Search results for: cross-border surrogacy

Authors: Yingyi Luo

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Cross-border commercial surrogacy, where Australians travel overseas to access reproduction through a surrogate mother, is an increasing phenomenon. This paper focuses on the role of Australian surrogacy facilitators, including lawyers, non-for-profit agents, fertility counselors, who act as intermediaries managing cross-border surrogacy arrangements in Australia. It explores the extent to which surrogacy facilitators are concerned with the human rights of children born through cross-border surrogacy, surrogate mothers in developing countries, and intended parents. Commercial surrogacy is a matter that is often cast in the language of human rights. This paper will contribute to an in-depth understanding of the dynamics between intended parents, surrogates, and surrogacy facilitators by adopting a human rights framework to inform data analysis regarding the role of facilitators. The purpose of this research is to inform debate and discussion on law reform related to surrogacy. This paper presented here centers on interviews with surrogacy facilitators in Australia and non-participant observations in Australia to generate thick, empirical data about the fertility industry. The data showed that the process of facilitating surrogacy arrangements had prompted facilitators to form a view on human rights as they applied to their works. Although facilitators claimed that the right of intended parents, surrogate mothers, and children were all taken into consideration, the researcher observed that the commercial surrogacy contracts described by these facilitators favored the interests of intended parents with the baby acting as their unique selling point. The interests and needs of surrogate mothers were not prioritized in the views or actions of facilitators. The result was a commercial transaction that entailed the purchase, through cross-border surrogacy, of a child, as a commodity, by relatively affluent intended parents from disadvantaged surrogate mothers through unfair contracts.

Keywords: cross-border surrogacy, facilitators, human rights, surrogacy

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Authors: Ronli Sifris

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The last Australian Parliamentary inquiry into surrogacy took place in 2016. Since then, a number of countries have reviewed their surrogacy laws, including countries such as New Zealand and the United Kingdom, which traditionally have invoked similar legal approaches to Australia on a broad range of issues. The time is ripe to reform Australia’s surrogacy laws with a view to putting in place a system that best protects the rights of all parties to a surrogacy arrangement, and especially the rights of the child. There are two specific, linked issues which tend to be particularly contentious in the surrogacy context. The first relates to legal parentage. There are questions around whether the surrogate or the intended parents should be deemed the legal parents of a child born through surrogacy and what should be the process for any transfer of parentage. The second key issue relates to compensation and whether a surrogate should be compensated for the reproductive labour inherent in conceiving, gestating, and birthing a child. This paper will invoke a comparative analysis with a view to considering how different countries are regulating surrogacy and which approach best protects the rights all parties involved in the surrogacy arrangement, especially the rights of the children born through surrogacy. The specific countries to be considered are Australia, Canada, and California (United States). I have selected these countries for the following reasons: Australia is the jurisdiction where the author is based, it is, therefore, the jurisdiction with which she has the most familiarity. It allows altruistic surrogacy only and post-birth parentage orders in favour of the intended parents of children born through altruistic surrogacy California, as a jurisdiction allowing for compensated surrogacy and pre-birth parentage orders in favour of the intended parents, sits at the other end of the spectrum to Australia thereby providing an interesting point of comparison. Canada sits somewhere in the middle; it ostensibly allows only altruistic surrogacy, but in practice, many aspects of the Canadian process resemble compensated surrogacy. In addition to conducting a comparative analysis with other countries, the paper will also consider international human rights law as its overarching framework for determining the approach that best protects the rights of a child born through surrogacy. Particular attention will be paid to the United Nations Convention on the Rights of the Child as the key children’s rights treaty. The European Court of Human Rights will also be extensively considered as it has decided a number of cases relating to the rights of children born through surrogacy.

