ArticlePDF AvailableLiterature Review

Forensic considerations of surrogacy - An overview

Authors:
  • Medical Superintendent Santosh Hospitals

Abstract

In the past two decades, there has been a spectacular change in the field of reproductive technologies. Reproductive sciences have come in with techniques such as donor insemination; in vitro fertilization and embryo transfer methods, which have completely revolutionized the reproductive environment. These techniques have given hope to many infertile couples, who wish to have a child of their own. With the oncoming of surrogacy agreements, concepts of fatherhood and motherhood have been subject to much controversy. Motherhood was never under much scrutiny as it was rightly thought that childbirth was the natural and conclusive fact establishing it, though paternity was at times a controversial concept burdening legislators to provide for suitable tests. Medical sciences have now compartmentalized motherhood into the genetic, gestational and the social mother leading to a clash of interests. This paper reviews some medicolegal, ethical and social aspects of surrogacy.
Review
Forensic considerations of surrogacy – an overview
B.R. Sharma
Department of Forensic Medicine and Toxicology, Government Medical College and Hospital, # 1156 – B, Sector – 32 B, Chandigarh, UT 160030, India
Received 12 June 2005; accepted 8 August 2005
Available online 28 November 2005
Abstract
In the past two decades, there has been a spectacular change in the field of reproductive technologies. Reproductive sciences have
come in with techniques such as donor insemination; in vitro fertilization and embryo transfer methods, which have completely rev-
olutionized the reproductive environment. These techniques have given hope to many infertile couples, who wish to have a child of
their own. With the oncoming of surrogacy agreements, concepts of fatherhood and motherhood have been subject to much con-
troversy. Motherhood was never under much scrutiny as it was rightly thought that childbirth was the natural and conclusive fact
establishing it, though paternity was at times a controversial concept burdening legislators to provide for suitable tests. Medical
sciences have now compartmentalized motherhood into the genetic, gestational and the social mother leading to a clash of interests.
This paper reviews some medicolegal, ethical and social aspects of surrogacy.
Ó2005 Elsevier Ltd and AFP. All rights reserved.
Keywords: Surrogate; Intended parents; Surrogate motherhood; Traditional surrogacy; Gestational surrogacy
1. Introduction
A surrogate mother is a woman who carries a child,
usually for an infertile couple. Surrogate mothers are
not a new solution to the old problem of not being able
to reproduce an offspring. Surrogacy has been around a
long time and dates back to biblical times. Although the
practice of surrogate motherhood has become more
common since the American College of Obstetricians
and Gynecologists (ACOG) issued its first statement
on this subject in 1983, but it continues to be controver-
sial. There are those who believe that surrogacy should
be permitted because such arrangements can be benefi-
cial to all parties, and to prohibit them would limit the
autonomy of infertile couples and surrogates. Others
believe that the risks outweigh the benefits or that
because of shifting emotions and attitudes toward the
fetus during gestation, it is not possible for a pregnant
woman to give truly informed consent to relinquish an
infant until the birth has occurred.
1
Many issues related to surrogate motherhood have
not been resolved and considerable disagreement per-
sists within the medical profession, the medical ethics
community, state legislatures, the courts and the general
public. In some countries/states, the practice of surro-
gate motherhood is not clearly covered under existing
laws, whereas there is a split among the states that have
statutes. Some states prohibit surrogacy contracts or
make them void and unenforceable, while others permit
such agreements.
2
Furthermore, the existing statutes
may not prove adequate because of the complexity of
the problem in the courts, when asked to decide a dis-
pute regarding parental rights or custody of a child born
as a result of surrogacy arrangements. Courts faced with
such decisions have given preference to different factors:
the best interest of the child, the rights of the birth
mother (as in adoption situations), the genetic link
between the child and the genetic parents, and the intent
of the couple who entered into a surrogacy contract to
1353-1131/$ - see front matter Ó2005 Elsevier Ltd and AFP. All rights reserved.
doi:10.1016/j.jcfm.2005.08.002
E-mail address: drbrsharma@yahoo.com.
www.elsevier.com/locate/jcfm
Journal of Clinical Forensic Medicine 13 (2006) 80–85
JOURNAL OF
CLINICAL
FORENSIC
MEDICINE
become parents. Often two or more of these factors con-
flict with each other, and there is no consensus in the
legal or ethical communities as to which should have pri-
ority.
3–6
2. Types of surrogacy
Based on the source of genetic material, surrogacy
may be classified into two types – traditional and gesta-
tional. In traditional surrogacy, the intended parents are
a couple who reach an agreement with a woman (the
surrogate mother) who will be artificially inseminated
with the sperm provided by the male partner of the cou-
ple seeking surrogacy services. Thus, the genetic and the
gestational mother of any resultant child is the surrogate
mother and the genetic father is the intended father. In
gestational surrogacy, the surrogate mother has no
genetic ties to the offspring. Eggs and sperm are
extracted from the donors and in vitro fertilized and
implanted into uterus of the surrogate, who fulfils only
the role of gestational mother. This type of arrangement
was originally called Ôsurrogate gestational motherhoodÕ
with the carrying woman being referred to as the Ôgesta-
tional carrierÕor Ôgestational surrogateÕ.
