Surrogacy Arrangements Research Articles

Division of Care and Leave Arrangements in Gay Father Families in Sweden

IntroductionThis study analyses the division of parental leave and the income development in gay father families through surrogacy in Sweden, seen as one of the most family-friendly and egalitarian countries in the world.MethodsBased on longitudinal population register data, descriptive and bivariate regression models are estimated to analyse the parental leave uptake and income development of married partners becoming (first-time) parents in 2006–2015 (in total 53 couples). Retrospective in-depth interviews with 23 gay men in 12 couples, conducted in 2010 and 2018 are analysed thematically to study how fathers discussed and decided how to divide the leave.ResultsThe process of establishing legal parenthood delays the fathers’ access to reimbursed parental leave. Despite this, the fathers’ earnings were not considerably affected by the addition of a child to the family. Once the fathers had access to reimbursed leave, they generally shared this equally, with a tendency for the genetic father to take leave first and for a slightly longer period.ConclusionsThe fathers becoming parents via surrogacy arrangements are a well-off group, able to counter the negative financial consequences of becoming parents. Swedish family policies enable parents to share the leave equally. Less impacted by gender and parenthood norms creating difference between parents, gay father families are in a better position to realise ideals of shared care and sameness.Policy ImplicationsThe delayed access to reimbursed parental leave structures the ability of gay couples to become parents and contributes to class inequalities in the transition to parenthood.

Attitudes Toward Transnational Surrogacy, Ambivalent Sexism, and Views on Financial Allocation

In this exploratory study, we examine perceptions of commercial surrogacy and how these perceptions might influence decisions about how to allocate financial resources to those involved in the surrogacy market in a U.S. sample. We surveyed 340 participants through MTurk and students enrolled in psychology courses at Muhlenberg College on their perceptions of surrogacy and their decisions on how to allocate compensation. Findings indicate that the surrogate’s marital status influenced financial allocations to parties involved in the surrogacy arrangement, and men and those high in hostile sexist attitudes offered less money to surrogates and more money to doctors. These findings support previous studies showing how ambivalent sexism influences attitudes toward reproduction.

Negotiating 'Surrogate Mothering' and Women's Freedom.

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 (Regulation) Act, 2021, has received thePresident'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'.

Harvesting Life, Mining Death: Adoption, Surrogacy and Forensics across Borders

Transnational adoption and surrogacy make explicit the relations between war, structural violence and crisis, and global shifts in the organization and governance of reproduction. This article focuses on the interrelatedness of vitality and death, and the nexus between biopolitics and necropolitics, through an analysis of adoption and surrogacy. It reinscribes the transnational circulation and exchange of persons, substance and bodily capacities within the logics of multiple genealogies of war, violence, and extraction in the globalized borderlands between Guatemala and Mexico. The article charts the simultaneous demise of transnational adoptions in Guatemala and growth in surrogacy arrangements in the southern Mexican state of Tabasco, as well as the inception of oocyte harvesting for in vitro fertilization (IVF) in reproductive medicine providers in Guatemala City. The article then tracks forms of expertise and technical infrastructure across national borders and domains of knowledge and practice. It shows the proximity between reproductive medicine and forensic science evident in DNA analysis used in forensic anthropology to document human rights violations, but also offered as commercial services in an expanding reproductive medicine sector. This configuration of biolabor encompasses the extractive practices tied to reproductive medicine and forensics, as persons, bodily substance, and, increasingly, bioinformation transverse contexts, jurisdictions, and social and racial formations.

Law as Anti-Kinship: The Colonial Present in Global Surrogacy

Law and regulation are often seen as the panacea for the ills of science and markets: regulation minimizes risks by setting out clear rules, calls out abuses when those rules are not obeyed, and disciplines actors, institutions, and states to behave according to collectively agreed upon principles. In this article I challenge this liberal narrative of regulation by looking at how cross-border surrogacy arrangements are currently debated in private international law. I first demonstrate that technosciences are intimately linked to regulatory and legal frameworks. Here, recombinant knowledge has led to new formations of legal parenthood while obscuring other forms of kinship in quite paradoxical ways. Second, the liberal story of law and regulation erodes the history and political economy in which law has come to represent itself as universal and moveable. I examine how a gendered, racialized, and (post)colonial context of global fertility chains is lost in the legal instruments designed to protect the people involved in international surrogacy arrangements, preferring instead neoliberal forms of kinship. Finally, the liberal story of law also embraces the story of individualism. I show the conflicts that arise when such individualist forms of law are transplanted to non-individualist contexts, both in non-Western and Western contexts. I argue that by subjecting non-liberal others (across the Global North-South divide) to bioethical frameworks that intervene in kinship ontologies, private international law runs the risk of prolonging the logic of colonial and imperial thinking.

