Surrogacy motherhood is an assisted reproduction technique where a woman, the surrogate, carries a child who will not be its legal mother.
It is used both for cases where the surrogate provides her uterus for payment and for those where she does so voluntarily. In many countries, surrogacy motherhood is considered illegal. Bioethics commissions in various countries condemn this practice, at least for those that are done for payment, and share the principles that the human body and its parts should not be used as a source of profit and that surrogacy motherhood is a contract that undermines the dignity of the woman and the child subjected as an object to a transfer act. The main bioethical and legal issues with the practice of surrogacy motherhood are the existence or not of a right to the child, the commodification of the body and/or its parts, the donation of the body and/or its parts, the possible resulting contract abortion, contract enforcement, the personal status of the parties involved, and the application of private law of contracts to surrogacy motherhood. An embryo and a foetus are forms of individualized human life, unique and with specific characteristics given by genetic heritage. The embryo is characterized by a fundamental quality of life, namely self-organization and self-finalization, and cannot be classified as an inanimate or vegetable object, but as an animal belonging to the human species. There is a perfect existential and biological continuity between the being that lives in the surrogate and the one that lives outside of it after birth, and therefore every conceived child is a human being. There are legal situations in which the human being is considered as an object, such as in the case of abortion, but these are exceptional cases and not extendable by analogy and it is not a reified condition imposed by law. In general, surrogacy motherhood is considered a controversial issue because it implies the availability of one’s body on the part of the woman, with consequent compression of freedom and injury to dignity. This practice can be compared to slavery, as both compress the freedoms and dignity of people. Furthermore, the donation of the uterus for surrogacy motherhood is not free and is not done for the benefit of others, but only to satisfy the desires of other people. Therefore, in a balance between the desires of individuals and the rights to physical integrity and dignity of the woman, the latter should have priority.
It’s clear that there are different perspectives on the issue of abortion in surrogacy arrangements. One perspective is that the decision to abort should belong exclusively to the gestational mother, because she is the one who will experience the consequences and risks of pregnancy. This view also holds that any laws requiring the consent of the commissioning parents would be invalid, as the gestational mother would only be giving up her parental rights, not her rights over her own person and body. However, this perspective only considers the rights of the mother and not the rights of the child, who is the most vulnerable party in the situation. It also assumes that it is possible to give up parental rights without considering the corresponding rights of the child. The logical consequence of this approach is the degradation of the child from a subject to an object of law.
Another perspective is that in the case of fetal anomaly, the legal power to decide should be given to the commissioning parents, as they will be responsible for the care of the child after birth. This view suggests that the content of the right to privacy – that is, the allocation of decision-making power – should be determined considering the social relationships involved. The consequence of this approach is that if the commissioning parents decide to abort and the surrogate decides not to agree, either the execution of the contract can be forced, or the responsibility of the newborn will remain with the gestational mother, as she would have violated the contractual relationship that binds her to the commissioning parents.
The issue of surrogacy contract enforcement concerns the ability to impose the will of the contractual parents over that of the surrogate, both in terms of the decision to terminate or continue a pregnancy. Some argue that this ability is necessary to ensure the interests and economic resources of the contractual parents, while others argue that treating human beings as objects of law violates the right to health of the individuals involved and constitutes a form of contractually sanctioned temporary slavery. Additionally, the issue of the personal status of the individuals involved, such as the donors/sellers of gametes, the surrogate, the contractual parents, and the child, is complex and merits further analysis. It is observed that while the law and legal disciplines cannot completely disconnect from reality and truth to become completely self-referential, it is also not possible to disregard ethics and reality by embracing relativism. In the case of same-sex parents being indicated on a birth certificate, it is important to consider the reality of biology and the rights of the child, as well as ethical considerations, in order to prevent past mistakes from being repeated. Additionally, applying the law of contracts to surrogacy raises troubling questions and may lead to fragmentation of the parental figures, particularly the maternal figure, potentially causing harm to the individuals born through surrogacy. It is important for the law to be anchored in reality and to not disregard ethics in order to ensure that the rights and well-being of all parties involved are protected.