3. Arguments for and against surrogate parenthood
arrangements
Surrogate parenthood can allow a couple to have a
child when they would otherwise be unable to do so
except by adoption, because of an inability to achieve
pregnancy or medical contraindications to pregnancy
for the intended mother. Adoption, however, does not
provide a genetic link to the child, an important consid-
eration for some prospective parents who may chose
surrogate parenthood because of a desire for genetic
linkage, or otherwise, for practical reasons, such as the
scarcity of adoptable children.
Arguments based on reproductive liberty also sup-
port surrogate parenthood arrangements. In many
countries, the freedom to decide whether and when to
conceive or bear a child is a highly protected right. Thus,
it can be argued that the intended parents and surrogate
mothers should be free to cooperate in procreating, at
least in cases of medical need and where care is taken
to avoid harming others, especially the prospective
child. Furthermore, the surrogate mother may derive
satisfaction from helping the intended parents, primarily
for altruistic reasons and see their services as a gift to the
needy.
The primary arguments against surrogate mother-
hood are based on the harms that the practice may be
thought to produce – harms to the child that is born,
harms to the surrogate herself, harms to her existing
children (if any) and harms to society as a whole. It is
surely harmful to any child to be the object of a custody
dispute. In addition, the rejection of a disabled infant by
both intended parents and the surrogate mother is a sig-
nificant harm. The existing children of a surrogate
mother may be harmed if her pregnancy and relinquish-
ment result in high levels of stress for the surrogate or
her family. These children and the society as a whole,
may be harmed by the perception that reproduction is
trivialized by transactions that translate womanÕs repro-
ductive capacities and the infants that result into com-
modities to be bought and sold. Depersonalization of
a pregnant woman as a ÔvehicleÕfor the genetic perpetu-
ation of other individuals may harm not only surrogate
mothers but also the status of woman as a whole. Fur-
thermore, there is a concern that redefining concepts
of motherhood may threaten traditional understandings
of parenting and family.
However, there are only a few studies that provide
data about harms and benefits resulting from surrogate
parenting arrangements. Speculative discussions about
possible outcomes do not provide a solid foundation
for ethical conclusions and clinical guidelines. It is
important to know whether these outcomes actually
occur, and if so, how frequently thus necessitating a
need for more studies that will provide relevant data.
4. Legislative developments
Not surprisingly surrogacy agreements have posed a
series of social, ethical and legal issues, which need to
be carefully evaluated. This evaluation must be read in
the backdrop of the conservative attitude of the people
on this issue. While countries like UK, Australia, and
the USA have taken efforts to legislate in this regard,
in India, the National Guidelines govern such arrange-
ments. Although surrogacy has met with staunch oppo-
sition where experts from varied fields, have
unflatteringly compared it to Ôwomb-leasingÕand
Ôbaby-sellingÕ, it is important to remember that if forbid-
den, it indirectly encourages clandestine growth of such
practices.
In the United Kingdom, Surrogacy is governed by the
Surrogacy Arrangements Act, 1985.
7
Very close to its
heels came the Human Fertilization and Embryology
Technology Act, 1990
8
that conclusively dealt with cer-
tain provisions left ambiguous in the preceding Act.
Warnock Committee constituted in 1982 critically exam-
ined the positive and negative aspects of reproductive
advancements in relation to surrogacy arrangements.
Each of the five Australian provinces viz. Victoria,
South Australia, Australian Capital Territory, Queens-
land and Tasmania has introduced its own legislation
to regulate such practices. In the USA, there is no
national legislation regulating surrogacy arrangements
B.R. Sharma / Journal of Clinical Forensic Medicine 13 (2006) 80–85 81
and each state is free to have its own legal perspective in
this regard. However, some States have sternly disap-
proved such arrangements, while others have made laws
governing it. In India, the National Guidelines have
been drafted for the accreditation and regulation of spe-
cific medical clinics under the supervision of the Indian
Council for Medical Research.
9
It has been thought that
these clinics are to assist in the implementation of the
latest reproductive technologies.
5. Forensic issues
Surrogacy arrangements have disrupted the tradi-
tional methods of procreation. This has led to the recon-
sideration of serious moral, ethical and legal issues.
Some of them, which must be taken into account, are
the following sections.
5.1. Whether commercial and altruistic surrogacy
arrangements can be distinguished from one another?
Surrogacy arrangements may be of two types, com-
mercial and altruistic. Almost no legislation has
attempted to define the two. Generally, commercial sur-
rogacy arrangements are those involving payments
made to surrogate, which are over and above the neces-
sary medical expenses. This is common when the surro-
gate is unknown to the commissioning couple. Altruistic
arrangements are associated with no or only minimum
payments for the necessary medical expenses. This is
more commonly arranged between close relatives and
friends of the commissioning parents. However, the task
of clearly differentiating the two arrangements has
always been troublesome.
