SURROGACY

Reproductive Technologies and the Law

UUK4763

Definition

Where one woman carries a child for another woman with
the intention that the child should be handed over after birth
(Warnock Report).

Why surrogacy?

i.To fulfill the desire of the male partner of the infertile woman
to have his on biological child;

ii.Women who do not want to undergo pregnancy due to
various reasons such as health, career etc.




Types of Surrogacy

Full
Surrogacy
Donor
surrogacy
Partial
Surrogacy
Types of surrogacy: (1) Full Surrogacy
Ovum from
surrogate
Sperm from
commissioning
father
Inseminated
into the
womb of
surrogate
mother
Types of surrogacy: (2) Partial Surrogacy

Ovum
from
wife
Sperm
from
husband
Fertilised
using IVF
Resulting embryos
implanted into
surrogates womb
Also known as
IVF Surrogacy
Types of surrogacy: (3) Donor Surrogacy
Donors
ovum
Donors
sperm
Embryos
implanted
into
surrogates
womb
Child adopted by
commissioning
parents
The Issues
Issues
Religion
Legal
Ethical/
moral
Fertility treatment: surrogacy in Malaysia
Surrogacy is when another woman carries and gives birth to a
child for you. Though it can be an emotionally intense and
legally complex arrangement, it is growing in popularity in
many countries. In Malaysia, too, surrogacy is believed to be
increasingly popular as a way for infertile couples to have a
baby. However, there are no reliable statistics about
surrogacy in Malaysia as they are private arrangements.
There are, as yet, no civil laws addressing the use of
surrogates to have a baby. However, religious authorities have
issued a fatwa making surrogacy haram for Muslims.

http://www.babycenter.com.my/a4099/fertility-treatment-
surrogacy-in-malaysia#ixzz2voJojmdK

Single mums opt to become
surrogate mothers for a fee
MANY financially-strapped single mothers in Malaysia have
become surrogate mothers for childless couples from
Singapore.

China Press reported that the women were willing to do it for
a fee. The report said that many childless couples in Singapore
were willing to pay S$40,000 (RM100,000) for such services,
even if the surrogate mothers name was listed as the babys
mother on the birth certificate.

The Star Online, 28/10/2013
The Law: Malaysia

No direct law on surrogacy;

Refer to Section 12 MMC Guideline:

the above practice is not acceptable to most
of the major religions in this country. Such a
surrogate pregnancy can potentially lead to
many legal dilemmas for the persons involved.


The Law: Malaysia

S. 112 Evidence Act
A child born during
the continuance of a
valid marriage is
deemed as the
legitimate child of
the man.
Implication = the
surrogates
husband shall be
deemed as the
father of the
child!
The commissioning father
and his wife has No legal
rights!
The Law: Malaysia

S. 87 LRMDA
1976
S. 2 = defines child as
child of the marriage
If the surrogate
mother is married,
she is deemed as
the mother of the
child; her husband
as the father
If the surrogate
mother is unmarried,
the child shall be
deemed as an
illegitimate child!
The Law: Malaysia
However, the commissioning parents may apply to legally adopt
the child;

But, what if the surrogate mother fails to honour the agreement
made and refuses to give up the child to the commissioning
parents?

Can the contract be legally enforceable in Malaysia?
[s.24(e)(e)Contract Act)


The Law: United Kingdom
Commercial surrogacy is PROHIBITED under The Surrogacy
Arrangements Act 1985; (i.e. contract never existed & the
child is the child of the surrogate.)

S. 33 HFEA 2008 the woman who is carrying the child is the
mother..; i.e. the surrogate mother is deemed as the
mother.

Legal parenthood can be transferred to the commissioning
parents through adoption.


The Islamic View
Surrogacy is PROHIBITED in Islam;

Reason : To protect one of the essential values (objective of
Shariah) i.e. progeny/ nasab;

Thats why Islam only allows procreation within a valid
marriage;

Refer to the National Fatwa issued:
Haram guna ibu tumpang walaupun sperma dan ovum
diambil daripada suami/isteri kerana ia akan menyebabkan
berlakunya kekeliruan nasab anak tersebut.
The Christian View
The U.S. bishops address this question in the fourth edition of the
USCCB text Ethical and Religious Directives for Catholic Health Care
Services:

Directive 38: When the marital act of sexual intercourse is not able
to attain its procreative purpose, assistance that does not separate
the unitive and procreative ends of the act, and does not substitute
for the marital act itself, may be used to help married couples
conceive.