Keywords: surrogacy, children’s rights, australia, compensation, parentage

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Authors: Priya Sepaha

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Commercial Surrogacy refers to a contract in which a woman carries a pregnancy for intended parents. There are two types of surrogacy; first, Traditional Surrogacy, in which, sperm of the donor or father is artificially inseminated in the women and carries the fetus till birth. Second, Gestational Surrogacy, in which the egg and sperm of the intended parent are collected for artificial fertilization through In Vitro Fertilization (IVF) technique and after the embryo formation, it is transferred into the womb of a surrogate mother with the help of Assisted Reproductive Technique. Surrogacy has become so widespread in India that it has now been nicknamed the "rent-a-womb" capital of the world due to relatively low cost and lack of stringent regulatory legalisation. The legal aspects surrounding surrogacy are complex, diverse and mostly unsettled. Although this appears to be beneficial for the parties concerned, there are certain sensitive issues which need to be addressed to ensure ample protection to all stakeholders. Commercial surrogacy is an emerging business and a new means of human trafficking particularly in India. Poor and illiterate women are often lured in such deals by their spouse or broker for earning easy money. Traffickers also use force, fraud, or coercion at times to intimidate the probable surrogate mothers. A major chunk of money received from covert surrogacy agreement is taken away by the brokers. The Law Commission of India has specifically reviewed the issue as India is emerging as a major global surrogacy destination. The Supreme Court of India held in the Manji's case in 2008, that commercial surrogacy can be permitted with certain restrictions but had directed the Legislature to pass an appropriate Law for governing Surrogacy in India. The draft Assisted Reproductive Technique (ART) Bill, 2010 is still pending for approval. At present, the Surrogacy Contract between the parties and the ART Clinics Guidelines are perhaps the only guiding force. The Immoral Trafficking Prevention Act (ITPA), 1956 and Sections 366(A) and 372 of the Indian Penal Code, 1860 are perhaps the only existing laws, which deal with human trafficking. Yet, none of these provisions specifically deal with the serious issue of trafficking for the purpose of Commercial Surrogacy. India remains one of the few countries that still allow commercial surrogacy. International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par in order to ensure that the concerns and interests of parties involved get amicably resolved. There is urgent need to pass a comprehensive law by incorporating the latest developments in this field in order to make it ethical on the one hand and to curb disguised human trafficking on the other.

Keywords: business, human trafficking, legal, surrogacy

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Authors: Yingyi Luo

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Cross-border surrogacy is seen by many as a market in which women are bought and sold commodities at risk of trafficking. A surrogate can be framed as either a fully acknowledged subject, with whom intended parents engage in cross-border surrogacy—or as a tool utilized by intended parents and surrogacy facilitators in the furtherance of their own objectives. In order to identify which frame prevails, this paper applies subjectivity theory to an empirical study of cross-border surrogacy facilitated by facilitators in Australia analysing interviews with surrogate agents, counsellors and lawyers, and observations at trade show. The aim of the paper is to advance understanding of the dynamics of the relationship between intended parents, surrogates, and surrogacy facilitators by collecting new data and applying unique framework. As dominant players, surrogacy facilitators have a significant impact on determining the nature of cross-border surrogacy. However, little is known concerning the manner in which facilitators influence the inter-subjectivity between surrogate mothers and intended parents. Thus, this paper intends to identify how facilitators depict surrogate mothers, the degree to which their perspectives bear upon both the subjectivity of the surrogate mother and the relationship of intended parents with surrogate mothers. For the purpose of introducing and developing this framework in the context of cross-border surrogacy, this paper borrows from the work of theorists not often mentioned in bioethics, including Jacques Lacan, Marco Cavallaro, Michel Foucault, and others. It also applies the concept of 'the gaze' along with the dynamic of 'self' and 'other' to the cross-border surrogacy arrangement. Applying the concept of the gaze can provide a new way to interpret the power dynamic that plays out among surrogacy facilitators, intended parents, and surrogates within the commercial surrogacy arrangement and how the subjectivity is produced through the power. Viewing the relationships between the players in cross-border surrogacy through the lens of gaze theory, this paper finds that, in cross-border surrogacy, due to the structural power imbalance, affluent intended parents and surrogacy facilitators are possessors of the gaze, while surrogate mothers are under the thrall of the gaze. Specifically, facilitators frame surrogate mothers' reproductive abilities as commodities that intended parents can purchase to fulfil their urgent need to have children and experience full subjectivity, and they take a cut of the money that paid by intended parents. Therefore, commodification of the body results in degrading a surrogate mother (the object), reifying her as no more than a walking womb (the other), a process which is highly detrimental to the self of surrogate mothers. This relationship, formalized through contractual means, allows intended parents and facilitators to take advantage of surrogate mothers in the furtherance of their own objectives. This argument is enriched by new data from interviews and observations that provide nuance to this understanding of inter-subjectivity.