DIFFERENT LEGAL APPROACHES TO THE REGULATION OF SURROGACY IN UKRAINE AND BALTIC STATES

The paper examines legal approaches to regulating surrogacy in Ukraine, Lithuania, Latvia, and Estonia. The research was successfully initiated by highlighting empirical data demonstrating an increase in the number of infertile couples and, accordingly, the growth of the surrogacy market, which confirms the relevance of this issue. The authors clarified the content of the concepts of “assisted reproductive technologies” and “surrogate mother”. The historical aspects of the emergence and development of surrogacy globally and the attempts at its legal regulation at the state level have been revealed. The authors reviewed the main provisions of legal acts regulating surrogacy in Ukraine, Lithuania, Latvia, and Estonia. It was found that the legal regulation of surrogacy was consolidated in Ukraine earlier than in the Baltic countries. In Ukraine, surrogacy is allowed only for spouses for medical reasons, the list of which is enshrined in legislative acts, while foreigners have access to such services. It was found that altruistic and commercial surrogacy is prohibited in Lithuania. The legal provisions make it impossible to enter a surrogate agreement, even if it could be concluded. It has been established that surrogacy is not directly regarded as a crime under the criminal law of Lithuania. It is emphasized that commercial surrogacy is indirectly prohibited in Latvia, but heterosexual couples and infertile single women can seek medical help for procreation. In Latvia, the criminal legislation does not directly provide for the criminal liability for surrogacy arrangements. It is determined that the Estonian legislation provides married and single women with access to medical care if there are medical indications for reproductive treatment but provides for criminal liability for gestational surrogacy. It is concluded that the legislation of Ukraine is favorable for surrogacy. In contrast, in the Baltic countries, the opposite approach is due to such risks as human trafficking, exploitation of women, commercialization of children, etc.

Surrogacy: beyond the commercial/altruistic distinction

In this article, I critique the commonly accepted distinction between commercial and altruistic surrogacy arrangements. The moral legitimacy of surrogacy, I claim, does not hinge on whether it is paid...

The Human Rights Implications of Not-for-Profit Surrogacy Organizations in Cross-Border Commercial Surrogacy: An Australian Case Study

Cross-border surrogacy is a global industry that offers intended parents options for family formation by providing foreign surrogate mothers remuneration, directly or via an intermediary, in excess of their actual out-of-pocket expenses. It is a multi-million-dollar business with no international regulation.1 In most countries, limited domestic regulation or oversight is in place. Many countries − such as Australia, the United Kingdom, New Zealand, Canada, Hong Kong and South Africa − only permit altruistic surrogacy, while Germany and France ban surrogacy entirely.2 Fully legalized commercial surrogacy is the model followed in some states in the United States of America (USA), as well as Georgia and Ukraine.3 This unregulated cross-border market has produced a lucrative business, with surrogacy arrangements growing by nearly 1,000 per cent between 2006 and 2010.4 The for-profit surrogacy sector has expanded and fertility not-for-profit organizations have also entered the market.5

What makes a Parent? Challenging the Importance of a Genetic Link for Legal Parenthood in International Surrogacy Arrangements

Abstract This article advocates for consistent application of the best interests of children in recognition of legal parenthood of children born out of international surrogacy arrangements (ISAs) and opposes its differential application to surrogate children who do not have a genetic link to their intending parents (IPs). Owing to the lack of European consensus and specialized legal instruments regulating recognition of legal parenthood in ISAs, the European Court of Human Rights (ECtHR/the Court) via interpretation of Article 8 obligates prohibitionist home states of IPs to recognize legal parenthood coming out of such international arrangements only in instances where there is genetic link with one or both IPs. This leaves surrogate children with no genetic link to their IPs with no benefits stemming out of recognition of legal parentage often leaving them parentless and stateless. This work challenges the necessity for such limitations through analysis of two ECtHR cases, the Mennesson v. France and the Paradiso and Campanelli v. Italy, where differential consideration of the best interests of children was based on presence or lack of genetic link respectively. It concludes that non-recognition of parenthood is a disproportionate measure to protect legitimate aims of prohibitionist home states and advocates for expansion of their implied positive obligations to protect the best interests of surrogate children with no genetic link to their IPs.

