Surrogacy Law Research Articles

Bioethics in the Context of Law-Making and Law Enforcement (Surrogate Motherhood)

The article is devoted to one of the most topical issues for the Russian legal order, namely: the regulation of surrogacy. This topic, unfortunately, is not sufficiently covered in the scientific and legal literature due to its novelty and a complex nature of bioethical problems.This article provides an overview of normative legal acts regulating surrogacy, Russian and international law enforcement practice in this area, as well as legal approaches existing in other legal orders. Particular attention is paid to the latest trends and approaches associated with the adoption of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017, “On the application of legislation by courts in cases related to the establishment of the origin of children.” At the same time, attention is paid to both public and private law aspects of the phenomenon in question.

A care ethics approach to the Gender Kidney Donation Gap.

Many studies have shown that women are more likely than men to be living kidney donors, and the discrepancy is particularly marked in heterosexual couples: wives are more likely than husbands to donate a kidney to their spouse. This 'Gender Kidney Donation Gap' can be understood in terms of Carol Gilligan's claims about gender differences in ethical decision-making style, making it appropriate to analyse responses to this imbalance using an ethic of care. This article centres the vast majority of living donors, those who donate in the context of a significant pre-existing relationship. A cost-neutral approach is unfair on donors who make society richer and healthier by helping a loved one. However, models of kidney sale fail to offer an acceptable alternative, either (a) compelling donors to sell into a pool where they do not know the recipient or (b) allowing affluent individuals unfair access to kidneys. Drawing on surrogacy law in England and Wales, a model of compensation is proposed that includes a range of non-financial benefits. This option celebrates donation and expresses gratitude to all donors while avoiding the pitfalls of the marketplace, with an emphasis on fair treatment of donors. Nevertheless, if more generous treatment led to a 10% increase in directed donation, then it would be equivalent to doubling 'altruistic' stranger donations. As long as the Gender Kidney Donation Gap persists, the best response is to minimise the discomfort and disruption caused to donors by their profound act of kindness.

The Recent Trend of Surrogacy Laws in the U.S. - A Change of Regulatory Regime for Surrogacy in the UPA 2017 -

The Recent Trend of Surrogacy Laws in the U.S. - A Change of Regulatory Regime for Surrogacy in the UPA 2017 -

Who gets to decide for the older patient with a limited decision-making capacity: a review of surrogacy laws in the European Union.

Family members of older incompetent patients are increasingly playing an essential role in the decision-making process relating to medical treatment. Furthermore, rights of patients and carers and the extent of their legal involvement vary widely across the European Union. Starting with an illustrative case within the Italian legal framework, this review focuses on statutory laws in the European Union to analyse the role and the rights of surrogates on behalf of older incompetent patients. The authors have identified two main essential areas of surrogate's law in Europe, in the absence of the advance directives: the role of family members automatically accepted as surrogates by law and a legal representative appointed by a court.

Scientific Knowledge and Legislative Drafting: Focus on Surrogacy Laws

This article discusses how sensitive bioethical issues are addressed in legislation, using as a starting point the analysis of a corpus of normative texts relating to Assisted Reproduction Technologies (ARTs), and in particular surrogacy, enacted in various English-speaking countries. In the investigation, special special attention is given to the re-elaboration and presentation of scientific knowledge in legal discourse with a view to detecting any possible slant or changes, and the reasons thereof. Another important object of investigation is the redefinition of certain well established categories of kinship because of the disruptive effects of biomediacal advances, and ARTs in particular, on family-based social relations. The analysis will focus on legal definitions, which are crucial in this domain considering that advances in the modern technosciences have brought about the need to categorize and name new medical practices and the situations they contribute to bringing about. The focus will be on how definitions are used in normative texts, functioning as initiators of a dynamic process generating discourses that acquire their meaning in the social and communicative contexts they are embedded in. Special attention will be devoted to the way in which specialised scientific, and especially medical, terminology and concepts, are dealt with in bioethically relevant legal discourse.