Keywords: cross-border surrogacy, facilitators, self, surrogate mothers

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Authors: Neha Tiwari

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Rights are prerequisite for individuals to pursue their aims and enrich themselves. Laski has said rights are, ‘conditions of social life without which no man can seek himself at his best.’ However with superior technology, rights of many individuals are at stake as well. One such sufferer is the babies born out of the practice of commercial surrogacy. Commercial surrogacy has emerged as the most viable option for the childless couples. The practice has garnered lot of debate in both academia and media. Some argue for a complete ban and some for strict rules and regulation. Most of the time the debate is regarding the rights of the surrogate, something which we cannot ignore. Equally important are the rights of the children born out of such arrangements. However, not much attention is being paid to them. Recently, a controversy emerged when a surrogate gave birth to twins. One of the babies, Gammy born with down syndrome was left behind by the couple. Gammy could die because his poor Thai surrogate mother may not be able to pay for his treatment. Even if he survives, he will never know his twin sister as her identity would never be disclosed. This is just one of many such cases where the future of such babies is being played with. If the rights of these children are not taken care of many of them will have to bear the brunt of society's ignorance and perhaps live with a scar which won't heal in their lifetime.

Keywords: babies, commercial surrogacy, rights, technology

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Authors: Dalia Bhattacharjee

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Motherhood as an institution is considered as sacred. Reproduction and motherhood have always been a concern of the private space of home. However, with the emergence of technologies like the Assisted Reproductive Technologies (ARTs), this intimate area has moved into the public. A woman can now become a mother with artificial insemination done by expert medical professionals in a hospital. With this development, the meanings of motherhood and childrearing have altered. Mothers have been divided into ‘ovarian mothers’ (those who provide the eggs), ‘uterine mothers’ (those who carry out the pregnancy and give birth), and ‘social mothers’ (those who raise the child). Thus, the ART business deconstructs motherhood by defining who the biological mother is and who the social mother is and who – despite contributing parts or processes of her body to the life of the child is not a mother, but merely the donor of a product, be it the egg or the womb, which is owned by those who are favoured by the contract. The industry of commercial surrogacy in India has been estimated to be of $2.3 billion as of 2012. There are many women who work as surrogate mothers in this industry for the exchange of money. It runs like a full-fledged business guided by a highly profit oriented capitalist market. The reproductive labourers are identified as mere womb renters or victims and not as active agents in such arrangements. Such a discourse undercuts the agency exercised by the women. The present study is an ethnography into the commercial surrogacy industry in India. This journey furthers the understanding of the dilemmas faced by the reproductive labourers. The paper emphasizes on the experiences of reproduction and motherhood outside the private space of the home in the commercial surrogacy industry in India, and, argues that this multiplicity of experiences need much focus and attention, where, the consumer becomes ‘the’ citizen and the women workers continue to be victims. The study draws on the narratives of the reproductive labourers, who remain at the center, and yet, at the periphery of such arrangements. This feminist ethnography is informed by the feminist standpoint theory to account for and analyse these varied experiences which further the understanding of the dilemmas faced by the reproductive labourers.

Keywords: commercial surrogacy, ethnography, motherhood, standpoint theory

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Authors: Jutharat Attawet, Alex Y. Wang, Cindy M. Farquhar, Elizabeth A. Sullivan