Who are my parents? Determining parenthood of surrogate children under Chinese law

ABSTRACT The underground domestic surrogacy market is an open secret in China and many rich Chinese people have had their own children by using overseas surrogacy services. Although the Chinese national legislature has not expressed its legal position with respect to the legality of surrogacy, courts have taken an increasing number of surrogacy disputes in the past two decades, a substantial portion of which dispute over parenthood of surrogate children. The question ‘who are my parents’ requires a legal answer; otherwise, surrogate children will be left in legal limbo in terms of their parentage and sometimes nationality as well. Given its theoretical and practical significance, this article systematically analyses the issue of parenthood of surrogacy children under Chinese law and its implications for the issue of the legality of surrogacy. It finds that Chinese law, which accepts a three-parent model in certain circumstances, has recently creatively developed a dual approach to solving this legal question: the dominant biological connection test and the supplementary test of ‘constructive parenthood based on the stepparent-stepchild relationship’, the latter enabling courts to grant parenthood to a nonbiological intended parent. After assessing the dual approach, it further argues that the approach results in a backdoor acceptance of surrogacy arrangements and Chinese law, therefore, should face up to the increasing demand by infertile families for surrogacy and draw a clear line between lawful and unlawful surrogacy arrangements in accordance with the prevailing ethical views, the newly introduced three-child policy, and the relevant policies concerning woman and minor protection.

Surrogacy Arrangements have become an Increasingly Popular Alternative for Childless Couples and Singles: A Closure Look at the UK Law Regime of Surrogacy

Surrogacy Arrangements have become an Increasingly Popular Alternative for Childless Couples and Singles: A Closure Look at the UK Law Regime of Surrogacy

The Luo, et al. v. Chen Case on Surrogacy

1. Surrogacy arrangements may occur whether or not the surrogate provides her own genetic material. Surrogacy has given rise to uncertainties in the law on parentage in a domestic context, i.e., identifying the parents of the children born under surrogacy. States are divided on whether surrogacy is legally valid and who should be the legal parents, on the grounds of public policy, fundamental human rights of the child, rights of the surrogate mother, and rights to give birth of the intending parents. Legal parentage is closely related to but separate from the attitude to surrogacy of a State. States may be roughly classified into three categories. 2. First, in States where surrogacy arrangements are void ab initio and unenforceable under specific law or under general law, the general family law on legal parentage applies. The surrogate mother will be considered the legal mother and her husband will be presumed to...

The Racializing Womb: Surrogacy and Epigenetic Kinship

In gestational surrogacy arrangements, the womb is often figured as a holding environment that brings the child of commissioning parents to fruition but does not shape fetal identity. This article probes the racial imaginary of such a figuration—what I term the “nonracializing womb”—where gestation is seen as peripheral to racial transmission. Drawing on feminist science studies frameworks and data from interviews with parents who commissioned surrogates, this article traces the cultural politics of the nonracializing womb, positioning it as an index for broader understandings of race, reproductive labor, and kinship that hinge on nuclear and biogenetic forms. It then problematizes this figure of gestation by engaging emerging research on environmental epigenetics, which offers a lively model of pregnancy as shaping fetal biology, blurring the lines between surrogate and fetus. I argue that epigenetics offers a resource to reimagine gestation as a racializing process, by theorizing race not as solely genetic, but as relational, socio-environmental, and forged through distributed kinship lineages.

Recognising What is Lost in Reproductive Harms: Whittington Hospital NHS Trust v XX

AbstractWhittington Hospital NHS Trust v XX (XX) turned on whether the courts should fund the creation of children for a woman negligently denied the ability to do so herself by awarding her the cost of pursuing surrogacy via a commercial service in California. The key issues were whether these costs should include surrogacy using donor eggs, and whether it was right for the court to agree to fund actions which, if undertaken in England, would arguably be in violation of the Surrogacy Arrangements Act 1985. While the subject matter of the decision is narrow, the decision in XX has broader implications about the relevance of public policy to damages awards, both in clinical negligence itself and more generally. It also raises important questions about how the law does and should value lost reproductive capacity.

Surrogate Born Children’s Access to Information About Their Origins

Abstract This article considers the rights of surrogate born children to access information about their origins. Proposals for reform in the UK and Ireland are discussed, and it is argued that there needs to be a greater consideration of children’s rights law in this context. In particular, it is observed that restricting children’s access to identifying information until they are 18 years old must be reconsidered. There is a myriad of reasons for this, not least obligations under international human rights law, as well as evidence from research which demonstrates that children should be informed about their origins and birth story at a young age. The introduction of a minimum age limit under the age of 18 years, to access identifying information, as is evident in some jurisdictions, is considered. Children’s access to information in the context of international surrogacy arrangements is also discussed. It is concluded that legislators should seek to take a children’s rights approach, and facilitate children in accessing information about their origins during their childhood.

