The future of surrogacy: a review of current global trends and national landscapes.

The practice of surrogacy is frequently the subject of media, scientific, social, regulatory and policy attention. Although it is, for many, an accepted form of assisted reproduction for those who would otherwise not be able to have children, surrogacy often generates strong feeling, particularly where there is any possibility of exploitation. Therefore, there is disagreement about how it should be regulated. In some countries, surrogacy is prohibited in any form, although this does not stop people using it. In others, it is unregulated but still practised. In some nations it is regulated in either a 'commercial' or an 'altruistic' model. This review article considers the possible regulatory future of surrogacy, initially from a UK perspective considering a recent review of the legal framework in a country where surrogacy works well (although some cross borders to access it), and then through an assessment of global trends and other national perspectives. It concludes that the international regulation of surrogacy, although potentially desirable, is unlikely. This being the case, it would be preferable for individual nations to regulate surrogacy so it can be undertaken in ways that are safe, ethical and protective of the best interests of children, surrogates, intended parents and families.

Consensus-Driven Recommendations to Support Physician Pregnancy, Adoption, Surrogacy, Parental Leave, and Lactation in Emergency Medicine.

The emergency department clinical environment is unique, and guidelines for promoting supportive and equitable workplace cultures ensure success and longevity for pregnant persons and parents in emergency medicine. There is paucity, variability, and dissatisfaction with current parental (historically referred to as maternity and paternity) leave policies. This paper describes the development of consensus-derived recommendations to serve as a framework for emergency departments across the country for incorporating family-friendly policies. Policies that foster a family-inclusive workplace by allowing for professional advancement without sacrificing personal values regardless of sex, gender, and gender identity are critical for emergency medicine recruitment and retention.

Does contract surrogacy undermine gender equality?

Some feminists hold that surrogacy contracts should be unenforceable or illegal because they contribute to and perpetuate unjust gender inequalities. I argue that in developed countries, surrogacy contracts either wouldn't have these negative effects or that these effects could be mitigated via regulation. Furthermore, the existence of a regulated surrogacy market is preferable on consequentialist grounds.

Surrogacy and the significance of gestation: Implications for law and policy.

Gestational surrogacy is ethically complex, generating very different responses in law and policy worldwide. This paper argues that contemporary surrogacy law and policy, across many jurisdictions, fail to give sufficient attention to the significance of the relationship between the child and the gestational surrogate. This failure risks repeating the mistakes of historical, discredited approaches to adoption and donor-assisted conception. This paper argues that proper recognition of the significance of gestation must be an organising principle in surrogacy law and policy. The paper begins by pointing to examples of surrogacy law and practice where the role of the gestator is unacceptably minimised, most notably the framing of the surrogate as a mere 'carrier'. It goes on to examine the nature of gestation, including consideration of contemporary scholarship on the metaphysics of pregnancy and emerging work in epigenetics, and argues that current evidence supports the view that the gestational relationship must be taken more seriously than it currently is. The paper then draws analogies with parenthood in donor-assisted conception and adoption to argue that approaches to parental status in novel family formations that fail to promote transparency and seek to deny the truth of familial relationships are doomed to fail. The paper concludes by suggesting some implications for law and policy that flow from placing sufficient emphasis on the gestational role. The overarching thesis of this paper is that gestational surrogacy is ethically permissible when these fundamental requirements are adhered to, and that surrogacy law should proceed on this basis.

The private-legal nature of the application of the methods of assisted reproductive technologies in Ukraine.

OBJECTIVE: Aim: Analyze the legislation, judicial practice of Ukraine and EU countries, scientific views on surrogacy, as well as the procedure for legal regulation and registration of the procedure of surrogacy. PATIENTS AND METHODS: Materials and Methods: The following materials were used to write the scientific work: the practice of a number of countries was analyzed; scientific works have been studied; some methods of assisted reproductive technologies are described; the practice of the European Court of Human Rights is analyzed. When conducting the research, a methodology was used that embodies an interdisciplinary approach, which allows for a systematic analysis of theoretical and practical aspects of legal relations arising from the provision of medical services. CONCLUSION: Conclusions: At the legislative level, the provision of medical services (surrogate motherhood services) is partially regulated, therefore the basis of the legal relationship between the performers (surrogate mother) and the customers (genetic parents) is the contract concluded and signed by the parties on the provision of surrogate motherhood services. A contract in defined legal relations is a source of law. This contract is bilateral, paid and consensual.