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Background: Adverse maternal and perinatal outcomes of multiple pregnancies resulting from multiple embryo transfers (ET) has become significant concerns. This is particularly relevant for gestational carriers since they usually do not have infertility issues. Single embryo transfer (SET) therefore has been encouraged to assist reproductive technology (ART) practice in order to reduce multiple pregnancies. Objectives: This systematic review aims to investigate the pregnancy and birth outcomes of SET and multiple ET in surrogacy arrangements. Search methods: This study is a systematic review. Electronic databases were searched from CINAHL, Medline, Embase, Scopus and ProQuest for studies from 1980 to 2017. Cross-references and national ART reports were also manual searchings. Articles without restriction of English language and study types were accessed. Carrier cycles involving in SET and multiple ET were identified in database searching. The main outcome measures including clinical pregnancy, live delivery and multiple deliveries per gestational carrier cycle were compared between SET and multiple ET. Mantel-Haenzel risk ratios (RRs) with 95% confidence intervals (CIs), using the numbers of outcome events in SET and multiple ET of each study were calculated suing RevMan5.3. Outcomes: The search returned 97 articles of which 5 met the inclusion criteria. Approximately 50% of carrier cycles were transferred a single embryo and 50% were transferred more than one embryo. The clinical pregnancy rate (CPR) was 39% for SET and 53% for multiple ET, which was not significantly different with RR = 0.83 (95% CI: 0.67-1.03). The live delivery rate was 33% for SET and 57% for multiple ET which was not significantly different with RR = 0.78 (95% CI: 0.61-1.00). The multiple delivery rate per carrier was greater risks in the multiple ET carrier cycles (RR =0.4, 95% CI: 0.01-0.26). There were 104 sets of twins (including one set of twins selectively reduced from triplets to twins) and 1 set of triples in the multiple ET carrier cycle. In the SET carrier cycles, there were 2 sets of twins. Significance of the study: SET should be advocated among surrogate carriers to prevent multiple pregnancies and subsequent adverse outcomes for both carrier and baby. Surrogacy practice should be reviewed and surrogate carriers should be fully informed of the risk of adverse maternal and birth outcome of multiple pregnancies due to multiple embryo transfers.

Keywords: assisted reproduction, birth outcomes, carrier, gestational surrogacy, multiple embryo transfer, multiple pregnancy, pregnancy outcomes, single embryo transfer, surrogate mother, systematic review

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Authors: Tamara Roma, Emma Capulli

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Pregnancy and fertility, in other words, reproduction, has become, in the last half of the century, increasingly and globally controlled, medicalized, and regulated. The reflection proposed starts from the consequences of the inscription of reproduction into the neoliberal economic paradigm. The new biotechnologies developments have raised a new patriarchal justification for State’s control of uterus bodies and a new construction of knowledge about reproductive health. Moral discussion and juridification remove reproduction and non-reproduction from their personal and intimate context and frame them under words like “duties”, “rights”, “family planning”, “demography”, and “population policy”, reinvent them as “States business” and ultimately help to re/confirm a specific construct of fertility, motherhood, and family. Moreover, the interaction between the neoliberal economy and medical biotechnologies brought about a new formulation of the connection between feminine generative potential and value production. The widespread and contemporary debates on Medically Assisted Reproduction (MAR), surrogacy and abortion suggest the need for a “feminist/queer global bioethical discourse” capable of inserting itself into the official bioethical debate characterized by the traditional dichotomy of laic bioethics/Catholic bioethics. The contribution moves from a feminist bioethics perspective on reproductive technologies to introduce a feminist/queer global bioethics point of view on reproductive health. The comparison between reproduction and non-reproduction debates is useful to analyze and demonstrate how restrictive legislations, dichotomic bioethical discussion and medical control confirm and strengthens gender injustice in reproductive life. In fact, MAR, surrogacy, and abortion restrictions stem from a shared social and legal paradigm that depends on traditional gender roles revealing how the stratification of reproduction is based on multiple discrimination along the lines of gender, race, and class. In conclusion, the perspective of feminist/queer global bioethics tries to read the concept of universal reproductive justice, introducing an original point of view on reproductive health access.

Keywords: queer bioethics, reproductive health, reproductive justice, reproductive technologies

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Authors: Kaushiki Sanyal, Rajesh Chakrabarti