In the United Kingdom, the 1985 Act was hastily leg-
islated after the much-publicized Baby-Cotton case
(1985 FLR 846). Nowhere has it defined the two types
of surrogacy arrangements. The Act only prohibits com-
mercial surrogacy arrangements and outlaws advertising
in this regard. Therefore, one implies that it indirectly
allows altruistic surrogacy arrangements. The Act does
not prohibit payments made to the surrogate. In fact,
it allows the surrogate to receive reimbursement for gen-
uine medical and pregnancy related expenses. Surpris-
ingly, if extra payment is made to her, no criminal
offence is made out as per the 1985 Act. Unfortunately,
in reality Section 30 of the Human Fertilization and
Embryology Act, 1990 acts as a disincentive, as it may
hinder the commissioning parents from obtaining a
parental order if payments exceed the amount of genu-
ine expenses. The practice of paying money in exchange
of adoption is also not encouraged by Section 57 of the
Adoption Act of 1976.
To prevent commercialization in this regard, the
Warnock Committee has suggested the introduction of
new provisions defining the term payments. As rightly
pointed out by them, without this, differentiating com-
mercial from altruistic arrangements becomes difficult.
The Committee has been endeavoring to put a ceiling
to the maximum lawful amount that can be paid to
the surrogate for her services. It has altogether suggested
the formulation of a new Surrogacy Act that would
extensively deal with this issue.
In India, the National Guidelines for the Accredita-
tion, Supervision and Regulation of Assisted Reproduc-
tive Techniques (ART) have not defined either a
commercial or an altruistic surrogacy arrangement.
These Guidelines have only stated that the ART clinics
shall not play a role in commercial surrogacy arrange-
ments. With regard to payments, the National Guide-
lines are definitely not averse to such being paid to the
surrogates. In fact it is liberal, as it provides for a clause
where liability is imposed on the infertile couple to bear
the genuine medical expenses. Surprisingly, unlike any
other country, it even entitles the surrogate to receive
compensation for the service she provides. It provides
scope for a private financial agreement to be drawn up
between the parties in such circumstances. Strictly
enough, the Guidelines require a documentary evidence
of such monetary agreements i.e., an agreement for gen-
uine expenses or compensation to the surrogate. More-
over, the National Guidelines have taken a startlingly
different view as compared to other nations, with regard
to the issue of participation of close friends and relatives
in altruistic arrangements. It sternly prohibits close
members of the infertile couple from acting as surro-
gates. It does not even permit donation of sperms or
ovum by such person, as the ART clinics are responsible
for obtaining these gametes from authorized places.
5.2. To whom shall the parental rights be conferred once
the child is born?
With radical developments in reproductive sciences, it
is imperative to consider certain potential consequences,
it might entail. In surrogacy arrangements, at least three
women can prove their maternal link to the child so
born. She can be the genetic, gestational or the social
mother. As the concept of motherhood has been sun-
dered with the advent of medical advancement, the
law must clearly pinpoint the legal mother so that she
along with her husband can be conferred the parental
responsibilities in respect of the child.
In the United Kingdom, the 1990 Act clarified this
issue by declaring the surrogate to be the legal mother
of the child. Therefore, as opposed to the terms of the
contract, if she has a change of heart by wanting to keep
the child for herself, she cannot be forced by the Com-
missioning parents to relinquish the custody of the child.
In a different set of circumstances, Section 30 of the 1990
Act provides for Ôparental ordersÕ. This order enables the
82 B.R. Sharma / Journal of Clinical Forensic Medicine 13 (2006) 80–85
Commissioning parents to adopt the child once born.
Initially, certain conditions have to be complied with
before the parental rights are granted to them. Once
the court grants the parental order, all the parental
responsibilities are conferred to them. This then auto-
matically extinguishes the rights previously exercised
by the surrogate mother.
In the USA, the solution to this sensitive problem has
been left to the Judiciary of those states, which allow
surrogacy arrangements. It started as early as 1986.
The Kentucky Supreme Court while deciding Surrogate
Parenting Associates v. Commonwealth ex rel Arm-
strong
10
held that the surrogate ought to be granted
the custody of the child, making her the legal mother.
This was not followed by the New Jersey Supreme Court
in ÔBaby MÕcase
11
where the Commissioning parents
were given custody of the child on the basis that they
were the legal parents of the child. In a few years, the
California Supreme Court seemed to revolutionize the
concept of parenthood in Johnson v. Calvert.
12
It sternly
held that the custodial right of the child was to be con-
ferred to the woman who first intended to bring about
the birth of the child and intended to raise the child as
her own. Therefore, California seems to be the most
suitable forum for any Commissioning Parents who
wish to enforce surrogacy agreements and assert their
parental rights. The nation does not oppose single
men, unmarried women or homosexual couples from
choosing surrogacy arrangements as the only means to
have a child. In these circumstances, they are automati-
cally granted the parental rights.
