3.1 General considerations

When assessing the ethicality of gestational surrogacy, it could first be argued that acceptance of the pregnancy by the surrogate could be described as an expression of her personal autonomy. However, as Deonadan rightly notes, in the vast majority of cases, «it is rational to argue that their autonomy is being expressed from a space of desperation and thus vulnerability. To benefit from such autonomy can be described as the exploitation of desperation», so it is difficult to accept it uncritically ^[3].

Martín Camacho, by contrast, says that, «gestational surrogacy is a practice based on the free decision of adults who exercise their rights and prerogatives, without harming themselves or others, which is why we cannot point accusing fingers at or object to people who practice it, or the practice itself. All the participants and persons involved usually benefit from it: the child born of such an agreement would not have been born if the practice had not been carried out, and found a family who welcomed him with love and in which he is very much wanted, the commissioning couple get to become parents and have the opportunity to give their child love and all the care needed, and finally, the gestational carrier can satisfy her desire to help other people and obtain a benefit, generally economic, in exchange for that help» ^[4]. This approach, however, may represent a theoretical, formal and idyllic view of gestational surrogacy, since it does not take account of the complex set of difficulties that this raises in reality, especially for the most vulnerable parties, namely the surrogate and the child. It also presupposes a dualist concept of the person, which splits the person in two: on one side, their reason and autonomy and, on the other, their bodily dimension ^[5].

3.2 Objectification of the gestational carrier

In terms of the gestational carrier, commercial surrogacy is not ethically acceptable to begin with, because by using her body for an end other than her own good, and by treating it as a commodity, as something that can be bought and sold, this practice objectifies women, which is incompatible with their dignity and violates their rights. As Aparisi says, surrogacy directly contradicts some basic requirements for human dignity, since, ultimately, it commodifies, instrumentalises, objectifies, discriminates against and splits the personal unity of the gestational carrier, ^[5] i.e. it directly violates her dignity, because, according to the Kantian imperative, the person is an end in himself, so he should never be treated as a means to serve other ends.

3.3 The body of the gestational carrier as an object of trade

At present, in countries where gestational surrogacy is legally acceptable, it tends to be practiced as a contract between the parties. Its content is usually called a “gestational service” ^[6]. Thus, the surrogate mother’s body, with all its physical and psychological, rational and emotional implications, is the object of a commercial transaction, generally economic. This transaction is usually very well paid or “compensated”, owing to the potential physical and psychological consequences that the situation might have for the surrogate ^[7]. We have, therefore, a form of “self-commodification” of a human function -the reproductive function- which is ethically unacceptable ^[5; ^8].

3.4 Gestational surrogacy is a social injustice

Non-altruistic surrogacy is not ethically acceptable either, because of the social injustice that it entails, given that it involves exploitation of economically disadvantaged women by economically strong couples or individuals.

Some authors present gestational surrogacy as a new form of exploitation within neoliberal globalization, which, nonetheless, suggests a neocapitalist undertone ^[9]. Gestational surrogates -and other people whose productivity is derived from biological and emotional processes- are converted into subjects of the capitalist labor force ^[10].

Nonetheless, it is evident that many women in underdeveloped countries have made surrogacy a way of life, because the economic benefits that they obtain are much higher than the wages in those countries. A paradigmatic case of the latter is that of four Mexican sisters from Tabasco, Milagros, Martha, María and Paulina, who made surrogacy their normal life, receiving around €13,000 per pregnancy ^[11]. In this case, the sisters, as well as carrying the child, agreed to breastfeed it for the first ten days.

Conversely, reality has shown that the poorest women living in patriarchal societies are those who are most exposed to the risks of exploitation. Thus, in countries such as India, women are particularly defenseless against the possible instrumentalisation of their bodies, even subjected to the will of the men, whether it be their husband or father-in-law, which is a social injustice that is ethically unacceptable ^[12].

3.5 Rupture of the mother-child bond

The mother-child bond, which can be defined as the emotional and biological relationship that a mother experiences towards her child, begins early, at week 10 of gestation. It becomes stronger throughout the pregnancy, and is important for the child’s normal development ^[13-^15].