Popular repugnance contrasts with legal bans on controversial markets.

We study popular attitudes in Germany, Spain, the Philippines, and the United States toward three controversial markets-prostitution, surrogacy, and global kidney exchange (GKE). Of those markets, only prostitution is banned in the United States and the Philippines, and only prostitution is allowed in Germany and Spain. Unlike prostitution, majorities support legalization of surrogacy and GKE in all four countries. So, there is not a simple relation between public support for markets, or bans, and their legal and regulatory status. Because both markets and bans on markets require social support to work well, this sheds light on the prospects for effective regulation of controversial markets.

An Award of Damages for Commercial Surrogacy Overseas?

This article examines the United Kingdom Supreme Court decision in Whittington Hospital NHS Trust v XX [2020] UKSC 14. The case centred on whether damages could be awarded for the cost of a commercial surrogacy arrangement in California, following clinical negligence by the hospital that left the plaintiff unable to carry her own children. After examination of this case, the article outlines and compares the United Kingdom and Australian surrogacy laws. It then discusses how a similar case would be decided in Australia and argues that the result would be the same in some Australian States. It also discusses the concept of reproductive autonomy and the importance of this concept when considering cases involving the loss of fertility.

Medical and mental health implications of gestational surrogacy.

Gestational surrogacy in the United States has quadrupled since 1999, but to date, only a few states explicitly permit compensated gestational surrogacy. Current legal prohibitions are often influenced by outdated and stereotyped understandings of surrogacy. It is increasingly important to understand the current literature about the medical and mental health impacts of surrogacy and how state legislatures have addressed compensated gestational surrogacy in recent years. Based on this review, we found no evidence of substantial adverse medical or psychological outcomes among women who are gestational carriers or among the children they give birth to. The literature suggests that gestational surrogacy is a safe and increasingly popular option for families as long as rigorous screening and medical, psychological, and social supports are equitably provided. As states move to responsibly legalize and regulate gestational surrogacy, there is a continued need for further longitudinal studies on the health and psychological outcomes of gestational surrogacy.

Surrogacy and "Procreative Tourism". What Does the Future Hold from the Ethical and Legal Perspectives?

Background and objectives: To explore the ethical and legal complexities arising from the controversial issue of surrogacy, particularly in terms of how they affect fundamental rights of children and parents. Surrogacy is a form of medically-assisted procreation (MAP) in which a woman "lends" her uterus to carry out a pregnancy on behalf of a third party. There are pathological conditions, such as uterine agenesis or hysterectomy outcomes, that may prevent prospective mothers from becoming pregnant or carry a pregnancy to term; such patients may consider finding a surrogate mother. Many issues relating to surrogacy remain unresolved, with significant disagreements and controversy within the scientific community and public opinion. There are several factors called into play and multiple parties and stakeholders whose objectives and interests need to somehow be reconciled. First and foremost, the authors contend, it is essential to prioritize and uphold the rights of children born through surrogacy and heterologous MAP. Materials and methods: To draw a parallel between Italy and the rest of the world, the legislation in force in twelve European countries was analyzed, eleven of which are part of the European Union (France, Germany, Italy, Spain, Greece, Netherlands, Belgium, Denmark, Lithuania, Czech Republic and Portugal) and three non-members of the same (United Kingdom, Ukraine and Russia), as well as that of twelve non-European countries considered exemplary (United States, Canada, Australia, India, China, Thailand, Israel, Nigeria and South Africa); in particular, legislative sources and legal databases were drawn upon, in order to draw a comparison with the Italian legislation currently in force and map out the evolution of the Italian case law on the basis of the judgments issued by Italian courts, including the Constitutional and Supreme Courts and the European Court of Human Rights (ECHR); search engines such as PubMed and Google Scholar were also used, by entering the keywords "surrogacy" and "surrogate motherhood", to find scientific articles concerning assisted reproduction techniques with a close focus on surrogacy. Results: SM is a prohibited and sanctioned practice in Italy; on the other hand, it is allowed in other countries of the world, which leads Italian couples, or couples from other countries where it is banned, to often contact foreign centers in order to undertake a MAP pathway which includes surrogacy; in addition, challenges may arise from the legal status of children born through surrogacy abroad: to date, in most countries, there is no specific legislation aimed at regulating their legal registration and parental status. Conclusion: With reference to the Italian context, despite the scientific and legal evolution on the subject, a legislative intervention aimed at filling the regulatory gaps in terms of heterologous MAP and surrogacy has not yet come to fruition. Considering the possibility of "fertility tourism", i.e., traveling to countries where the practice is legal, as indeed already happens in a relatively significant number of cases, the current legislation, although integrated by the legal interpretation, does not appear to be effective in avoiding the phenomenon of procreative tourism. Moreover, to overcome some contradictions currently present between law 40 and law 194, it would be appropriate to outline an organic and exhaustive framework of rules, which should take into account the multiplicity of interests at stake, in keeping with a fair and sustainable balance when regulating such practices.

