lack of objective criteria for evaluating the suitability of a surrogate mother. The recent case of Ex Parte KAF – a case in which a surrogate motherhood agreement confirmation application was dismissed by the Johannesburg High Court – demonstrated how this lacuna can cause conceptual disjunction between the court and the clinical psychologist who evaluates the candidate surrogate mother. The (...) solution suggested in this article is that clinical psychologists who evaluate candidate surrogate mothers should give urgent and careful thought to identifying such objective criteria, and start explicitly articulating these criteria in the reports that they file in surrogate motherhood agreement confirmation applications. This practice will give the court the opportunity to engage with such criteria and to develop precedents in this regard. (shrink)

A longitudinal perspective on motherhood that spans the experience of gestation, birthing, the care of young children, and the mother’s relation to her grown children makes way for a conception of the mother as essentially plural. It shall be argued in this paper that maternity is necessarily tied to surrogacy, that it is divided into a multiplicity of tasks inevitably parceled out to multiple agents. In this essay, the analysis of maternal surrogacy is focused on the phenomenon of (...) mothering from a distance, a maternal practice engendered by the feminization and globalization of labor markets. By both affirming the value of maternal surrogates and questioning the limits of surrogacy, this analysis of motherhood challenges both the economic exploitation that engenders and sustains distant mothering and the gendered division of care labor that supports the global economy of care. (shrink)

This study analyzes the meaning employed mothers give to having others take care of their children. In-depth interviews with 31 employed mothers of preschoolers, toddlers, and infants revealed three interpretations of child care: custodial care, surrogate care, and coordinated care. These meanings mediated the tension between the dominant cultural construction of motherhood and the reality of their lives as both mothers and wage earners. Their perceptions of child care were constructed in accordance with how they defined the relationship between (...) “child rearing” and “child care,” the degree to which they acknowledged their child care providers' care of their children, and definitions of their own mothering. These microideologies of child care demonstrate that mothers are contesting the assumptions of the dominant cultural ideology of motherhood and are rethinking child care as a socialized activity. (shrink)

Elly Teman, Birthing a mother: The surrogate body and the pregnant self, Berkeley: University of California Press, 2010, reviewed by Omi Leissner.

The law ordinarily recognises the woman who gives birth as the mother of a child, but in certain jurisdictions, it will recognise the commissioning couple as the legal parents of a child born to a commercial surrogate. Some commissioning parents have, however, effectively abandoned the children they commission, and in such cases, commercial surrogates may find themselves facing unexpected maternal responsibility for children they had fully intended to give up. Any assumption that commercial surrogates ought to assume maternal (...) responsibility for abandoned children runs contrary to the moral suppositions that typically govern contract surrogacy, in particular, assumptions that gestational carriers are not ‘mothers’ in any morally significant sense. In general, commercial gestational surrogates are almost entirely conceptualised as ‘vessels’. In a moral sense, it is deeply inconsistent to expect commercial surrogates to assume maternal responsibility simply because commissioning parents abandon children for one reason or another. We identify several instances of child abandonment and discuss their implications with regard to the moral conceptualisation of commercial gestational surrogates. We conclude that if gestational surrogates are to remain conceptualised as mere vessels, they should not be expected to assume responsibility for children abandoned by commissioning parents, not even the limited responsibility of giving them up for adoption or surrendering them to the state. (shrink)

Because it is often argued that surrogacy should not be treated as contractual, the question arises in which terms this practice might then be couched. In this article, I argue that a phenomenology of surrogacy centering on the notion of trust provides a description that is illuminating from the moral point of view. My thesis is that surrogacy establishes a complex and extended reproductive unit––the “surrogacy triad” consisting of the surrogate mother, the child, and the intending parents––whose constituents (...) are bound together by mutual trustful commitments. Even though a trust-based approach does not provide an ultimate answer to whether surrogacy should be sanctioned or prohibited, it allows for at least some practical suggestions. In particular, I will argue that, under certain conditions, surrogacy is tenable within familial or other significant relationships, and I will stress the necessity of acknowledging the new relationships and moral commitments that result from this practice. (shrink)