‘Womb for work' experiences of Thai women and gestational surrogacy practice in Thailand

Risks to gestational surrogates became a concern for public health. In commercial gestational surrogacy arrangements, gestational surrogates are commonly recruited from low- to middle-income countries. Thailand is well known as a surrogacy hub in this regard. However, little is known concerning Thai surrogacy practice and the risks that Thai gestational surrogates experiences. The semi-structured interviews with fifteen Thai women who had been gestational surrogates were conducted over the telephone in Thai between March and May 2020 and lasted approximately 30 minutes. Thematic analysis was applied to analyse the translated interviews. The findings indicated that ‘womb for work’ was perceived as a surrogacy career among Thai women. ‘Womb for work’ was defined as a superordinate theme that consisted of three subthemes: (i) gestational surrogacy arrangements in Thailand; (ii) the business model of gestational surrogacy arrangements in Thailand; and (iii) risk experiences of gestational surrogates. Clear deficiencies in surrogacy practice and regulations were identified, which put gestational surrogates at risk, including those associated with embryo transfer, transnational gestational surrogacy, and unsupported pregnancies. This study shows the urgent need to introduce regulations to protect women’s health transnationally in this domain more effectively.

Commercial Surrogacy with Special Reference to Capabilities Approach

In Indian culture, ‘motherhood’ connotes a sine qua non of marriage. Surrogacy arrangements have seen an increased demand amongst childless couples in the recent years. Notwithstanding that, many countries still don’t have specific legislations to deal with surrogacy arrangements. India is one such country which has failed to come up with a good legislation to regulate surrogacy. In the year 2019, a bill was passed to curb commercial surrogacy because it is believed that many impoverished women are exploited in the name of surrogacy. The legislature, instead of regulating commercial surrogacy, has banned it. The government is dictating its ownership over a woman’s bodily autonomy and right to privacy. The writing enlightens how the rights of a person shouldn’t be curtailed because the government has failed to regulate it. Rights become pointless if the ‘environment’ to exercise such rights is seized.

Compensation for the Cost of a Surrogacy Arrangement in Personal Injury Cases

A woman who has been rendered infertile by a defendant’s wrong may wish to obtain damages for the cost of becoming a parent through a surrogacy arrangement. Such a claim, which has yet to be brought before an Australian court, would raise two partially overlapping issues under Australian law. First, the claim must satisfy the general requirement that a person who has suffered personal injury can only recover expenses that are necessary and reasonable. Secondly, the laws of the Australian jurisdictions except the Northern Territory regulate surrogacy arrangements and criminalise commercial surrogacy arrangements (where the surrogate mother is promised a fee in addition to the reimbursement of expenses). This regulation may impact upon the recoverability of the cost of a surrogacy arrangement through the concepts of coherence of the law and public policy. The most complex scenario, but also the most likely to arise in Australian personal injury litigation, is that of a plaintiff who lives in Australia and wishes to enter into a commercial surrogacy arrangement in a foreign country in which this is lawful. This article investigates the legal issues that may arise if a claim for the cost of a surrogacy arrangement is brought before an Australian court.

The LGBT community in Israel: access to the surrogacy procedure and legal right for equality, family life and parenthood

In Israel’s legal system, equality is a fundamental principle. LGBT people in Israel suffer from discrimination due to their sexual orientation and their right to equality, parenting, and family life is impaired. Regarding the surrogacy procedure, the Supreme Court has unequivocally stated that the relevant laws discriminate against LGBT people and their fundamental rights when compared to heterosexual people. The main problem is that the statutes block the access to the surrogacy procedure of single men and male couples, harming their right to equality, right to a family life and parenting. The article suggests adopting the minority ruling of Justice Uzi Vogelman in HCJ 781/15 and declaring the nullity of the sections in the laws that discriminate against single men and male couples. This remedy is a lawful and operative solution for the inequality rooted in the surrogacy arrangements towards homosexuals that want to establish a family and become parents. The expectation from the legislature to amend the law is unrealistic, due to the political construction of the Israeli Knesset (parliament). An innovative approach for the amendment of the inequality towards LGBT people should be the nullity of the discriminating sections of the law.

Mapping transnational commercial surrogacy arrangements in South and Southeast Asia.

Transnational commercial surrogacy is a form of medical tourism undertaken by intended parents in an attempt to seek surrogates in other countries. Most intended parents are from developed countries and seek their surrogates from developing countries, predominantly from South and Southeast Asia. This arrangement led to the establishment of surrogacy businesses in South and Southeast Asia, in countries such as India and Thailand. Subsequently, the business was banned in these countries, which led to a trend of moving it to neighbouring countries where there were no regulations or restrictions. This paper maps the movement of the industry and calls for attention to re-consider or re-frame commercial surrogacy in an international framework.