A Step Too Far? Whittington Hospital NHS Trust v XX [2020] UKSC 14.

This comment piece explores the decision in Whittington Hospital NHS Trust v XX [2020] UKSC 14. It argues that despite notable shifts in public policy in respect of the acceptability of surrogacy as a means of family formation in the past twenty years, the Supreme Court has taken a step too far in deciding that foreign commercial surrogacy is as widely socially accepted. This impacts on the reasonableness of any claim for damages in negligence for the costs of commercial surrogacy. It is posited that the issue of whether damages for foreign commercial surrogacy are reasonable or not will be the key battleground in future negligence cases of this type.

Understanding gestational surrogacy in the United States: a primer for obstetricians and gynecologists.

As gestational surrogacy (a process by which intended parents contract with a woman to carry a fetus that the intended parents will raise) increases across the United States, it is imperative that obstetrician/gynecologists understand the unique nuances of caring for patients who are gestational surrogates. Gestational surrogacy offers a route to parenthood for individuals and families who may otherwise have limited options. Understanding surrogacy requires multiple ethical considerations about the potential medical and psychosocial effects on gestational surrogates as well as the families built through surrogacy. There is a dearth of research on the subject, particularly in the United States and other countries that practice compensated surrogacy. Here we seek to review the process of gestational surrogacy in the United States, including the legal landscape, current trends in gestational surrogacy use, and what is known about the medical and social effects of this process on all participants. We also aim to highlight the limitations of available data and to identify topics for future research to provide optimal evidence-based and just care for these patients.

Regulating the international surrogacy market:the ethics of commercial surrogacy in the Netherlands and India.

It is unclear what proper remuneration for surrogacy is, since countries disagree and both commercial and altruistic surrogacy have ethical drawbacks. In the presence of cross-border surrogacy, these ethical drawbacks are exacerbated. In this article, we explore what would be ethical remuneration for surrogacy, and suggest regulations for how to ensure this in the international context. A normative ethical analysis of commercial surrogacy is conducted. Various arguments against commercial surrogacy are explored, such as exploitation and commodification of surrogates, reproductive capacities, and the child. We argue that, although commodification and exploitation can occur, these problems are not specific to surrogacy but should be understood in the broader context of an unequal world. Moreover, at least some of these arguments are based on symbolic rhetoric or they lack knowledge of real-world experiences. In line with this critique we argue that commercial surrogacy can be justified, but how and under what circumstances depends on the context. Surrogates should be paid a sufficient amount and regulations should be in order. In this article, the Netherlands and India (where commercial surrogacy was legal until 2015) are case examples of contexts that differ in many respects. In both contexts, surrogacy can be seen as a legitimate form of work, which requires the same wage and safety standards as other forms of labor. Payments for surrogacy need to be high enough to avoid exploitation by underpayment, which can be established by the mechanisms of either minimum wage (in high income countries such as the Netherlands), or Fair-Trade guidelines (in lower-middle income countries such as India). An international treaty governing commercial surrogacy should be in place, and local professional bodies to protect the interests of surrogates should be required. Commercial surrogacy should be permitted across the globe, which would also reduce the need for intended parents to seek surrogacy services abroad.

