Fertility specialists recently met in Vancouver, Canada to discuss the fast-moving world of surrogacy and reproductive technologies. One of the speakers told a story about a Vancouver couple who arranged for a surrogate to carry their child (both sperm and egg were theirs), but learned the baby had downs syndrome. The couple decided they would not raise a “defective” child and asked the surrogate to abort the child. She eventually complied. End of story.

But what if she had refused? What then? The legal, moral and ethical morass of surrogacy cannot be understated and the exponential growth in surrogacy is staggering. Experts around the world agree that surrogacy is becoming mainstream in several countries, including the United States and India.

So, what are the laws that apply to surrogacy? The first problem is that many countries have no law dealing with these issues. In Canada the Assisted Human Reproductive Technology Act was passed into law in 2004. This legislation bans “commercial” surrogacy, which is when a surrogate is paid a fee, beyond her expenses, to bear and deliver a child.

There are reports the uncertainty of knowing what expenses can be paid and which cannot, has driven surrogacy underground or prompted couples or singles to turn to surrogacy-friendly countries like the US and India. British Columbia has announced its intention to implement legislation that would provide guidelines with respect to parentage issues arising from surrogacy and make surrogacy contracts unenforceable. Quebec’s Civil Code also provides that surrogacy contracts are null and void. If a couple know they cannot rely on the contract between them and their surrogate, why would they take a chance?

In the United States, each State may enact their own legislation. California and Florida are well-known as easy surrogacy venues. They say that at Camp Pendleton in California, military wives whose husbands are on active overseas duties, have turned surrogacy into a local cottage industry.

Nowhere, however, is surrogacy more prolific than in India, where fertility tourism has spawned hundreds of clinics to assist their 80% Caucasian clientele, including a large gay and lesbian contingent.

Elsewhere, in countries such as Saudi Arabia, surrogacy is outlawed, however, the first “uterus transplant” in the world recently took place in that country.

So what are the issues? Should women be paid? Is surrogacy a last resort for poor women? If women should be paid, what is the service worth? What if the pregnancy results in the death of the surrogate? What if the foetus does not survive? What if the surrogate wishes to carry a child the “parents” wish to abort? Should the surrogate play any role in the child’s life? What if the surrogate has supplied the egg, does that make a difference? What if the surrogate changes her mind about relinquishing the child? And on and on it could go.

The answers to some of these questions are necessarily ideological and thus, complex. Bioethicist Jacob Apell offers his view: “If men could serve as surrogates…they would be admired as entrepreneurs.” .

Lawdiva aka Georgialee Lang


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