Directive 41: Homologous artificial fertilization (that is, any
technique used to achieve conception using the gametes of the two
spouses joined in marriage) is prohibited when it separates
procreation from the marital act in its unitive significance (e.g., any
technique used to achieve extra-corporeal conception).

The Hindu View

Dr. Anand Kumar, Ph.D., Chairman of Hope Infertility Clinic
and Research Foundation opines:

Hindus have never seriously debated assisted reproduction
because of their belief in karma, which preordains the kind of
life an individual would lead after birth. There is no conflict
between Hinduism and assisted reproduction, which is
generally accepted as a form of treatment and not an
infringement on religious beliefs.

He believes that surrogacy meets all three pillars of medical
ethics: autonomy (allowing people to decide for themselves);
beneficence (doing good); and non-maleficence (doing no
harm).
The Buddhist View

Buddhists believe that whenever life begins it is special no
matter the means. They have very little tolerance for being
childless due to the idea in traditional Chinese culture that a
family without a child is less than perfect. Therefore, Buddhist
followers in general, believe that any intervention in nature is
undesirable but is tolerated more than being childless. Asian
societies place an extreme importance on having a child, with
most childless couples ending in divorce. While they do not have
a moral issue with infertility treatments such as IVF and gamete
donations, they do not condone compensating a surrogate.
Buddhists believe that having a child is extremely important and
if a couple chooses to complete their family with ART it will not
compromise their faith.

Exploring Religious Aspects of Infertility Treatments
by: Mindy Berkson



Ethical/Moral Issues
Fetal-
maternal
bond
(1)
Harm to
surrogate
mother
(2)
Welfare of
the child
(3)
Issue 1: Fetal-Maternal Bond
Surrogacy destroys the essential bond between mother and
child during pregnancy and after birth;

Scientific evidence suggests that such a relationship/bonding
is crucial to the childs development;

E.g. studies pointed out that the interactions/contact between
mother and child such as skin-to-skin, eye-contact or
breastfeeding releases oxytocin that enhances physiological
process that help babies to develop;

Also, from the moment of birth to a certain period of time,
evidence shows that babies tend to form cognitive
attachments through interaction with the gestational mother.

Issue 1: Fetal-Maternal Bond
Additional issue: 3 possible mothers


Mother???
Issue 2: Harm to Surrogate Mothers

Love for
the child
Exploitation
Risks of
pregnancy
Issue 2: Harm to Surrogate Mothers

2.1. Love for the child

Studies conducted revealed that surrogate mothers usually
developed a strong bond with the child she has carried;

Giving up the child caused severe psychological pain for her;

Refer the issue on maternal-fetal relationship;

Studies show that to reduce the pain for having to give up the
child, surrogate mothers tend to think themselves as OBJECTS.
Issue 2: Harm to Surrogate Mothers
Q:
The question of whether the suffering of a childless woman
is greater than that of the gestational surrogate, who
abandons her baby, is solved when the surrogate mother is
de-personalised, and looked and looked upon solely as a
womb for rent.

[Rosalie Ber, Ethical Isses in Gestational Surrogacy ,
Theoretical Medicine & Bioethics, 21:153-169]
Issue 2: Harm to Surrogate Mothers

Beneficence
Doing good to the
infertile woman
Non-
malfeasance
Must prevent harm to
surrogate mothers
Issue 2: Harm to Surrogate Mothers
2.2. Risks of Pregnancy

Pregnancy carries risks to the womans health;

For surrogate mothers, these risks are undertaken for
nothing i.e. she will not be able to keep and care for the
child.

Q: Should such a risks be compensated with money? Will that
amount to exploitation on women?
Issue 2: Harm to Surrogate Mothers
2.3. Exploitation on Women

Feminists argue that women should be given the autonomy to
do whatever they wishes with their body;

If men can sell their sperm, why cant women rent their
womb?

However, opponents argue that surrogacy exploits women;

Warnock Report: Surrogacy is akin to treating womens uterus
as mere incubator for other peoples child.
Issue 2: Harm to Surrogate Mothers
Also, what is there is a dispute between surrogate mothers
and commissioning parents?

E.g. if prenatal diagnosis indicates that the child she is carrying
is deformed and the commissioning parents request that the
child be aborted?

Here, there might be a conflict in moral values held by the
surrogate mother and the commissioning parents.

Can the surrogate mother refuse the abortion?
Issue 3: Welfare of the Child

Risks of
custody
battle
Risks of
abandonment if
does not fulfill
parental
expectations.
Conclusion
Solution? Should surrogacy be permitted?

Or, alternatives:


Womb
Transplant
Ectogenesis