Is International Surrogacy the Lark's Glimmer?: When Covid-19 Reveals the Legal Insecurity of Surrogacy Use.

If globalisation has led to a greater mobility of people specific issues have emerged with the current coronavirus pandemic. Consequently, extreme measures have been taken worldwide to flatten the curb of the virus. From lockdowns to several levels of isolation these measures have worked undoubtedly for some situations. Nonetheless, these same measures have sown chaos in other situations. One good example is surrogacy especially when this practice is undergone overseas, revealing the legal insecurity of the use of surrogacy whether for the intended parents, the surrogate born child or the surrogate mother for whom the risks have heightened.

A review of surrogate motherhood regulation in south American countries: pointing to a need for an international legal framework.

BACKGROUND: Advances in science and technology coupled with globalization are changing access to and utilization of reproductive health services. This includes the transnational phenomenon of families who use surrogate mothers to reproduce, with forms of altruistic and commercial surrogacy becoming more commonplace. Simultaneously, changes in law, regulation, and policy are necessary to protect surrogates, intended parents, and resulting children. These developments have been slow to adapt to challenges inherent to surrogacy arrangements, most specifically in low-and middle-income countries, including in South American countries. METHODS: We conducted an interdisciplinary non-systematic literature review and legal analysis of existing and pending policy, laws, and regulations related to commercial surrogacy arrangements in Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, and Venezuela. The review focused on articles that discussed topics of domestic and international law, policy, regulation, and governance related to commercial surrogacy. We queried PubMed, JSTOR, and Google Scholar for Spanish and English-language articles limited to those published between 2000 and 2016. RESULTS: Our literature and legal review found a wide variance in how different countries address the issue, including two (Brazil and Uruguay) that have issued guidance attempting to clarify the legality of commercial surrogacy, others who have introduced surrogacy-specific legislation, and a final group with no specific legal mechanisms in place. Our extracted legal case studies also indicate that courts have a hard time interpreting existing law and its applicability to surrogacy. The influence of Catholicism also played a role in the adoption of surrogacy and other advanced reproductive technology (ART)-related legislation. CONCLUSIONS: Changes in global infertility rates, the emergence of new family structures, and advancement of ART are factors that will influence future development of legal frameworks addressing surrogacy in South America. Despite a growing transnational market for commercial surrogacy in many of the countries examined, the current patchwork of policy does little to clarify what forms of surrogacy are legally permissible, nor do they adequately protect surrogates, intended parents, or the children themselves. This points to an urgent need for regional legal and policy harmonization specifically designed to align with public health and human rights principles.

Parentage, Surrogacy and the Perplexing State of Australian Law: A Missed Opportunity.

Following the decision of Bernieres v Dhopal (2017) 324 FLR 21; [2017] FamCAFC 180 it seems that intended parents of children born via overseas compensated surrogacy arrangements will not be recognised as legal parents in Australia. This decision results in harmful outcomes for children and represents a missed opportunity for the Full Court of the Australian Family Court to resolve this issue. Therefore, this article is intended to act as a plea for a review of the approach. Acknowledging the difficulties faced by the Family Court in attempting to resolve issues of parentage in compensated surrogacy cases within the parameters of the Family Law Act 1975 (Cth), the authors suggest two possible alternative approaches. These approaches would enable the Court to stay true to the existing legislative framework while at the same time achieving what is clearly the desirable outcome for the children; that is: having their intended and functional parents recognised as their legal parents.

Surrogacy and the ECtHR: Reflections on Paradiso and Campanelli v Italy.