In surrogacy, the drastic rupture of this mother-child bond may lead to the development of physical and psychological disorders in mother and child. In the latter, these can manifest mainly in adolescence, in the form of depression, anxiety, psychiatric and psychological problems, feelings of insecurity and even suicidal tendencies ^[16-^17].

It has also recently been reported that the surrogate mother’s genome can affect the child’s, modifying it ^[18]. This would genetically link the gestational carrier to the child to some degree. Since these modifications in the child’s genome can be transmitted to their offspring, the surrogate mother’s genome will continue to be present, in some way, in the offspring of the child she carries, which may bring new ethical conflicts.

3.6 Medical problems that may affect the gestational carrier

The medical problems detected in surrogate mothers are no different to those in other pregnancies, ^[8; ^19] although a previous study showed that, long term, gestational surrogates may experience «depression, anxiety, various physical symptoms of psychological distress, feelings of insecurity or suicidal tendencies» ^[16]. More recently, the Swedish Women Doctor’s Association, referring to surrogacy in India, said that this practice may increase the risks of hypertension, thromboembolism and depression in the surrogate ^[20].

3.7 Ethical problems posed by the selection of surrogate mothers

The American Society for Reproductive Medicine and the Society for Assisted Reproductive Technology have published recommendations for the practice of surrogacy, in which they stipulate in detail the conditions that potential gestational surrogates must meet ^[21]. The most notable of these are: a) use of surrogacy; b) conditions that intended parents must meet; c) medical and social guidelines for selecting gestational carriers; and d) the potential relationships that may exist between the intended parents and gestational carriers. In terms of the conditions that gestational carrier candidates must meet, the following are worth noting: a) analysis of their psychosocial condition by an expert in these matters, which should include a clinical interview and psychological testing (where appropriate), carried out in accordance with American Psychological Association Ethical Standards; b) a complete evaluation of their health by a qualified medical professional; c) testing to ensure that they do not have any sexually transmitted diseases, and that they do not use drugs, or have recent tattoos or piercings, and other clinical circumstances; and d) undergo complete laboratory testing to exclude HIV or other sexually transmitted diseases.

This selection of surrogacy candidates also means objectification of the woman by classifying her as acceptable based only on some physical conditions and not her intrinsic dignity.

3.8 Need to ensure the informed consent of the gestational carriers

Throughout the entire surrogacy process, there must be a guarantee that future surrogate mothers are informed of the problems that their pregnancy may cause them, i.e. to ensure that they sign an informed consent, which, it seems, is not always the case ^[22-^23].

Given the problems that can arise for both mother and child, informed consent is an essential element in any surrogacy process, a consent that is not solely to serve as an element of dissuasion against possible legal claims, but which is a true safeguard for the gestational carrier and records her motivation, her free choice and the fact that she has been well informed, because there are many who warn about shortcomings in currently used consent forms. For example, one study showed that none of the surrogate mothers interviewed had received information about the types of medical interventions that they would eventually have to undergo, nor had they received information on the health risks derived from repeated hormonal hyper stimulation. Many women were unaware that they could have a caesarean at weeks 36-38 of pregnancy. Finally, none of the surrogates interviewed had received postnatal care by the contracting agencies ^[24]. Hence, when formulating the informed consent, all these circumstances must be taken into account to thus guarantee freedom and respect for the gestational carrier’s principle of autonomy ^[10].

3.9 Other circumstantial problems

As well as the aforementioned ethical issues that affect the surrogate, other circumstances may also arise, such as those that occurred in the case of Miles, son of Kyle Casson. After fertilizing the egg of an unknown donor with his sperm, the embryo obtained was implanted in his mother, ^[25-^26] thus making Miles his grandmother’s son and his father’s brother, which is ethically difficult to accept.

4.1 Objectification of the child

Several circumstances can negatively affect children born through surrogacy, ^[3] because alongside the good of the mother, we must not forget the good of the child.

