Surrogate motherhood. This is the definition of a new form of marketing and a reduction that makes procreation and the relationship of love that binds parents to children into tangible property, through gestation for third parties in return for economic retribution, or, as a popular expression puts it, through the so-called “surrogate uterus.” The woman who holds in her womb, for nine months, the child fertilized in vitro and brings him/her into the world becomes a kind of “incubator” that must “produce” a good owned by others. Pregnancy is separated from maternity; and, on the natural and moral level, the relationship created between the mother and the child from the beginning of the formation of human life on, is denied and violated. This is the result of an exasperated individualistic and materialistic culture, founded on power and possession, based on the logic of control and domination. The increasing frequency this phenomenon, through indirect sources, as well as specialized clinics or professional agencies, is disturbing. From a study at Aberdeen University, involving five agencies specialized in maternity for rent on the international level, with offices in the U.S., India and Great Britain, shows that in the course of five years, from 2006 to 2010, the turnover has increased by 1000%. The greatest increase was recorded in low-income countries, because the costs are lower than for adoption and assisted reproduction and poor women are more willing to bear children for the rich.
On the legal level, commercial operators of the “service” assure: the mother who is pregnant and gives birth (technically called a “carrier”) has no rights; the parents named on the birth certificate will be those who transmitted the “genetic heritage.” Single people and homosexual couples are, however, required to have an additional “donor.” Moreover – says an indication – in some cases (for example, in Italy, where the law n° 40/2004 prohibits surrogate maternity) it’s possible for “problems arise” with respect to returning to the Country of residence. Here, then, the dramatic perspective of newborn babies presents itself: due to the legislative ambiguity, they find themselves not knowing who their parents are or with a multiplicity of parents (stateless or finally orphans, with a parental complex with up to 6 people, including contractors, surrogates and geneticists).
Surrogate motherhood, because of its mercantile character and the problems and ambiguities in the placement of the children, constitutes a violation of the human rights codified in the Charter of 1948 and thereafter—starting with the right to the truth about their origins, protected by the 1989 Convention on the Rights of the Child. There is a clear reduction of the principle, based on the law of nature and recognized in every culture and in every epoch, that “mater sempre certa est.” Without considering any of the even more alarming possible implications, there is a real risk of human trafficking. The European Parliament, in its Resolutions of 5 April 2011 on priorities and on the definition of a new political framework for the European Union in the field of combating violence against women, legislated against surrogate motherhood and:
20. Asks Member States to acknowledge the serious problem of surrogacy which constitutes an exploitation of the female body and her reproductive organs;
21. Emphasizes that women and children are subject to the same forms of exploitation and both can be regarded as commodities on the international reproductive market, and that these new reproductive arrangements, such as surrogacy, augment the trafficking of women and children and illegal adoption across national boarders.
The prospectus of the Permanent Office of the Hague Conference on Private International Law in 2012, indicated:
States that prohibit the surrogate uterus
France, Germany, Italy, Mexico (Queretaro), Sweden, Switzerland, some states in the U.S., and China (Mainland, excluding Hong Kong). In Austria and Norway, the sale of eggs is prohibited, and the prohibition on surrogate motherhood is a consequence, when the oocyte does not belong to the woman, who makes her uterus available. In these countries, the agreements on surrogate motherhood in effect elsewhere are not valid and, usually, the legal mother of the child is the woman who gives birth to him.
States where surrogate motherhood is not regulated
This is the case of States where the law does not provide for an explicit prohibition, and hence the surrogate mother cannot be forced to abide by the contract, i.e. to give up the newborn baby. Often, the agreements that expressly stipulate payments are forbidden and criminally punished there, although these States do encourage “maternity by substitution”—also called “altruistic,” i.e., with “reasonable” remuneration for the expenses incurred by pregnant women. This is so in Argentina, northern Australia, Belgium, Brazil, Canada, the Czech Republic, Ireland, Mexico, the Netherlands, Venezuela, in some U.S. states and in Japan (the Japan Society of Obstetrics and Gynecology adopted guidelines, in 2003, that disallow physicians be involved in surrogate motherhood, but there is no rule prohibiting it).
States where it is legally regulated
These States are divided into two groups: the first, which follows a process of approval of the contract of subrogation before the woman becomes pregnant. Usually explicit remuneration is prohibited, but donations to cover the expenses “reasonably” incurred during pregnancy are allowed. The surrogate mother is obliged to abide by the contract and violation is punished. These Countries are: Australia (Victoria, Western Australia and, by practice rather than by law, Australia Capital Territory), Greece, Israel (there is a monthly fee for “pain and suffering” in addition to the reimbursement of expenses, but in some cases rethinking is allowed), South Africa (if the surrogate mother is also the genetic one, she has two months to think about it), and, partially, New Zealand. In the second group, the conditions of the agreement are verified successively and, after birth, the child is transferred by the surrogate mother (and the partner) to the legal parental responsibility of the customers. The law does not require the fulfillment of the contract and the woman cannot be compelled to give up the child. This happens in: Australia (Queensland, New South Wales, South Australia), Canada (Alberta and British Columbia), China (Hong Kong SAR), and in Great Britain.
States with a permissive approach, where explicit payment is allowed
Contracts of gestation for third parties are allowed also to non-resident couples, on the basis of specific requirements. Usually, there are procedures for defining as legal parents one or both clients. The surrogate mother may or may not have the obligation to release the child, depending on the country. Surrogate motherhood is legalized in this way in: Georgia, India, Russia, Thailand, Uganda, the Ukraine, and 18 states in the U.S. In the United States, the procedure is regulated in detail.
An interesting report on the phenomenon and the problem with its multiple dimensions (anthropological-ethical-philosophical, cultural, social, legal, medical-sanitary and historical aspects) is presented in a progressively deepening series by the Catholic
newspaper “Avvenire”.
