Gestación por sustitución ¿y Derecho penal? / [Surrogacy and criminal law?]

La gestación por sustitución es una vía para poder tener descendencia que, en nuestro país no es aceptada y ello nos ha llevado a un alto turismo reproductivo cuyas consecuencias derivan en una inseguridad jurídica inaceptable en un Estado Social y Democrático como el nuestro; inseguridad que alcanza incluso al ordenamiento penal. Por ello, se hace necesario una aproximación a este fenómeno, sus consecuencias y posibles soluciones. (AU)

Surrogacy is a way to have offspring that is not accepted in our country and this has led to a high level of reproductive tourism whose consequences lead to unacceptable legal uncertainty in a Social and Democratic State like ours; insecurity that even reaches the penal system. Therefore, an approach to this phenomenon, its consequences and possible solutions is necessary. (AU)

New York State Creates New Governance of Commercial Gestational Surrogacy.

United States law recognizes adult reproductive liberty and many states view surrogacy services through that lens. During the COVID-19 pandemic in March, 2020, New York State enacted the Child-Parent Surrogacy Act (CPSA) into law, after feminists and their allies had caused its defeat in 2019. Just before approval of the CPSA, a group of legislators introduced the Alternative Surrogacy Bill (ASB). This article is a case study that examines how the CPSA and not the ASB became law, examining surrogate rights, the best interests of the child, and the ethical issues related to adult donor-conceived and surrogacy born children's rights to information about their ancestry.

Reexamining the Ethics of Human Germline Editing in the Wake of Scandal.

In November 2018, the announcement that genetically edited human embryos had been used for reproductive purposes caused international uproar; many observers argued that editing the human germline was unethical, particularly given the early stage of the science and the absence of appropriate oversight. We provide an overview of the implications of these events, focusing on the relevant ethical considerations for physicians addressing patient questions and concerns. The editing of the human germline for reproductive purposes should be understood against an historic backdrop of clinical research in assisted reproduction, as well as other exemplars of translational investigation. An important question raised by our growing capacity to genetically alter human embryos is how to understand the implicit social contract between science and society. To ensure that translational research continues to enjoy the historic trust placed in scientists and research organizations, it is critical that scientific and health care institutions proactively engage governments, patient advocacy organizations, and the general public in the formation of policies that guide gene editing.

Procreation machines: Ectogenesis as reproductive enhancement, proper medicine or a step towards posthumanism?

Full ectogenesis as the complete externalization of human reproduction by bypassing the bodily processes of gestation and childbirth can be considered the culmination of genetic and reproductive technologies. Despite its still being a hypothetical scenario, it has been discussed for decades as the ultimate means to liberate women from their reproductive tasks in society and hence finally end fundamental gender injustices generally. In the debate about the application of artificial wombs to achieve gender equality, one aspect is barely mentioned but is of crucial relevance from a medical-ethical perspective: whether and how could full ectogenesis be justified as a proper use of medicine? After characterizing the technology as a special form of human enhancement and as an extension of medical practice that goes beyond the traditional field of medicine, this paper critically assesses the theoretical possibilities of legitimizing this extension. We identify two ways of justification: either one argues that ectogenesis fulfils a proper goal of medicine (a justification we call pathologization), or one argues that the application of ectogenesis achieves a non-medical goal (which we call medicalization). Because it is important from a medical-ethical point of view to avoid an inappropriate instrumentalization or misuse of medicine and thus an undue medicalization of non-medical problems, a set of necessary conditions has to be met. It is doubtful whether full ectogenesis for non-medical purposes could fulfil these conditions. Rather, its comprehensive usage could be seen as a revolutionary modification of what it means to be human.

Abortion and Ectogenesis: Moral Compromise.

The contemporary philosophical literature on abortion primarily revolves around three seemingly intractable debates, concerning the (1) moral status of the fetus, (2) scope of women's rights and (3) moral relevance of the killing/letting die distinction. The possibility of ectogenesis-technology that would allow a fetus to develop outside of a gestational mother's womb-presents a unique opportunity for moral compromise. Here, I argue those opposed to abortion have a prima facie moral obligation to pursue ectogenesis technology and provide ectogenesis for disconnected fetuses as part of a moral compromise.

Gestation, equality and freedom: ectogenesis as a political perspective.