Surrogacy legislation remains complex and unsatisfactory.

The UK Surrogacy Agreement Act came into force in 1985, the same year as the first known UK surrogacy birth. Three decades later, the Surrogacy Agreement remains legally unenforceable in the UK. The Human Fertilisation and Embryology Act (HFEA) 2008 section 33 dictates that the surrogate is the legal mother until the court grants a parental order transferring parental rights to the intended parents. Parental order is granted only in limited conditions: the intended parents must domicile in the UK; be in a proven long-term relationship, partnership or marriage; one or more parent must be genetically related to the child; and most controversially, surrogates must be paid only ‘reasonable expenses’. Surrogacy laws struggle to keep pace with changing social attitudes, growing demand for surrogacy, and ultra-dynamic family structures. Within the past decade, the HFEA 2008 part 3 gave same sex and unmarried couples the same legal rights as married heterosexual couples in applying for parental orders. The legal definition of motherhood was successfully challenged in the Irish High Court and the intended mother's name was added to the birth certificate (R and Another v An TArd Charaitheoir and Ors). The recent Law Commission 13 Programme of Reform Public Consultation included Surrogacy. Issues reviewed included: (1) Single Parenting – currently the UK courts have no power to grant parental orders to single parents although there has been a recent High Court judgement ruling that was incompatible with article 14 of the European Convention (Re Z [A Child] [No 2] [2016] EWHC 1191 [Fam]); (2) The Birth Certificate – in the UK two parents are registered but they do not have to be the biological parents (Birth and Death Registration Act 1953). More than half a century since this act, the modern family structure has changed and, limiting registration to two parents may not reflect the actual parenting structure. Arguments have supported adding a third ‘parent’ if they were intimately involved in their creation (e.g. mitochondrial replacement). There are different rules of registration for parents in marriage or civil partnership, requiring re-registration if the parents marry later; (3) Parental Order restrictions – include that one or more parent must be genetically related to the child; (4) Surrogate Agreements – in the UK parental orders are only granted after birth, unlike the USA where the Uniform Parental Act 2002 allows states’ federal guidelines and legislation to transfer parental rights before delivery; (5) Maternal and Paternal Rights – the surrogate remains the legal mother with full responsibility until the parental order is granted. In overseas surrogacy the child may be born stateless, as the intended mother is not considered the ‘legal’ mother under either UK or overseas legislation. English law may not automatically recognise a foreign birth certificate (RE X and Y [Foreign Surrogacy]). This is curious as UK legislation dictates that the surrogate's husband or civil partner is the ‘legal’ father unless he does not consent. With the increase in surrogacy, the legal situation urgently needs clarification, with the paramount focus being the best interests of the child. None declared. Completed disclosure of interests form available to view online as supporting information. Please note: The publisher is not responsible for the content or functionality of any supporting information supplied by the authors. Any queries (other than missing content) should be directed to the corresponding author for the article.

The Bun's in the Oven, Now What?: How Pre-Birth Orders Promote Clarity in Surrogacy Law

Confounding legal scholars and practitioners alike, surrogacy law represents a disorganized patchwork of ideals that offers no clear answer in parentage disputes. While some states convey their approval by statute or case law, many states convey their distaste for the practice of surrogacy in the same manner. Then again, a handful of states remain silent about whether surrogacy is considered lawful or patently illegal. By surveying surrogacy laws, and the lack thereof, from the fifty states and the District of Columbia, this article formulates a solution to determine legal parentage in surrogacy arrangements — pre-birth orders. Per the Full Faith and Credit Clause of the U.S. Constitution, pre-birth orders provide a legitimate, enforceable judgment that declares the intended parents in a surrogacy arrangement as a child’s legal parents. Since courts are constitutionally required to honor orders made in other states, pre-birth orders provide family law practitioners and prospective parents with a method to navigate conflict of laws when prospective parents cross state borders. Without advocating that all states should permit surrogacy to take place, this article suggests a requirement for the states legalizing surrogacy to issue pre-birth orders and for all states to recognize pre-birth orders.