In India, it has been realized that though surrogacy
arrangements are a viable option for infertile couples,
it involves strong human emotions. This highly emo-
tional issue has been tactfully dealt with while attempt-
ing to decide on whom, the parental rights should be
conferred, so that the welfare of the child is not under-
mined. The National Guidelines have elaborately laid
down the suggested law. It does not consider the surro-
gate to be the legal mother under any circumstances. It
explains that in cases where the surrogate is bearing a
child with whom she has no genetic relation, the birth
certificate shall have the name of the genetic parent.
9
Therefore, if the genetic parents are the Commissioning
parents, who have contributed their gametes for the
unborn child, they shall be automatically recorded as
the legal parents, if DNA tests prove the same. An adop-
tion in such circumstances is not required. In circum-
stances where the surrogate donates her ova, the child
shall have to be legally adopted by the infertile couple.
Only then can they become the legal parents, which shall
be appropriately recorded in the birth certificate of the
child. In cases where the genetic material is provided
by third party donors, the birth certificate shall initially
record the names of the genetic parents. The infertile
couple only after adoption shall be considered to be
the legal parents of the child for all purposes. The birth
certificate after adoption will then automatically show
them as the legal parents.
5.3. Whether surrogacy agreements have the propensity to
exploit women?
Under this heading it is to be considered whether pay-
ments is the only factor which induces a surrogate to
undertake risks which at times could run contrary to
her best interests. Some believe that only commercial
arrangements are exploitative by nature, while altruistic
arrangements are considerably less abusive. While trying
to gauge the level of exploitation in each type of
arrangement, it is necessary, to take into account both
economical and emotional exploitation, in oneÕs
deliberations.
In the United Kingdom, the 1985 Act has made such
agreements unenforceable. Hence, it implies that the
Court will not allow adjudication upon issues of pay-
ments. This may lead people to believe that as surrogacy
arrangements are devoid of legal recognition, under-
ground arrangements will not be illegal. Once this hap-
pens, the chances of exploiting the surrogate increases.
Therefore, it is wiser to encourage these arrangements
in the open allowing voluntary agencies to participate
by providing the necessary counseling, legal and medical
assistance. Interestingly, the Warnock Committee has
recommended that fertile couples should not be allowed
to enter into a surrogacy arrangement as a matter of
convenience. This is to prevent fertile women from buy-
ing a womb because they might feel there is a substitute
available, who can undertake her reproductive responsi-
bilities in exchange of a paltry sum.
In the USA, there are divergent views on this issue.
Justice Wintersheim of the Supreme Court of Kentucky
in Surrogate Parenting Association v.Commonwealth ex
rel Armstrong observed there was a probability that
poor women of third world countries be made victims
of such exploitation. However, this argument did not
hold sway with the California Supreme Court in Johnson
v. . Calvert, which held that due to a lack of empirical
data, no such conclusion can be drawn.
In India, The National Guidelines have laid down
safeguards so as to eliminate all possible forms of
exploitation. The chances are minimized as the entire
arrangement is under the strict vigil of the ART clinics.
Further, these clinics are under the supervision of an
Accreditation authority. This authority makes it ade-
quately clear that not only is it nonsupportive of com-
mercialization but also wishes to be nonmeddlesome in
the financial arrangements as between the parties. Fur-
ther, the National Guidelines are not hostile towards
additional payments made to the surrogate. This is
because it is normally presumed that underpaid surro-
gates are more susceptible to exploitation.
B.R. Sharma / Journal of Clinical Forensic Medicine 13 (2006) 80–85 83
5.4. Whether the welfare of the child is of paramount
importance in surrogacy agreements?
One can never disagree that the prime concern in sur-
rogacy agreements should be to secure the welfare of the
unborn child, leaving all other facets secondary. In the
United Kingdom and the USA, it is considered well set-
tled that the welfare of the child is of paramount impor-
tance. For instance, in the United Kingdom, Section 30
of the 1990 Act provides for a guardian ad litem who
plays a crucial role in ensuring that the interest of the
child is protected. In the USA, the case of a child who
was born deformed and neither the Commissioning par-
ents nor the surrogate mother wished to adopt it, more
famously known as the ÔBaby Doe caseÕ,
13
was decided
by the Michigan Supreme Court in 1983. The Court held
that in such cases, the genetic parents would be liable to
adopt the child. In India, The National Guidelines have
a separate segment outlining the rights of the child.
Once born, he or she is treated as the legitimate child
of the infertile couple.
5.5. Should surrogacy arrangements be enforceable in the
Courts of Law?
Normally, when an infertile couple opts for a surro-
gacy arrangement, it is desirable to have a contract
between the Commissioning parents and the surrogate
mother. Once the duties and the responsibilities are
unequivocally spelt out, it prevents misunderstandings
in the future. The complication starts the moment
one party disrespects a provision in the contract. The
crucial question, which arises then, is whether the
aggrieved party can seek to enforce the terms of this
contract by resorting to court proceedings. In the Uni-
ted Kingdom, Section 36
1
of the 1990 Act read with
Section 1A of the 1985 Act have clearly provided that
such contracts are not enforceable in law. This provi-
sion applies to both altruistic and commercial surro-
gacy arrangements. The Indian Guidelines do not
expressly mention the necessity of surrogacy agree-
ments. It provides for necessary measures to be under-
taken by the licensed medical clinics, which are further
subjected to the strict supervision and regulation of an
accreditation authority.