This article examines pregnancy as a dyadic body-project within surrogate motherhood arrangements. In gestational surrogacy arrangements, the surrogate mother agrees to have an embryo that has been created using IVF, with the genetic materials of the intended parents or of anonymous donors, surgically implanted in her womb. Based on anthropological fieldwork among Jewish-Israeli surrogates and intended mothers involved in these arrangements, this article focuses upon the interactive identity management practices that the women jointly undertake during the pregnancy. (...) For each side, creating an unambiguous definition of motherhood was central to their individual identity-work. For surrogates, the possible imputations of immorality required redefining pregnant embodiment as separate from maternal identity, while for intended mothers, the surrogate’s embodiment of the pregnancy represented competing claims to their own maternity. Through verbal communication and through practices of disembodiment and vicarious embodiment, the women construct a ‘shifting body’ which they use to designate the social label of pregnancy, identity-building processes associated with pregnant embodiment, and even the lived experience of pregnancy. This example of a dyadic body-project contributes to the existing scholarship on the role of the body in the management of identity. While previous works have examined projects of the body as individualistic pursuits, the shifting body exemplifies that body-projects can be collaborative, dual forms of identity-work and that pregnancy can be the site of these projects. (shrink)

This chapter contains sections titled: Moral Arguments against and for Surrogate Motherhood Legal Remedies for Surrogate Motherhood Perspectives of Health‐care Practitioners on Surrogate Motherhood Perspectives of Society on Surrogate Motherhood Conclusion.

How shall we decide for others who cannot decide for themselves? And who—or what, in the case of artificial intelligence — should make the decision? The present issue of the journal tackles several interrelated topics, many of them having to do with surrogate decision making. For example, the feature article by Jardas et al 1 explores the potential use of artificial intelligence to predict incapacitated patients’ likely treatment preferences based on their sociodemographic characteristics, raising questions about the means by (...) which we come to decide for others. And a clinical ethics round table led by Wilkinson and Pillay2 examines the case of a premature baby on life support whose primary surrogate is herself incapacitated. Together, these examples force us to think more deeply about the meaning and significance of taken-for-granted concepts: respect for autonomy, substituted judgement, best interests. We’ll consider the baby first and then turn to AI. “Baby T” is a critically ill newborn delivered prematurely by emergency caesarean section. The mother had entered into a surrogacy arrangement with a same-sex male couple, the intended parents, who were to take over the baby’s care after birth—just as soon as a formal parental order could be obtained through the court. Until then, the birth mother, who had used her own eggs to conceive Baby T along with sperm from an unidentified donor, would have legal and ethical responsibility to decide about the baby’s care. Unfortunately, she too was in critical condition, having fallen unconscious prior to delivery due to a sudden brain haemorrhage. She remained unconscious, and thus incapacitated, during a crucial period in which time-sensitive decisions about Baby T’s care needed to be made, including whether to continue life support. Given the mother’s incapacity, who should …. (shrink)

Gestational surrogacy as a treatment for infertility is being practised in some well-known medical institutions in Tehran and some other cities in Iran. While the majority of Muslims in the world are Sunni, the majority of Iranians are Shiite. Most Sunni scholars do not permit surrogate motherhood, since it involves introducing the sperm of a man into the uterus of a woman to whom he is not married. Most Shiite scholars, however, have issued jurisprudential decrees (fatwas) that allow (...) class='Hi'>surrogate motherhood as a treatment for infertility, albeit only for legal couples. They regard this practice as transferring an embryo or fetus from one womb to another, which is not forbidden in Shiite jurisprudence. Nevertheless, there are some controversies concerning some issues such as kinship and inheritance. The main ethical concern of Iran’s experience with gestational surrogacy is the monetary relation between the intended couple and the surrogate mother. While monetary remuneration is practised in Iran and allowed by religious authorities, it seems to suffer from ethical problems. This article proposes that this kind of monetary relation should be modified and limited to reimbursement of normal costs. Such modification requires new legislation and religious decrees. (shrink)

This paper will explore some moral and conceptual aspects of the practice of surrogate motherhood. Although I put forward a number of criticisms of existing ideas about this subject, I do not claim to offer a fully developed position. Instead what I have tried to do is to call into question what seem to be some generally accepted assumptions about surrogate motherhood, and to lend plausibility to my view that surrogate motherhood may be morally troubling for reasons (...) not always fully recognized by other writers on this issue. These reasons go beyond the fairly obvious consequentialist concerns about its effects on the persons - particularly the child — involved. A concern for the well being of a child produced by a surrogate is, I believe, entirely justified, but my focus in this paper will be upon the surrogate mother herself. (shrink)