The ethical issue regarding the denial of human personality in the womb is complex and depends on different bioethical positions. Some of these positions argue that the human in the womb is not yet a “person,” as it has not yet developed the central nervous system or is not yet capable of having interpersonal relationships. Other positions argue that the biological data is not relevant in determining the ontological status of the conceived and that the value of human life depends on interpersonal relationships. There are also positions that argue that the human in the womb is already a person, who has the right to protection and respect. In general, the ethical issue regarding the denial of human personality in the womb is still a subject of debate and there is no unanimous answer.
Anti-naturalism argues that the relationship with others is the key to classifying an individual as a person. However, denying the fact that the conceived is already a distinct human being and in a relationship with the mother and others would reduce anti-naturalism to a form of cultural sensationalism that arbitrarily chooses a feature to discriminate between human and non-human beings. Functionalism, on the other hand, confuses the plane of being with that of acting, fragmenting the subject into a series of actions and operations without a subject to which to refer them. This creates a logical short circuit that is difficult to overcome. In both cases, to exclude the conceived from the category of people, it is necessary to declare that their conditions are not sufficient for this. However, even among the born there are individuals who lack one or more of the characteristics indicated and who could therefore be considered non-persons according to one or more of these systems. The question that arises is whether it is prudent to exclude some individuals from the category of people and deny them the related rights and protections. Perhaps it would be wiser, following the argument of doubt, to protect everyone as if they were people, given the biological certainty and the hypothetical nature of the parameters used to determine who is a person and who is not. The legalization of desires as rights and the coincidence between what is technically possible and what is lawful are complex and controversial issues. The jurist Piero Calamandrei argued that law consists not only in allowing each person to do what they want but must also take into account the rights of others. In relation to surrogacy, for example, there are ethical and legal issues related to the rights of the conceived, the surrogate mother, and the biological parents. Furthermore, the issue of biological and historical identity of children and people is important for health and psychological reasons. Knowledge of one’s biological origins can help prevent hereditary diseases and build a healthy personal identity. However, legislation on privacy and on the donation/sale of genetic material can make it difficult for children to know their true identity.
In summary, the ethical issues surrounding surrogacy involve the potential imposition of the will of the contractual parents over that of the surrogate, whether it pertains to the decision to terminate or continue the pregnancy. There are also questions of the personal status of those involved, such as the donors/sellers of gametes, the surrogate, the contractual parents, and the child, which are complex and warrant further analysis. The question of the personhood of the human being in the womb is also complex and depends on different bioethical positions. Some argue that the human being in the womb is not yet a “person” because they have not yet developed a central nervous system or are not yet capable of inter-human relationships. Others argue that the biological data is not relevant to establish the ontological status of the conceived and that the value of human life depends on inter-human relationships. There are also positions that argue that the human being in the womb is already a person, who is entitled to protection and respect. The question of denying the personhood of the human being in the womb is still the subject of debate and there is no clear answer. It may be prudent to protect everyone as if they were persons, given the biological certainty and the hypothetical nature of the parameters used to determine who is a person.
Surrogacy can lead to situations where a child is separated from their biological parents, creating potential psychological and developmental issues. Despite scientific theories supporting the indifference of parental figures, there is no concrete evidence supporting this statement. Therefore, it would be appropriate to avoid social experimentation on children and to try to ensure that they have the best possible environment for development and growth, based on solid data and correct scientific methods.
Surrogacy is a complex and nuanced issue that involves multiple bioethical and social issues. It is usually analysed from the perspective of the gestational mother and the social parents, but this neglects the impact on the rights of the conceived children. My proposal is to put the children at the centre of the discussion, considering them not as objects but as subjects of rights and to promote a change of perspective for a more comprehensive bioethical analysis of surrogacy.