The Surrogacy is a method of reproduction which is performed in cases of female infertility due to the absence of uterus (Rokitansky-Kuster-Hauser syndrome or MRKH) at its malformation or following surgical removal (hysterectomy).
They are two types of Surrogacies. The Traditional Surrogacy, where surrogate’s eggs are used, making her the biological mother of the child she carries and the Gestational Surrogacy (GS), where the surrogate has no biological link to the baby. While both exist, the majority of the cases are based on the Gestational Surrogacy (GS), as explained her bellow:
The gestator carries the child of a couple of "intended parents" (IPs) who provided embryos. It never provides a genetic contribution, that is to say an egg, but supports the development of an embryo in utero and, at birth, gives the child to the intended parents (IPs).
Several scenarios are possible. Intentional parents may also be the genetic fathers and mothers of the child if the couple has not used gamete donation (oocyte donation or sperm donation) or they have only a partial genetic link (use of a sperm or oocyte donation) or no relationship with the child (use of sperm and oocyte donation).
The vocabulary used to name the gestator varies: it is sometimes also called "birth mother", "surrogate mother" or simply "mother" when the law is based on the principle that the mother is the one who gives birth (mater semper certa est, "the mother is always certain "in Latin). The term "gestational surrogacy" is itself debated, with some preferring to speak of "maternity on behalf of others" or "recourse to a gestational surrogate", depending on the way this practice is viewed.
The legal status of surrogacy varies from country to country. Forbidden in some countries, in the name of the principle of unavailability of the human body, it is allowed in others, under variable conditions concerning, for example, the criteria for access to this method of procreation, the authorization or the prohibition of a gestational mother's remuneration, the rights of intentional parents on health decisions during pregnancy, and children's access to their biological origins. In other countries, gestational surrogacy is not explicitly mentioned in law.
Due to variations in legislation, differences in medical technology and income across countries and the freedom of movement of people, some spoke of "procreative tourism". This practice sometimes gives rise to a legal problem when it comes to transcribing birth certificates issued abroad. Indeed, some jurisdictions do not recognize surrogacy as a method of legal procreation, in the name of the principle of non-commercialization of the human body and because the gestator is considered fully mother. They then refuse to recognize the status of parents to persons returning with a child or children conceived by a gestational surrogate abroad, even if the country of birth authorizes the surrogacy and has established filiation between the child and the intentional parents. One of the reasons given is that the birth mother no longer appears on the filiation of the child, which is considered a lie in the eyes of the legislation of some. Nevertheless, it is possible to prove the paternity of the child!
The legal aspects of surrogacy in any particular jurisdiction tend to hinge on a few central questions and a follow up of the current laws of the origin country of the "intended parents" and of the surrogacy country:
- Are surrogacy agreements enforceable, void, or prohibited?
- Does it make a difference whether the surrogate mother is paid (commercial) or simply reimbursed for expenses (altruistic)?
- What, if any, difference does it make whether the surrogacy is traditional or gestational surrogacy?
- Is there an alternative to post-birth adoption for the recognition of the intended parents as the legal parents, either before or after the birth?
- And many others.