5.6. Should surrogacy arrangements be regulated under
law?
Laws of most nations have outlawed commercial sur-
rogacy arrangements, leaving the altruistic agreements
unregulated. This has proved to be detrimental to the
interests of the parties because, while commercial
arrangements are absolutely banned, altruistic arrange-
ments have no rules governing them. People who shall
then avail of these arrangements cannot obtain the opti-
mum benefit out of it. For they will not know to whom
or where to go for medical or legal assistance. Moreover
at every step, they will be under a constant fear of break-
ing the law, as the rules by which they are governed are
ambiguous in nature. Therefore, it is necessary for the
statute to explicitly lay down regulations to protect the
varied interest of all.
In the United Kingdom, the 1990 Act has laid down
the foundations for a regulating authority, which shall
grant licenses to agencies involved with the usage of
embryos in the experimentation with gametes, outside
the human body. The Act as it stands today regulates
only the medical treatment of the consenting surrogate.
It does not supervise the overall working of the surro-
gacy arrangements. The Warnock Committee has sug-
gested three methods of regulations: (1) by having all
such medical clinics licensed by the 1990 Act; (2) by
setting up a special licensing authority for the regula-
tion of surrogacy arrangements; (3) by registering such
clinics under the UK Health Department which would
have to draw up a separate Code of Practice in this
regard.
In India, The National Guidelines have been drawn
to regulate ART clinics to deal with surrogacy arrange-
ments. The guidelines emphasize that it is mandatory for
medical clinics (operating in this sphere) to acquire a
license before they start functioning. A list has been pro-
vided specifically, enumerating the types of clinics,
which require compulsory licensing.
5.7. What should be the responsibilities of physicians?
When approached by a couple considering surrogacy,
the physician should, as in all other aspects of medical
care, be certain that there will be a full discussion of eth-
ical and legal issues as well as medical risks, benefits and
the available alternatives. An obstetrician – gynecologist
who is not familiar with these issues should refer the
couple for appropriate counseling. A physician may jus-
tifiably decline to participate in initiating surrogate
motherhood arrangements for personal, ethical or med-
ical reasons. However, if he/she decides to become
involved in facilitating the arrangements, the following
guidelines may be used:
Because of the risks inherent in surrogacy arrange-
ments, such arrangements should be considered only
in the case of infertility or health related needs, not
for the convenience alone.
The physician should be assured that appropriate
procedures including fertility studies, medical screen-
ing and psychological assessment are used to screen
the intended parents and the surrogate.
Mental health counseling should be provided before
initiation of a pregnancy to permit the potential sur-
rogate and the intended parents to explore the range
84 B.R. Sharma / Journal of Clinical Forensic Medicine 13 (2006) 80–85
of outcomes and possible long-term effects as well as
to consider possible psychological risks to and vul-
nerabilities of both parties and the prospective child.
A physician making a referral to an agency must have
assurance that the agency is medically and ethically
reputable and that it is committed to protecting the
interests of all parties involved.
The physician should urge the intended parents to
discuss preconditions and the possible contingencies
with the surrogate or her representative and to agree
in advance on the response to them. These include,
but may not be limited to, the expected health
related behaviors of the surrogate; the prenatal diag-
nosis of a genetic or chromosomal abnormality; the
inability or unwillingness of the surrogate to carry
the pregnancy to term; the death of one of the
intended parents or the dissolution of the coupleÕs
marriage during the pregnancy; the birth of an
infant with a disability; a decision by the surrogate
mother to abrogate the contract and contest custody
of an infant conceived through the sperm of the
intended father; or, in the case of gestational surro-
gacy, the option of registering the intended parents
as the legal parents. The physician should also urge
the parties involved to record in writing the precon-
ditions and contingency plans on which they have
agreed.
The physician performing artificial insemination or
in vitro fertilization as a part of surrogacy services
necessarily will have to deal with both – the intended
parents and the surrogate. However, the couple and
the surrogate should have independent counseling
and independent legal representation and the surro-
gate should obtain obstetric care from a physician
who is not involved with the intended parents.
Confidentiality between the physician and the preg-
nant patient should be maintained. The intended par-
ents may have access to the patientÕs medical
information only with her explicit consent.
The pregnant surrogate should be the sole source of
consent regarding clinical intervention and manage-
ment of the pregnancy, labor and delivery.
The physician should receive only usual compensa-
tion/fee for medical services.
6. Conclusion
Reproductive infertility has always put unwanted
pressure on young couples, causing them much anxiety.