This case note analyses the recent judgment of the European Court of Human Rights in Paradiso and Campanelli v Italy and examines its implications for cross-border surrogacy in Europe. It is argued that this judgment is highly significant, because it sets new standards in terms of the concept of family life under Article 8 of the European Convention on Human Rights. This judgment, it is argued, only appears to bring a halt to the (seemingly) backdoor legitimacy of commercial surrogacy established by the findings of the Second Section and previous judgments of the Court. Finally, this case note critiques the Grand Chamber's findings and examines its likely impact on the problem of cross-border surrogacy.

Removing Harmful Options: The Law and Ethics of International Commercial Surrogacy.

Focusing on the UK as a case study, this article argues that having the choice to enter into an international commercial surrogacy arrangement can be harmful, but that neither legalisation nor punitive restriction offers an adequate way to reduce this risk. Whether or not having certain options can harm individuals is central to current debates about the sale of organs. We assess and apply the arguments from that debate to international commercial surrogacy, showing that simply having the option to enter into a commercial surrogacy arrangement can harm potential vendors individually and collectively, particularly given its sexed dimension. We reject the argument that legalizing commercial surrogacy in the UK could reduce international exploitation. We also find that a punitive approach towards intended parents utilizing commercial rather than altruistic services is inappropriate. Drawing on challenges in the regulation of forced marriage and female genital cutting, we propose that international collaboration towards control of commercial surrogacy is a better strategy for preserving the delicate balancing of surrogate mothers' protection and children's welfare in UK law.

So not mothers: responsibility for surrogate orphans.

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.

Positioning uterus transplantation as a 'more ethical' alternative to surrogacy: Exploring symmetries between uterus transplantation and surrogacy through analysis of a Swedish government white paper.

Within the ethics and science literature surrounding uterus transplantation (UTx), emphasis is often placed on the extent to which UTx might improve upon, or offer additional benefits when compared to, existing 'treatment options' for women with absolute uterine factor infertility, such as adoption and gestational surrogacy. Within this literature UTx is often positioned as superior to surrogacy because it can deliver things that surrogacy cannot (such as the experience of gestation). Yet, in addition to claims that UTx is superior in the aforementioned sense it is also often assumed (either implicitly or explicitly) that UTx is less fraught with ethical difficulties and thus should be considered a less morally problematic option. This article seeks to examine this assumption. Given that much UTx research has been performed in Sweden, a country where surrogacy is effectively although not currently explicitly forbidden, we do this through an analysis of the arguments underpinning a 2016 Swedish white paper which considered amending existing policy such that altruistic surrogacy arrangements would be permitted. By applying the white paper's arguments for a restrictive position on altruistic surrogacy to the case of UTx using living altruistic donors we find that such arguments, if they hold in the case of surrogacy, apply similarly to UTx. We thus suggest that, for reasons of consistency, a similar stance should be taken towards the moral and legal permissibility of these two practices.

Baby M Turns 30: The Law and Policy of Surrogate Motherhood.

This article marks the 30th anniversary of the Supreme Court of New Jersey's Baby M decision by offering a critical analysis of surrogacy policy in the United States. Despite fundamental changes in both science and society since the case was decided, state courts and legislatures remain bitterly divided on the legality of surrogacy. In arguing for a more uniform, permissive legal posture toward surrogacy, the article addresses five central debates in the surrogacy literature. First, should the legal system accommodate those seeking conception through surrogacy, or should it prohibit such arrangements? Second, if surrogacy is permitted, what steps can be taken to minimize the potential exploitation of women who are willing to rent their wombs for income? Third, what criteria should govern the eligibility to serve as a surrogate mother and an intended parent? Fourth, what principle(s) should serve as the basis for determining the parentage of children born through surrogacy? Fifth, is regulatory uniformity in the surrogacy realm desirable? Is it achievable? The article concludes that courts and legislatures should accept the validity of surrogacy contracts, determine parentage according to intent, and identify transparent criteria for the eligibility of both surrogates and intended parents.