This paper will explore some moral and conceptual aspects of the practice of surrogate motherhood. Although I put forward a number of criticisms of existing ideas about this subject, I do not claim to offer a fully developed position. Instead what I have tried to do is to call into question what seem to be some generally accepted assumptions about surrogate motherhood, and to lend plausibility to my view that surrogate motherhood may be morally troubling for reasons (...) not always fully recognized by other writers on this issue. These reasons go beyond the fairly obvious consequentialist concerns about its effects on the persons - particularly the child — involved. A concern for the well being of a child produced by a surrogate is, I believe, entirely justified, but my focus in this paper will be upon the surrogate mother herself. (shrink)

ABSTRACT In the first part of this article I discuss some objections which assert that surrogacy is primarily—but not exclusively—harmful in a moral sense. After examination of mainly but not exclusively morality‐dependent harms (objections from similarity with prostitution, exploitation, etc.) and after the discussion of possible non‐morality‐dependent harms (baby, couple, surrogate mother, agency, etc.), I argue, in the second part, that no one reason supports the possible prohibition of surrogacy. In the last part I try to show why (...) moral reasons alone could not be sufficient to criminalize any kind of activity—including surrogacy—in a liberal order. (shrink)

The case states that a male same-sex couple entered into a surrogacy arrangement with an unrelated surrogate using donor sperm and the surrogate’s eggs. M is the legal mother pursuant to s33 of the Human Fertilisation and Embryology Act 2008. Though the facts tell us that there was no legally binding arrangement, this is in fact the position of the law: under s1A Surrogacy Arrangements Act, no surrogacy arrangements can ever be binding on the parties. It is (...) not clear whether the donor sperm is from one of the same-sex couple or not. If it was donor sperm and not from either intended father, this is not an arrangement that would be recognised in law, as one of the men must be genetically related to the child in order for them to obtain legal parenthood via a parental order, under s54 HFEA 2008. They could apply to adopt the child, although they may fall foul of adoption legislation1 if any money has moved between them and M and they do not fall within an exemption.2 In any event, an adoption cannot be achieved in time for them to obtain legal parenthood in a crisis situation. In the absence of a biological connection and the resulting legal parenthood, in order to obtain parental responsibility for the child to allow them to make decisions about Baby T’s care, the men would need to apply for leave to apply for a child arrangements order pursuant to s10 Children Act 1989. However, in the …. (shrink)

As clinicians, this case1 raises both personal and professional challenges. A key issue is who carries legal parental responsibility for the difficult decisions that may be required around life-sustaining care in baby T. Medicolegally, we understand that the surrogate mother holds legal parental responsibility for baby T until this can be transferred to the intended parents.2 But this process can take many months to complete, after the birth of baby. As M is now critically ill and unable to (...) engage in any discussion around the care of her baby, who becomes the legal guardian of the baby, for complex decision making that involves either reorientation of care away from intensive care with the inevitable consequence of death in this extremely premature baby, or continuing this life-sustaining treatment with a high likelihood for major neonatal morbidity and longer term disability? Does it pass onto one of the IPs as the genetic father, or does this responsibility fall on the neonatal consultant managing the baby in intensive care? And if an antenatal surrogacy agreement had existed, is it legally binding for inclusion of the IPs perspectives in the decision-making, especially if our medical decision making turns out to be at discord with the beliefs and wishes of the IPs for baby T? Box 1 ### Current surrogacy proceedings in the UK.2 6–8 The Law Commission UK5 is currently reviewing the decision on whether legal parenthood to intended parents can be effected immediately at the time of birth of the baby. Parental orders. (shrink)

Care of the critically ill newborn includes support for the birth mother/parents with regular updates around the clinical condition of the baby, and involvement in discussions around complex decision-making issues. Discussions around continuation or discontinuation of life-sustaining are challenging even in the most straightforward of cases, but what happens when the birth mother is critically unwell? Such cases can lead to uncertainty around who should assume the parental role for these difficult discussions. In this round table discussion, we (...) explore the ethical, moral and legal uncertainties raised by coincident severe maternal and neonatal illness in the context of surrogacy. (shrink)

This article explores commonalities between parental claims for lesbian co-mothers and other contexts in which intention is a key aspect to family formation for (mostly) heterosexual families: in particular, surrogacy and pre-birth disputes over embryos. Through a series of case studies drawn from recent reproductive controversies, the paper uses the lens of empathy to argue for social or non-genetic modes of parenthood connecting lesbian mothers and other ‘reproductive outsiders’.