With radical developments in the field of medical tech-
nologies, solutions to the problem of infertility have
changed. Concepts, such as surrogacy arrangements
have shaken the foundations of predetermined parental
roles and responsibilities. The optimistic streak is that
certain developed nations instead of condemning such
concepts have taken affirmative steps to legislate in this
regard. Unfortunately, the mere existence of legislation
is not enough. For example, hastily drafted laws consist-
ing of ambiguous provisions create more problems than
any solved. Therefore, instead of letting ambiguity pre-
vail, a well-structured legislation is an immediate
necessity.
It may be suggested that an all encompassing code of
practice be drawn up which could probably govern all
the crucial aspects of any surrogacy arrangement. This
code must be binding on all parties. Further, the surro-
gate must have the right to reproductive autonomy,
where she can independently decide when and for whom
to procreate. Matters regarding payment that would
inevitably rope in series of moral and social issues must
be resolved in the backdrop of oneÕs societal values and
the countryÕs legal advancement. The practice of surro-
gacy should not be set aside, instead it should be appre-
ciated as a viable option for the infertile couples.
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B.R. Sharma / Journal of Clinical Forensic Medicine 13 (2006) 80–85 85
... Membership in maternal mortality committees (33,50) Membership in maternal and neonatal policy and surveillance committees with the aim of preventing morbidity and mortality (34,50,51) Reporting and gathering legal and biological documentation on deaths related to abortion, underlying diseases in pregnancy, and failure of the health care and treatment system to submit to the relevant agencies (34,50,52,53) Membership in committees on abortion therapy (34,54,55) Provision of education for health professionals to improve their knowledge and awareness of the existing laws and guidelines regarding maternal morbidity and mortality (56,57) Service provision ...
... According to the results of the present study, the theme of "practices related to pregnancy issues" was formed to answer specific legal questions about pregnancy and women's care, such as maternal and fetal mortality (33,34), diagnosis of pregnancy, abortion, delivery (11,32), or therapeutic abortion (35), and application of modern assisted reproduction methods in cases with infertility (33). Currently, specialists in forensic medicine in Iran respond to questions about pregnancy, delivery, and infertility. ...
... According to the results of the present study, the theme of "practices related to pregnancy issues" was formed to answer specific legal questions about pregnancy and women's care, such as maternal and fetal mortality (33,34), diagnosis of pregnancy, abortion, delivery (11,32), or therapeutic abortion (35), and application of modern assisted reproduction methods in cases with infertility (33). Currently, specialists in forensic medicine in Iran respond to questions about pregnancy, delivery, and infertility. ...
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Background & aim: Forensic midwifery is a new major which has been established in response to the need of endangered women for forensic services and also the lack of service provision in this domain. However, there are ambiguities in the definition of this major and its scope of practice. The present study was conducted to investigate the scope of practice in forensic midwifery. Methods: In this integrative review, the articles related to the subject of interest were searched in several database including PubMed, Scopus, CINHAL and Google Scholar. All kinds of publications including reviews and standards, qualitative, quantitative, or mixed methods studies were included in the review regardless of the publication date. The data related to the scope of practice in forensic midwifery were extracted using a wide and in-depth analysis, in addition to using an expert panel for validation. To do the analysis, every concept representing scope of practice was coded and similar codes were classified into themes. Results: The search process resulted in retrieval of 43 articles. Based on the reviewed papers, the scope of practice in forensic midwifery divided into four categories including the practices related to reproductive issues, violence, malpractice in obstetrics and gynecology profession, and the improvement of the professionalism in midwifery domain. Conclusion: Considering the potentials of forensic midwifery, the graduates of this major could have an important role in the protection of women's rights in forensic situations.
... Piersanti, Consalvo, Signore, Del Rio, and Zaami (2021) underscore that surrogacy isn't a brand new resolution to the recent downside of physiological condition. though it's been around for a protracted time, it's become a lot of common since the yank faculty of Obstetricians and Gynecologists (ACOG) printed its 1st statement on this subject in 1983 (Sharma, 2006). There are a unit people who believe that surrogacy ought to be allowed as a result of it's advantageous for all parties and prohibiting it'd limit the autonomy of sterile couples, and there are a unit people who believe instead that the risks outweigh the advantages. ...
... Surrogacy is not a new solution to the old problem of infertility. Although it has been around for a long time, it has become more common since the American College of Obstetricians and Gynecologists (ACOG) published its first statement on this topic in 1983 [5]. ...