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In India, on average, about 60 Bills are passed every year in both Houses of Parliament – Lok Sabha and Rajya Sabha (calculated from information on websites of both Houses). These are debated in both Lok Sabha (House of Commons) and Rajya Sabha (Council of States) before they are passed. However, lawmakers rarely use empirical evidence to make a case for a law. Most of the time, they support a law on the basis of anecdote, intuition, and common sense. While these do play a role in law-making, without the necessary empirical evidence, laws often fail to achieve their desired results. The quality of legislative debates is an indicator of the efficacy of the legislative process through which a Bill is enacted. However, the study of legislative debates has not received much attention either in India or worldwide due to the difficulty of objectively measuring the quality of a debate. Broadly, three approaches have emerged in the study of legislative debates. The rational-choice or formal approach shows that speeches vary based on different institutional arrangements, intra-party politics, and the political culture of a country. The discourse approach focuses on the underlying rules and conventions and how they impact the content of the debates. The deliberative approach posits that legislative speech can be reasoned, respectful, and informed. This paper aims to (a) develop a framework to judge the quality of debates by using the deliberative approach; (b) examine the legislative debates of three Bills passed in different periods as a demonstration of the framework, and (c) examine the broader structural issues that disincentive MPs from scrutinizing Bills. The framework would include qualitative and quantitative indicators to judge a debate. The idea is that the framework would provide useful insights into the legislators’ knowledge of the subject, the depth of their scrutiny of Bills, and their inclination toward evidence-based research. The three Bills that the paper plans to examine are as follows: 1. The Narcotics Drugs and Psychotropic Substances Act, 1985: This act was passed to curb drug trafficking and abuse. However, it mostly failed to fulfill its purpose. Consequently, it was amended thrice but without much impact on the ground. 2. The Criminal Laws (Amendment) Act, 2013: This act amended the Indian Penal Code to add a section on human trafficking. The purpose was to curb trafficking and penalise traffickers, pimps, and middlemen. However, the crime rate remains high while the conviction rate is low. 3. The Surrogacy (Regulation) Act, 2021: This act bans commercial surrogacy allowing only relatives to act as surrogates as long as there is no monetary payment. Experts fear that instead of preventing commercial surrogacy, it would drive the activity underground. The consequences would be borne by the surrogate, who would not be protected by law. The purpose of the paper is to objectively analyse the quality of parliamentary debates, get insights into how MPs understand the evidence and deliberate on steps to incentivise them to use empirical evidence.

Keywords: legislature, debates, empirical, India

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Authors: Merav Meiron-Goren, Orna Braun-Lewensohn, Tal Litvak-Hirsh

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In recent years, there has been an increasing tendency towards separation and divorce in relationships. Nevertheless, many couples in a first marriage do not anticipate this as a probable possibility and do not make any preparation for it. Same sex couples establishing a family encounter a much more complicated situation than do heterosexual couples. Although there is a trend towards legal recognition of same sex marriage, many countries, including Israel, do not recognize it. The absence of legal recognition or the existence of partial recognition creates complexity for these couples. They have to fight for their right to establish a family, like the recognition of the biological child of a woman, as a child of her woman spouse too, or the option of surrogacy for a male couple who want children, and more. The lack of legal recognition is burden on the lives of these couples. In the absence of clear norms regarding the conduct of the family unit, the couples must define for themselves the family structure, and deal with everyday dilemmas that lack institutional solutions. This may increase the friction between the two couple members, and it is one of the factors that make it difficult for them to maintain the relationship. This complexity exists, perhaps even more so, in separation. The end of relationship is often accompanied by a deep crisis, causing pain and stress. In most cases, there are also other conflicts that must be settled. These are more complicated when rights are in doubt or do not exist at all. Complex issues for separating same sex couples may include matters of property, recognition of parenthood, and care and support for the children. The significance of the study is based on the fact that same sex relationships are becoming more and more widespread, and are an integral part of the society. Even so, there is still an absence of research focusing on such relationships and their ending. The objective of the study is to research the perceptions of same sex couples regarding the possibility of separation, preparing for it, conflict management and resolving disputes through the separation process. It is also important to understand the point of view of couples that have gone through separation, how they coped with the emotional and practical difficulties involved in the separation process. The doctoral research will use a qualitative research method in a phenomenological approach, based on semi-structured in-depth interviews. The interviewees will be divided into three groups- at the beginning of a relationship, during the separation crisis and after separation, with a time perspective, with about 10 couples from each group. The main theoretical model serving as the basis of the study will be the Lazarus and Folkman theory of coping with stress. This model deals with the coping process, including cognitive appraisal of an experience as stressful, appraisal of the coping resources, and using strategies of coping. The strategies are divided into two main groups, emotion-focused forms of coping and problem-focused forms of coping.

Keywords: conflict management, coping, legal recognition, same-sex relationship, separation

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