International Surrogacy and Parenthood in New Zealand: Crossing Geographical, Legal and Biological Borders

Surrogacy is an increasingly common form of family formation. In New Zealand legal regulation of surrogacy has not kept pace with practice. Introduced by two Thai-New Zealand commercial surrogacy cases, this article discusses some of the considerations that should be taken into account in any reconsideration of New Zealand surrogacy laws. One case demonstrates the legal pathway walked by New Zealand intended parents when things go as planned. The other case demonstrates how badly surrogacy arrangements can go wrong. Together, the cases highlight legal and policy issues that need greater exploration: misalignment between immigration policy and family law; the inappropriateness of the intercountry adoption rules for regulating international surrogacy; the ambiguous role that genetic links play in the legal process; and the incongruence between familial relationships in fact and parental status laws. There is a need for New Zealand to develop a deliberate and coherent response to surrogacy that addresses these issues.

The new Portuguese law on surrogacy - The story of how a promising law does not really regulate surrogacy arrangements.

Since 2006, surrogacy arrangements have been expressly forbidden within the Portuguese legal order, in any one of its forms, and in some situations, it has even been criminalised. However, since August 2016, surrogacy has been allowed under certain restrictive scenarios, providing it follows several prerequisites. In spite of this progress, the 2016 amendment to the law has not been immune to criticism. One of its most debatable aspects is the lack of the surrogate's right to regret, although it is doubtful that surrogacy contracts will be enforced against a surrogate's wishes. But the weakest point of the new law is its failure to address some of the nuclear issues of surrogacy contracts, leaving solutions either to general contract law or to the clauses stipulated by the parties. Furthermore, it is unclear which clauses are allowed and which are forbidden under the law. This study describes the content of the new Portuguese surrogacy law, exposes its main fragilities and suggests solutions for matters not covered by the law. The conclusion is that a law full of promise fails regarding the issues it is supposed to regulate.

Introduction to the special edition

A special edition of this journal, edited by Dr Kirsty Horsey, including peer-reviewed papers originally presented at a May 2016 conference on surrogacy law reform (Surrogacy in the 21st century: rethinking assumptions, reforming law) - see https://www.kent.ac.uk/law/research/projects/current/surrogacy/projectevent.html Includes contributions from Mary Warnock, Margaret Brazier and Sacha Waxman, Emily Jackson, Kirsty Horsey, Vasanti Jadva, Kim Cotton, Natalie Gamble and Helen Prosser, Natalie Smith, and Colin Rogerson

Not withered on the vine: The need for surrogacy law reform

Not withered on the vine: The need for surrogacy law reform

Law of assisted reproductive surrogacy in Malaysia: a critical overview

Both traditional and gestational surrogacy are now entering the public mind as a major public policy issue, because of concern for apparent truncation of the surrogate mother’s rights. This article sets out to investigate some key relevant rights, the policy issues as yet unresolved, and the character of the current regulatory regime. Modern medicine, specifically assisted reproductive technology, has made legislation obsolete in many jurisdictions around the world, including in Malaysia. These new medical practices present many significant legal problems, with which the courts and legislators still struggle. A proposed statute, the Assisted Reproductive Technique Services Act, aimed at regulating reproductive technologies, including surrogacy arrangements, will be introduced in the Malaysian parliament soon. The proposed Malaysian Act will address issues such as surrogacy, sperm or egg banking, and sperm donation. Malaysia is moving cautiously towards regulation on this issue and is trying to avoid becoming a ‘rent-a-womb country’. Thus, this article asks the question as to what policy considerations are in place, in the current Malaysian regulatory regime, to care for the rights of the surrogate mother? It will try to show that there is still a danger that Malaysia could become a ‘rent-a-womb country’, with its necessary implications of property rights over surrogate mothers. The article employs section-by-section synthesis to reach its conclusions. Argument will suggest that the current state of the law in Malaysia, as to both traditional and gestational surrogacy, seems to be that the regulatory regime is a combination of the general law, private ordering, registration and enforceable professional ethics. However, there is no Malaysian statutory law in place, in the contemporary social context, expressly prohibiting a term in a surrogacy contract that might imply property rights over the surrogate mother. This is a serious apparent lacuna in the law, and might suggest that the laws of transnational crime be considered, as an alternative, as applicable to the surrogacy agreement.