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Background and objectives: To explore the ethical and legal complexities arising from the controversial issue of surrogacy, particularly in terms of how they affect fundamental rights of children and parents. Surrogacy is a form of medically-assisted procreation (MAP) in which a woman “lends” her uterus to carry out a pregnancy on behalf of a third party. There are pathological conditions, such as uterine agenesis or hysterectomy outcomes, that may prevent prospective mothers from becoming pregnant or carry a pregnancy to term; such patients may consider finding a surrogate mother. Many issues relating to surrogacy remain unresolved, with significant disagreements and controversy within the scientific community and public opinion. There are several factors called into play and multiple parties and stakeholders whose objectives and interests need to somehow be reconciled. First and foremost, the authors contend, it is essential to prioritize and uphold the rights of children born through surrogacy and heterologous MAP. Materials and methods: To draw a parallel between Italy and the rest of the world, the legislation in force in twelve European countries was analyzed, eleven of which are part of the European Union (France, Germany, Italy, Spain, Greece, Netherlands, Belgium, Denmark, Lithuania, Czech Republic and Portugal) and three non-members of the same (United Kingdom, Ukraine and Russia), as well as that of twelve non-European countries considered exemplary (United States, Canada, Australia, India, China, Thailand, Israel, Nigeria and South Africa); in particular, legislative sources and legal databases were drawn upon, in order to draw a comparison with the Italian legislation currently in force and map out the evolution of the Italian case law on the basis of the judgments issued by Italian courts, including the Constitutional and Supreme Courts and the European Court of Human Rights (ECHR); search engines such as PubMed and Google Scholar were also used, by entering the keywords “surrogacy” and “surrogate motherhood”, to find scientific articles concerning assisted reproduction techniques with a close focus on surrogacy. Results: SM is a prohibited and sanctioned practice in Italy; on the other hand, it is allowed in other countries of the world, which leads Italian couples, or couples from other countries where it is banned, to often contact foreign centers in order to undertake a MAP pathway which includes surrogacy; in addition, challenges may arise from the legal status of children born through surrogacy abroad: to date, in most countries, there is no specific legislation aimed at regulating their legal registration and parental status. Conclusion: With reference to the Italian context, despite the scientific and legal evolution on the subject, a legislative intervention aimed at filling the regulatory gaps in terms of heterologous MAP and surrogacy has not yet come to fruition. Considering the possibility of “fertility tourism”, i.e., traveling to countries where the practice is legal, as indeed already happens in a relatively significant number of cases, the current legislation, although integrated by the legal interpretation, does not appear to be effective in avoiding the phenomenon of procreative tourism. Moreover, to overcome some contradictions currently present between law 40 and law 194, it would be appropriate to outline an organic and exhaustive framework of rules, which should take into account the multiplicity of interests at stake, in keeping with a fair and sustainable balance when regulating such practices.
... If surrogacy takes place in a society that accepts this as a necessary practice for some, it is possible that actual surrogates may be better supported and less stigmatized [46]. ...
... In any case the forensic psychiatrist must never participate in any acts of torture or similar handlings that are contrary to human rights. This view is supported by different authors who treated the ethical aspects in the special issue of World Psychiatry [5,[37][38][39]. ...
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Background: Forensic psychiatry is a particular subspecialty within psychiatry, dedicated in applying psychiatric knowledge and psychiatric training for particular legal purposes. Given that within the scope of forensic psychiatry, a third party usually intervenes in the patient-doctor relationship, an amendment of the traditional ethical principles seems justified. Results: Thus, 47 articles, two book chapters and the guidelines produced by the World Psychiatric Association, the American Association of Psychiatry and the Law, as well as by the Royal Australian and New Zealand College of psychiatrists, were analyzed. The review revealed that the ethics of correctional forensic psychiatry and those of legal forensic psychiatry do not markedly differ from each other, but they are incongruent in terms of implementation. Methods: In an effort to better understand which ethical principles apply to forensic psychiatry, a chronological review of the literature published from 1950 to 2015 was carried out. Conclusion: The ethics of correctional forensic psychiatry are primarily deontological. The principle of justice translates into the principle of health care equivalence, the principle of beneficence into providing the best possible care to patients, and the principle of respect of autonomy into ensuring confidentiality and informed consent. The ethics of legal forensic psychiatry are rather consequentialist. In this latter setting, the principle of justice is mainly characterized by professionalism, the principle of beneficence by objectivity and impartiality, and the principle of respect of autonomy by informed consent. However, these two distinct fields of forensic psychiatry share in common the principle of non maleficence, defined as the non collaboration of the psychiatrist in any activity leading to inhuman and degrading treatment or to the death penalty.
... According to Golombok [9] there are studies on the psychic development of children born by surrogacy which established no difference between them and those conceived naturally. Sharma [15] suggest that there is a danger for the psychic development of the existing children of the surrogate mother. They are afraid of being relinquished to other people and can hardly understand why the surrogate child is not their brother or sister. ...
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This is the first study of the attitude of Bulgarian people towards the allowing of altruistic surrogacy which is prohibited in Bulgaria. This study used an online survey which was active during one year (July 2010-June 2011) and which was answered by 951 respondents between 18-65 years of age. The majority of them (87%) are young people between 18-43 years. The respondents are men and women with secondary, university and medical university education from the capital and the countryside. They have different marital status. The data were treated with statistical package SPSS 16. The link between the demographic characteristics (gender, age, education, marital status and place of residence) and the answers of the respondents was identified. The majority of the respondents (73%) think that the altruistic surrogacy must be allowed in Bulgaria and the main supporters are the women and the residents in the countryside – married or living with partner. Only 38% of the respondents mostly divorced middle aged persons accept the access of same sex couples to surrogacy. The majority of the respondents (53%) fear that the surrogacy may transform poor women into incubators for babies. This opinion is shared by the men, by the youngest and the oldest respondents and by the unmarried persons.