Conservative ethical systems, particularly organized religions, are frequently at odds with the means, if not the goals of the new reproductive technologies. Among the most problematic measures adopted in recent years to allow childless women to raise genetically related offspring is surrogate motherhood. Traditional Jewish law, or Halakha, notwithstanding this reluctance, is, nevertheless, more likely than many others to find reasons to justify the practice, given its well-known stance viz procreation and its leniency regarding the new reproductive technologies. In (...) the following article, we ask whether Halakha, which allows abortion to save the life of a mother, would sanction the employment of a surrogacy arrangement in the case where pregnancy threats her life, in order to save the fetus as well. (shrink)

In the case that triggered this round-table discussion there are three separate factors that contribute to moral uncertainty.1 First, the infant, baby T, is extremely premature with suspected brain injury and potentially poor prognosis. Second, the gestational mother is critically unwell herself and her outlook is guarded. Third, as linked commentaries make clear, the legal status of the intended parents is complex and ambiguous.2 3 Any of these factors on their own would be enough to generate ethical complexity and (...) distress in the neonatal intensive care unit. The combination of the three is likely to be highly stressful for all concerned.4 Commentaries on the case emphasise the complex legal questions and the potential need to involve the court. One resource that is not mentioned is the potential value of clinical ethics input in such a case. This is complementary to the need for legal advice. Its aim would be to help think through the specifically ethical, rather than legal questions. There are several things that I would aim to clarify if chairing a clinical ethics discussion on the case. First, it may be useful to draw on the concept of the …. (shrink)

McLachlan and Swales dispute my arguments against commercial surrogatemotherhood. In reply, I argue that commercial surrogate contractsobjectionably commodify children because they regardparental rights over children not as trusts, to be allocated in the bestinterests of the child, but as like property rights, to be allocatedat the will o the parents. They also express disrespect for mothers, bycompromising their inalienable right to act in the best interest of theirchildren, when this interest calls for mothers to assert a custody rightin their (...) children. (shrink)

An Irish surrogacy case from 2013 illustrates how negotiations of the mother’s identity in a given national and legal context are drawing on novel scientific perspectives, at a time when the use of new biotechnological possibilities is becoming more widespread and commonplace. The Roman dictum, ‘Mater Semper Certa Est’ is contested by the finding of this Irish court, in which the judge made a declaration of parentage stating that the genetic parents of twins born using a surrogate were (...) the parents. This article critically examines the normative background assumptions involved in this ruling. It will argue that the particular deployment of arguments from genetics and epigenetics in this court case produces a naturalization of the mother’s identity that is inherently reductive. A second surrogacy case is also examined, this time regarding the rights of a woman of Irish nationality to receive paid maternity leave or paid leave similar to adoptive leave after the birth of her daughter to a surrogate mother in the US state of California. This case, which was brought to the Equality Tribunal in Ireland and decided by the Court of Justice of the European Union, is used to illustrate the possible ramifications of conflicting definitions of motherhood in the legal system. In concluding, this article argues for the development and deployment of a more complex understanding of the evolving state of motherhood within the courts, in keeping with developments in the IVF industry and the various new mother-relations it makes possible. (shrink)

In this paper we examine the questions “What does it mean to be a surrogate mother?” and “What would be an appropriate perspective for a surrogate mother to have on her pregnancy?” In response to the objection that such contracts are alienating or dehumanising since they require women to suppress their evolving perspective on their pregnancies, liberal supporters of surrogate motherhood argue that the freedom to contract includes the freedom to enter a contract to bear (...) a child for an infertile couple. After entering the contract the surrogate may not be free to interpret her pregnancy as that of a non-surrogate mother, but there is more than one appropriate way of interpreting one's pregnancy. To restrict or ban surrogacy contracts would be to prohibit women from making other particular interpretations of their pregnancies they may wish to make, requiring them to live up to a culturally constituted image of ideal motherhood. We examine three interpretations of a “surrogate pregnancy” that are implicit in the views and arguments put forward by ethicists, surrogacy agencies, and surrogate mothers themselves. We hope to show that our concern in this regard goes beyond the view that surrogacy contracts deny or suppress the natural, instinctive or conventional interpretation of pregnancy. (shrink)