Law and Popular Culture: Five Papers on Alternative Perceptions of Justice

Law and popular culture is an exciting topic at the intersection of law and humanities. This booklet, the result of a Maastricht Research Based Learning project, contains five papers that reflect upon alternative perceptions of justice in popular culture. The papers deal with the law of surrogacy in soap operas, law and musicals, rights for robots in science fiction, the portrayal of law in Erin Brockovich and an inquiry into the principles of contract law in children’s cinema.

Questioning South Africa’s ‘genetic link’ requirement for surrogacy

and a legal challenge currently being made against SA’s Minister of Social Development, who supports the current law. [3] To begin to appreciate some of the rationale for doubting the justice of the law, consider the following scenario. Imagine a couple that has tried for over a decade to get pregnant, but has been unable to do so. Suppose that he is sterile and she is now in her late 40s, without viable eggs and unable to gestate a fetus. And yet both still long to be involved with a child from the start, perhaps one that is likely to have features similar to theirs. The law, as it stands in SA, forbids them from using a surrogate mother who would carry an embryo fertilised by donor gametes that the couple has selected. In this article I appeal to moral-philosophical reasons to conclude that SA’s surrogacy law is unjust in respect of the above scenario and those similar to it. I rebut rationales, usefully divided into consequentialist and non-consequentialist moral arguments, for

New Ethical Horizons in Gestational Surrogacy

Gestational surrogacy occurs when a woman allows a 4-7 day embryo that was not generated from her own egg to develop in her uterus. In this paper, we review emerging scientific evidence to show how maternal-fetal cell exchange (microchimerism) may affect the future health of both surrogate and fetus/child. In light of these findings, we propose that four aspects of gestational surrogacy be examined: (1) the medical health and psychological outcomes of maternal-fetal cell exchange in surrogacy, (2) surrogacy laws and contractual agreements between the various parties, (3) provisions of a more comprehensive genetic family history and genetic screening from all parties involved, and (4) appreciation of the ethical and social complexities of surrogacy. We support gestational surrogacy provided that there is comprehensive informed consent. To be comprehensive, consent should include our current understanding of microchimerism with respect to the medical, legal, genetic, and ethical elements of surrogacy

A Model for Emergency Department End-of-life Communications After Acute Devastating Events-Part I: Decision-making Capacity, Surrogates, and Advance Directives*

Making decisions for a patient affected by sudden devastating illness or injury traumatizes a patient's family and loved ones. Even in the absence of an emergency, surrogates making end-of-life treatment decisions may experience negative emotional effects. Helping surrogates with these end-of-life decisions under emergent conditions requires the emergency physician (EP) to be clear, making medical recommendations with sensitivity. This model for emergency department (ED) end-of-life communications after acute devastating events comprises the following steps: 1) determine the patient's decision-making capacity; 2) identify the legal surrogate; 3) elicit patient values as expressed in completed advance directives; 4) determine patient/surrogate understanding of the life-limiting event and expectant treatment goals; 5) convey physician understanding of the event, including prognosis, treatment options, and recommendation; 6) share decisions regarding withdrawing or withholding of resuscitative efforts, using available resources and considering options for organ donation; and 7) revise treatment goals as needed. Emergency physicians should break bad news compassionately, yet sufficiently, so that surrogate and family understand both the gravity of the situation and the lack of long-term benefit of continued life-sustaining interventions. EPs should also help the surrogate and family understand that palliative care addresses comfort needs of the patient including adequate treatment for pain, dyspnea, or anxiety. Part I of this communications model reviews determination of decision-making capacity, surrogacy laws, and advance directives, including legal definitions and application of these steps; Part II (which will appear in a future issue of AEM) covers communication moving from resuscitative to end-of-life and palliative treatment. EPs should recognize acute devastating illness or injuries, when appropriate, as opportunities to initiate end-of-life discussions and to implement shared decisions.