The benefits of full ectogenesis, that is, the gestation of human fetuses outside the maternal womb, for women ground many contemporary authors' arguments on the ethical desirability of this practice. In this paper, I present and assess two sets of arguments advanced in favour of ectogenesis: arguments stressing ectogenesis' equality-promoting potential and arguments stressing its freedom-promoting potential. I argue that although successfully grounding a positive case for ectogenesis, these arguments have limitations in terms of their reach and scope. Concerning their limited reach, I contend that ectogenesis will likely benefit a small subset of women and, arguably, not the group who most need to achieve equality and freedom. Concerning their limited scope, I contend that these defences do not pay sufficient attention to the context in which ectogenesis would be developed and that, as a result, they risk leaving the status quo unchanged. After providing examples of these limitations, I move to my proposal concerning the role of ectogenesis in promoting women's equality and freedom. This proposal builds on Silvia Federici's, Mariarosa Dalla Costa's and Selma James' readings of the international feminist campaign 'Wages for Housework'. It maintains that the political perspective and provocation that ectogenesis can advance should be considered and defended.

Artificial womb technology and clinical translation: Innovative treatment or medical research?

In 2017 and 2019, two research teams claimed 'proof of principle' for artificial womb technology (AWT). AWT has long been a subject of speculation in bioethical literature, with broad consensus that it is a welcome development. Despite this, little attention is afforded to more immediate ethical problems in the development of AWT, particularly as an alternative to neonatal intensive care. To start this conversation, I consider whether experimental AWT is innovative treatment or medical research. The research-treatment distinction, pervasive in regulation worldwide, is intended to isolate research activities and subject them to a greater degree of oversight. I argue that there is a tendency in the literature to conceptualize AWT for partial ectogenesis as innovative treatment. However, there are sufficiently serious ethical concerns with experimental AWT that mean that it must not be first used on humans on the basis that it is a 'beneficial treatment'. First, I outline the prospects for translation of AWT animal studies into treatment for human preterms. Second, I challenge the conceptualizations of experimental AWT as innovative treatment. It must be considered medical research to reflect the investigatory nature of the process and guarantee sufficient protections for subjects. Identifying that AWT is research is crucial in formulating further ethico-legal questions regarding the experimental use of AWT. Third, I demonstrate that clinical trials will be a necessary part of the clinical translation of AWT because of requirements laid out by regulators. I consider the justification for clinical trials and highlight some of the crucial ethical questions about the conditions under which they should proceed.

Recomendaciones para el estudio genético e inmunológico en la disfunción reproductiva / Recommendations regarding the genetic and immunological study of reproductive dysfunction

Varios miembros de diferentes asociaciones científicas y expertos de la reproducción han actualizado las recomendaciones de estudio genético e inmunológico en las parejas con disfunción en la reproducción con el fin de mejorar la asistencia sanitaria. El estudio se ha considerado altamente recomendable cuando la prueba diagnóstica es relevante para la toma de decisiones, moderada cuando estas han mostrado un resultado poco consistente y baja, cuando el beneficio de la prueba es incierto. Con la indicación de estas recomendaciones obtendremos una información relevante para el diagnóstico, pronóstico y tratamiento de la pareja con disfunción en la reproducción

In this article several members of diverse scientific associations and reproduction experts from Spain have updated different genetic and immunological procedure recommendations in couples affected by reproductive dysfunction with the goal of providing a set of useful guidelines for the clinic. The laboratory test has been considered as highly recommendable for making clinical decisions when the result of the diagnostic test is relevant, moderately recommendable when the results are of limited evidence because they are inconsistent, and low when the benefit of the test is uncertain. It is expected that these recommendations will provide some useful guidelines for the diagnosis, prognosis and treatment of couples presenting reproductive dysfunction

The Boundaries of Embryo Research: Extending the Fourteen-Day Rule : Australasian Association of Bioethics and Health Law John McPhee (Law) Student Essay Prize 2018.