... The conflicting interests between the child, the surrogate mother and those having initiated the surrogacy arrangement, are well-known factors in surrogacy arrangements. However there is no international consensus about whose interest that should have priority, even if the child's security is of primary concern (Sharma, 2006). The International Federation of Social Workers (2012) has suggested that the particular challenge of transnational surrogacy is how to balance commissioning parents' right to impartial advice with protection from exploitation and harm of (1) potential donors and surrogatesthe latter almost invariably young women in the world's least wealthy countriesand (2) any child who may be conceived or affected by the procedure. ...
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There are few studies on how social workers deal with cases regarding transnational surrogacy. Our study intends to contribute to filling this gap. In Sweden, surrogacy as an assisted reproductive technology method is not permitted. As a result, many prospective parents have turned abroad, mainly to India, for surrogacy. There are no laws regulating surrogacy in Sweden, and difficulties have arisen in establishing legal parenthood when the parents return with the child. This qualitative interview study with social workers found that legal uncertainty and ethical issues surrounded their handling. With no guidelines, the constructions of parenthood will continue to depend on individual social workers’ conflicting views on how to best meet the surrogate mother’s interest and the best interest of the child. Regulation is thus needed to better protect those involved and minimize the contingent aspects of legal handling by individual officials.
Article
Modern advances in assisted reproduction technology (ART) have disrupted the traditional concept of parenthood. Every year, thousands of people travel abroad from their home countries in order to circumvent restrictive legislation or to benefit from lower fees. In a similar context, surrogacy raises many bioethical and legal issues. The present paper will address the main questions arising from the debate prompted by surrogacy, focusing on international legislation, and looking critically at the different legislative models. As a result of worldwide heterogeneity in policies, legal approaches, and access to ART throughout the world, a growing number of would-be parents are seeking treatment abroad. The lack of regulation on cross-border surrogacy in low income countries can undermine the dignity and rights of women as even modest economic compensation determines a significant purchasing power. The international effort should be aimed at creating an international regulatory framework from which guidelines useful to national governments derive. An international agreement would provide a solid legal basis for the protection of surrogate women. In order to limit the economic interests linked to procreative tourism, so as to truly protect global health and women's rights, legislative uniformity is therefore necessary between the various states.
Chapter
The continuing increase in babies born via third party assisted conception (AC) and surrogate motherhood across the world shows the success of -and medical and social demand for—third party interventions in family building. However, with the increasing use of such interventions world-wide, commercialisation and commodification have proliferated. This in turn has led to inequality in access to AC services, in choice of third party input, and in questionable human rights and psychosocial welfare issues. Transitioning to parenthood using third party AC and surrogate motherhood, in addition to requiring equality in access, also demand accuracy of birth and genetic information. In the absence of accurate record keeping, continuing practices of anonymity, and marginalization of the contribution of donors and surrogates, psychological, social, health and ethical questions are raised for donors, recipients and potentially for (genetic, gestational) part, half and full offspring, siblings and others in the extended family such as grandparents.
Chapter
The historical context and terminology used to fit unusual reproduction via surrogate motherhood into traditional models of the family are introduced in this chapter. Conflicting definitions are highlighted and attempts to minimise difference in favour of poorly working realities are shown not to be beneficial in the long term. Family differences have a legitimate place in society as evidenced by innovative fertility treatment options and solo, same-sex and older peoples’ lifestyle choices. The different types of surrogacy, reasons for using surrogacy and the major issues for those involved are discussed. Inequalities, human rights, exploitation and the commodification of children are also shown to exist. Although most of the research is concerned with psychosocial issues, this chapter also draws on research from related disciplines.
Chapter
The past decade has witnessed the birth of new reproductive technologies (such as in vitro fertilization) and the application of older technologies to new situations (such as the use of artificial insemination to facilitate surrogate motherhood). The new and old technologies1 have been the subject of a vast discussion in the legal and ethical literature, but little attention has been paid to the feminist perspective in the majority of books and articles.2 However, there is a growing separate literature addressing alternative reproduction written by feminists themselves.3
Article
The original research on 1st-time mothers is presented, along with information from the author's new research with mothers having 2nd and subsequent children. The . . . development of theory is intertwined with the "voices" of women describing the emotions experienced in pregnancy in their own words, making this a . . . resource for students, researchers, and clinicians in maternal–child health. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
The Kentucky Supreme Court in Surrogate Parenting Associates v. Commonwealth ex rel Armstrong 1986 Available from
  • The American
  • Surrogacy Center
  • Inc
The American Surrogacy Center, Inc. The Kentucky Supreme Court in Surrogate Parenting Associates v. Commonwealth ex rel Armstrong 1986. Available from: http://www.surrogacy.com/ legals/map.html.
Legal overview of surrogacy laws by state
  • The American Surrogacy
  • Center
  • Inc
The American Surrogacy Center, Inc. Legal overview of surrogacy laws by state. Marietta (GA) TASC; 1997. Available from: http:// www.surrogacy.com/legals/map.html.