Surrogacy and India

The Law Commission of India has submitted the 228th Report on Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy. There has been a major change in Indian surrogacy laws. India is now the only country in the world to legalise commercial surrogacy. Unlike in other countries, including the UK, USA and France, in India the surrogacy agreements between the two parties will be legally enforceable. The new law will protect all parties - the genetic parents, surrogate mother and the child. The new Assisted Reproductive Technology (Regulation) Bill & Rules, 2008, states that the surrogate mother can receive monetary compensation for carrying the child in addition to health-care and treatment expenses during pregnancy. But the surrogate mother has to relinquish all parental rights over the child once the amount is transferred and birth certificates will be in the name of genetic parents. The age-limit for a surrogate mother is between 21-45 years. Single parents can also have children using a surrogate mother. This article discusses various aspect regarding surrogacy and its constitutional validity in India. It questions whether right to reproduction is a constitutional right or not. The article also endeavors to draw a comparison between various nations regarding their policy and take on surrogacy.

Domestic and international surrogacy laws: implications for cancer survivors.

Much of the focus in the new field of oncofertility has been on preserving cancer patients’ fertility prior to treatment that is likely to diminish their fertility or render them sterile. Less attention, however, has been paid to the logistics of using frozen eggs, embryos, or ovarian tissue following cancer treatment. It is usually assumed that, following some manipulation, the frozen eggs, embryos, or ovarian tissue will be transferred back into the women’s bodies via assisted reproductive technology (ART) so that they can become pregnant. Some women, however, cannot utilize this technology because their cancer treatment has left them unable to gestate. If these women desire biological children and have banked eggs, embryos, or ovarian tissue, then the only option available to them is surrogacy.

The medicalization of "nature" in the "artificial body": surrogate motherhood in Israel.

In this article, I draw on anthropological and feminist scholarship on the body and the nature/culture divide as a framework for understanding the place of surrogate mothers in a conceptual ideology that connects motherhood with nature. I explore links between the medicalization of childbirth in Israel and the personal agency of surrogate mothers as relayed through interviews. Taking the patriarchal context of the Israeli surrogacy law of 1996 into consideration, I underscore surrogates' imaginative use of medical metaphors as tools for the subversion of surrogacy's threatening social connotations. By redefining the surrogate body as "artificial" and locating "nature" in the commissioning mother's body, surrogates adopt medical rhetoric to transform surrogacy from a transgressive act into an alternative route toward achieving normative Israeli national reproductive goals.

Halakha and Patriarchal Motherhood —An Anatomy of the New Israeli Surrogacy Law

The second half of the 20th century has been a period of innovation in medical technology, with much significance for the social relations of reproduction. The invention of the contraceptive pill changed our attitudes towards the control and prevention of pregnancy, and allowed us to differentiate between female sexual and reproductive activities. The development of blood-typing and genetic tests radically altered the legal procedures for proving paternity, and deeply influenced our understanding of the uncertainty of biological fatherhood. The innovation of various methods of medical imaging gave concrete and human shape to the image of the fetus in its mother's womb. The very moment of conception was transformed, by means of in vitro fertilisation, from a mysterious event taking place in the hidden spaces of a woman's body to an overt and exposed occurrence in a laboratory petri-dish.