The disciplines of ethics, science, and the law often conflict when it comes to determining the limits and boundaries of embryo research. Under current Australian law and regulations, and in various other jurisdictions, research conducted on the embryo in vitro is permitted up until day fourteen, after which, the embryo must be destroyed. Reproductive technology and associated research is rapidly advancing at a rate that contests current societal and ethical limits surrounding the treatment of the embryo. This has brought about the question of the adequacy of the fourteen-day rule and whether it is necessary for it be reconsidered and reformed. This paper will highlight some of the tensions that exist in ethics, science, and the law in relation to the extension of the rule. It will be concluded that any move to extend the rule must be accompanied by close consultation with the public as the ultimate stakeholders in how the future of reproductive technology is created, constructed, and contested.

As particularidades do regime do contrato de gestação de substituição no direito português e o Acórdão do Tribunal Constitucional nº 225/20181 / Las particularidades del contrato de gestación por sustitución en la ley portuguesa y la sentencia nº 225/2018 del Tribunal Constitucional / The new contract of gestational surrogacy in Portuguese Law under the Portuguese Constitutional Court Perspective / Les particularitats del contracte de gestació per substitució en la llei portuguesa i la sentencia nº 225/2018 del Tribunal Constitucional

O Tribunal Constitucional português veio recentemente pronunciar-se no sentido da inconstitucionalidade (parcial) do regime da gestação de substituição introduzido na Lei de Procriação Medicamente Assistida em Agosto de 2016. A Lei n.º 25/2016, de 22 de Agosto, veio admitir a gestação de substituição num contexto contratual, enquanto objecto de um negócio jurídico bilateral, necessariamente gratuito, invertendo o sentido da lei que, até então, proibia a celebração de contratos de "maternidade de substituição" e os cominava com a nulidade. Pretendemos neste texto analisar o regime previsto para este contrato, à luz da posição assumida pelo Tribunal Constitucional no acórdão n.º 225/2018, de 24 de Abril de 2018

El Tribunal Constitucional portugués declaró recientemente la inconstitucionalidad (parcial) del régimen de gestación por sustitución introducido en la Ley de Reproducción Asistida en agosto de 2016. La Ley nº 25/2016, de 22 de agosto, admitió la gestación por sustitución en un contexto contractual, como objeto de un negocio jurídico bilateral, necesariamente gratuito, invirtiendo el sentido de la ley que, hasta entonces, prohibía la celebración de contratos de "maternidad por sustitución" y los declaraba nulos. En este texto se analiza de una forma critica el régimen de este contrato, en el marco de la posición asumida por el Tribunal Constitucional en la sentencia nº 225/2018, del 24 de abril de 2018

The Portuguese Constitutional Court has just declared the unconstitutionality of the main rules of the Gestational Surrogacy Act. Surrogate motherhood had been admitted in Portugal in August 2016 through formal and altruistic legally binding contracts. It is our purpose to identify the major problems raised by the Portuguese legal framework of surrogate motherhood concerning with the contract requirements and the parties consent in the light of the Constitutional Court position, assumed on Sentence no. 225/2018, of 24 April

El Tribunal Constitucional portuguès ha declarat recentement la inconstitucionalitat (parcial) del règim de gestació per substitució introduït en la Llei de Reproducció Assistida a l'agost de 2016. La Llei nº 25/2016, de 22 d'agost, admetia la gestació per substitució en un context contractual, com a objecte d'un negoci jurídic bilateral, necessàriament gratuït, invertint el sentit de la llei que, fins llavors, prohibia la celebració de contractes de "maternitat per substitució" i els declarava nuls. En aquest text s'analitza d'una forma critica el règim d'aquest contracte, en el marc de la posició assumida pel Tribunal Constitucional en la sentencia nº 225/2018, del 24 d'abril de 2018

Lesbian motherhood and mitochondrial replacement techniques: reproductive freedom and genetic kinship.

In this paper, we argue that lesbian couples who wish to have children who are genetically related to both of them should be allowed access to mitochondrial replacement techniques (MRTs). First, we provide a brief explanation of mitochondrial diseases and MRTs. We then present the reasons why MRTs are not, by nature, therapeutic. The upshot of the view that MRTs are non-therapeutic techniques is that their therapeutic potential cannot be invoked for restricting their use only to those cases where a mitochondrial DNA disease could be 'cured'. We then argue that a positive case for MRTs is justified by an appeal to reproductive freedom, and that the criteria to access these techniques should hence be extended to include lesbian couples who wish to share genetic parenthood. Finally, we consider a potential objection to our argument: that the desire to have genetically related kin is not a morally sufficient reason to allow lesbian couples to access MRTs.

