As we know, surrogacy consists of initiating a pregnancy in a woman other than the biological mother, with the intention that, when the child is born, he or she is to be handed over to the contracting parents. This usually takes place in couples with infertility issues, single people or even homosexual couples.

There are two differentiated types of surrogacy: altruistic and commercial. In the latter, the surrogate is paid to accept the pregnancy, while in the former that is much less frequent, acceptance is for any other reason, generally altruistic.

Surrogacy is known to present a multitude of medical, social and ethical problems, not least of which is knowing what to do when abnormalities of any type are detected in the unborn child that presupposes that it may suffer objective medical problems after birth, many of them serious. Should the pregnancy be continued? Should abortion be performed? And in this case, to whom does the responsibility fall? The woman carrying the child? Or the biological parents? In the event that the pregnancy must be continued, who should be responsible for the child born disabled?

These are all serious objective issues that very much need reflection, and, if possible, the establishment of objective action guidelines.

assessment in commercial gestationalAn interesting article published on this topic in Bioethics (29; 529-535, 2015).

Moral dilemma

The article discusses the difficult moral dilemma that arises for the contracting parents and the surrogate if a fetal abnormality is diagnosed: What should be done with the child? Who should make the decisions?

Although the dilemma appears in principle to correspond to the pregnant woman (the surrogate mother), should the contracting parents not also have a right to decide what to do, and if so, to what extent? In this respect, the authors establish a distinction between commercial and altruistic surrogacy.

In commercial gestational surrogacy, they contend that the surrogacy contract must clearly define who should legally take this decision, which should arguably lie with the parents who contract the surrogacy, the biological parents. In contrast, in altruistic surrogacy, the pregnant woman has the right to take the decision about what to do with the child, although the biological parents have the right to decide — should the surrogate decide to continue the pregnancy — whether or not they wish to adopt.

The study authors consider both strategies to be morally unacceptable, adding further difficulties to those already inherent to the practice of surrogacy itself. Accordingly, they propose what they call a “professional model”, which should recognize the rights and responsibilities of both parties while establishing legal and institutional support that allows good decision-making. In essence, the “professional model” defends the right of the surrogate to decide whether or not she wishes to have an abortion and, should she decide not to, the obligation of the parents to accept custody of the child.

Our ethical assessment in commercial gestational surrogacy

In our opinion, this is a compromise, which certainly leaves many questions unanswered.

1. The first, and possibly most important of these, is that commercial surrogacy is practiced in many cases in developing countries, in which the rights of the pregnant woman are unlikely to prevail; this is firstly due to the likely lack of education in these women, who would find it hard to foresee their legal rights in advance.

2. Secondly, due to the lack of legal regulations in these countries to lawfully regulate surrogacy. It is therefore not difficult to understand that they would be unlikely to respect the opinion of the surrogate if this is not in line with that of the contracting parents. Let’s not forget either the recent case in which a surrogate in a developing country was pregnant with twins, with the unfortunate circumstance that one of the fetuses had medical abnormalities. In that case, the contracting parents decided that the pregnancy should go to term and that they would keep the healthy child while the surrogate was left with the disabled one. There are no words. Should surrogacy take place in a developed country, this legal regulation is more likely to be established, which of course is no obstacle to the moral issues that also continue to present.

Surrogate motherhood unquestionably presents objective ethical problems, not least of which is an exploitation of the woman and commodification of the child, both of such magnitude that they themselves invalidate the moral licitness of any type of surrogacy; moreover, in the event that a fetal abnormality is detected, the simple proposal to abort the child adds the ethical problems of abortion to those posed by surrogacy.

It is clearly impossible to tackle all the medical, social and ethical problems posed by gestational surrogacy commercial contracts in a report like this one, hence we have only referred to those issues that can arise when fetal abnormalities are detected.

Justo Aznar

Bioethics Observatory

Catholic University of Valencia