Opinion 2.18 - Surrogate Mothers
"Surrogate" motherhood involves the artificial insemination of a woman who agrees, usually in return for payment, to give the resulting child to the child’s father by surrendering her parental rights. Often, the father’s infertile wife becomes the child’s adoptive mother. The woman bearing the child is in most cases genetically related to the child, though gestational surrogacy (in which the ovum is provided by the father’s infertile wife or other donor) is possible as well.
Ethical, social, and legal problems may arise in surrogacy arrangements. Surrogate motherhood may commodify children and women’s reproductive capacities, exploit poor women whose decision to participate may not be wholly voluntary, and improperly discourage or interfere with the formation of a natural maternal-fetal or maternal-child bond. Psychological impairment may occur in a woman who deliberately conceives with the intention of bearing a child which she will give up. In addition, the woman who has contracted to bear the child may decide to have an abortion or to refuse to relinquish her parental rights. Alternatively, if there is a subsequent birth of a disabled child, prospective parents and the birth mother may not want to or will be unable to assume the responsibilities of parenthood.
On the other hand, surrogate motherhood arrangements are often the last hope of prospective parents to have a child that is genetically related to at least one of them. In addition, most surrogacy arrangements are believed by the parties involved to be mutually beneficial, and most are completed without mishap or dispute. In light of the concerns expressed above, however, some safeguards are necessary to protect the welfare of the child and the birth mother. The Council believes that surrogacy contracts, while permissible, should grant the birth mother the right to void the contract within a reasonable period of time after the birth of the child. If the contract is voided, custody of the child should be determined according to the child’s best interests.
In gestational surrogacy, in which the surrogate mother has no genetic tie to the fetus, the justification for allowing the surrogate mother to void the contract becomes less clear. Gestational surrogacy contracts should be strictly enforceable (ie, not voidable by either party). (I, II, IV)