Scientific and Ethical Issues in Mitochondrial Donation.

The development of any novel reproductive technology involving manipulation of human embryos is almost inevitably going to be controversial and evoke sincerely held, but diametrically opposing views. The plethora of scientific, ethical and legal issues that surround the clinical use of such techniques fuels this divergence of opinion. During the policy change that was required to allow the use of mitochondrial donation in the UK, many of these issues were intensely scrutinised by a variety of people and in multiple contexts. This extensive process resulted in the publication of several reports that informed the recommendations made to government. We have been intrinsically involved in the development of mitochondrial donation, from refining the basic technique for use in human embryos through to clinical service delivery, and have taken the opportunity in this article to offer our own perspective on the issues it raises.

Why Human Germline Editing is More Problematic than Selecting Between Embryos: Ethically Considering Intergenerational Relationships.

Do we have a moral obligation to genetically cure embryos rather than selecting between them? Such an obligation would be an ethical argument for human germline gene editing (hGGE) to avoid the inheritance of genetic conditions instead of using pre-implantation genetic diagnosis (PGD). In this article, the intuition that we do have such a moral obligation is critically evaluated. The article first develops a theoretical framework for discussing the ethical questions of hGGE. This framework is based on an exploration of the phenomenology of the germline, from both biological and philosophical points of view. It interprets the germline as an embodied intergenerational relationship that carries meanings for the parents and for the children-to-be. It relates them to previous family generations, and to their own children. Hence, the germline is a phenomenologically much richer concept than just the line of cells that carry the inheritable genetic information. Against this background, selection is compared with editing and a key moral difference is identified: editing is in effect an act of co-constructing the genome, which necessarily assumes a wider range of responsibilities that include those parts that are left unedited. Introducing hGGE into societies would hence significantly affect and change the moral structure of the intergenerational relationships. Selective implantation, on the other hand (in the context of PGD), is based on a moral choice in favour of the embryo which is to be unaffected by a disease or disability that causes suffering, rather than selecting knowingly the affected one. The claim that hGGE is in the best interests of the child-to-be counterfactually assumes the presence of a patient who has an interest in being cured. The embryo (a potential future patient) is, however, brought into existence by the same act that is also the treatment. The future children who would result from treatment by hGGE may rather have an interest in not having been treated by hGGE, since it makes the intergenerational relationships more complicated and burdensome. The question 'Is hGGE justified, or even an obligation?' is answered with a No.

Engendering Harm: A Critique of Sex Selection For "Family Balancing".

The most benign rationale for sex selection is deemed to be "family balancing." On this view, provided the sex distribution of an existing offspring group is "unbalanced," one may legitimately use reproductive technologies to select the sex of the next child. I present four novel concerns with granting "family balancing" as a justification for sex selection: (a) families or family subsets should not be subject to medicalization; (b) sex selection for "family balancing" entrenches heteronormativity, inflicting harm in at least three specific ways; (c) the logic of affirmative action is appropriated; (d) the moral mandate of reproductive autonomy is misused. I conclude that the harms caused by family balancing are sufficiently substantive to override any claim arising from a supposed right to sex selection as an instantiation of procreative autonomy.

Genome editing and assisted reproduction: curing embryos, society or prospective parents?

This paper explores the ethics of introducing genome-editing technologies as a new reproductive option. In particular, it focuses on whether genome editing can be considered a morally valuable alternative to preimplantation genetic diagnosis (PGD). Two arguments against the use of genome editing in reproduction are analysed, namely safety concerns and germline modification. These arguments are then contrasted with arguments in favour of genome editing, in particular with the argument of the child's welfare and the argument of parental reproductive autonomy. In addition to these two arguments, genome editing could be considered as a worthy alternative to PGD as it may not be subjected to some of the moral critiques moved against this technology. Even if these arguments offer sound reasons in favour of introducing genome editing as a new reproductive option, I conclude that these benefits should be balanced against other considerations. More specifically, I maintain that concerns regarding the equality of access to assisted reproduction and the allocation of scarce resources should be addressed prior to the adoption of genome editing as a new reproductive option.

Argumentos para la necesaria regulación de la gestación por sustitución / Arguments for the need to regulate surrogacy

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