Satisfaction of the desires of people who want a child has a limit: the good of the child. A child is a person, with his rights, and no one has absolute dominion over him. Surrogacy highlights the folly of considering a child as a right that drives one to possess it in any way. A child is not a thing, an object of property to suit the needs of those who own it, and that can be acquired through a purchase. If it were so, it would be objectifying the child, which is ethically unacceptable.

4.2 Medical problems that may affect children born through surrogacy

Available evidence seems to suggest that children born through surrogacy do not show a higher rate of abnormalities than those born naturally ^[27-^29].

Another aspect to consider is whether medical problems can arise throughout their life. Although there is little experience in this respect, a study that addressed this issue found no differences between children born through surrogacy and those born naturally ^[30]. In a meta-analysis that included 1795 articles on biomedical studies in surrogacy, only 55 of which met inclusion criteria, the authors found that «at the age of 10 years, there were no major psychological differences between children born after surrogacy and children born after other types of assisted reproductive technology or after natural conception» ^[2]. As previously mentioned, however, some have reported differences during adolescence ^[16-^17].

4.3 Problems posed by possible disability in children born through surrogacy

In light of the possibility of the child being diagnosed with a disability during the pregnancy or after the birth, three positions may arise: a) the disability is accepted by the commissioning parents and they take custody of the child; b) they do not accept it and the responsibility is transferred to the gestational carrier, encouraging her to abort it; and c) the gestational carrier is obliged to accept custody of the child with the disability.

When the option of abortion is suggested, it is sometimes difficult to determine to whom this decision corresponds, the commissioning parents or the gestational carrier, although on most occasions, it is the commissioning parents who decide, so they can impose an abortion on the surrogate that she may not want. In any event, the decision to abort, although supported contractually, does not exempt the gestational carrier from the moral responsibility that the abortion entails.

An example of the foregoing is the so called “Baby Gammy” case, at the end of July 2014. Pattaramon Chanbua, a Thai woman, was contracted as a surrogate by an Australian couple. She gave birth to a set of twins, a boy and a girl, in December 2013. During the pregnancy, Down’s syndrome was detected in the male fetus. The Australian couple were against accepting it, so they pressured Pattaramon to abort it. She refused, because as a Buddhist, she considered that it was an immoral act, and so continued the pregnancy. Accordingly, a healthy girl and a boy with Down’s syndrome were born. In August 2014, the Australian couple offered Pattaramon 16,000 dollars to compensate her for the inconvenience that it may have caused her to take care of a child with Down’s syndrome. The commissioning couple took only the healthy girl ^[31].

In order to get around this issue, an attempt is generally made to resolve it in the surrogacy contract, leaving it well established which of the aforementioned proposed solutions is the one that must be chosen. There are even agencies that guarantee a healthy child in writing. Thus, “Baby Bloom”, an international agency with a head office in London, offers “a complete surrogacy package” that includes a guarantee that the child will be healthy ^[32]. This agency works mainly in the United States, more specifically in California, where surrogacy is legal. One important aspect to achieve the goal offered by the agency is to previously select the gestational carriers to be contracted using very rigorous health criteria. As previously detailed, the company not only guarantees the quality of the future surrogate mother, but the quality of the embryos for transfer; thus if the transferable embryo shows any defects after genetic analysis, it would not be used, and if the impairment manifests later, during the pregnancy, interruption of the pregnancy is guaranteed, by abortion.

In relation to this, determining to whom the decision to abort legally corresponds when the fetus has a disability was evaluated at length in an article published in Bioethics, because of a case that occurred in Connecticut (USA) involving a surrogate mother. Following a medical examination at five months pregnant, a series of potentially life-threatening physical abnormalities was detected in the fetus, including cleft lip, brain cysts and heart defects, all of which could seriously compromise the child’s health, and even its life ^[33]. The commissioning parents requested an abortion, but the surrogate mother refused, sparking a considerable legal debate on who should take the decision to abort or not.

In regards to this, one approach suggests that the surrogate has no right to make decisions about the life of the child, since she is neither the child’s genetic nor social mother, but neither are there sufficient reasons to give sole rights to the commissioning parents, even if this is specified in the surrogacy contract. The authors of this article therefore advocate what they call the “professional model”, in which the rights and responsibilities of both parties must be acknowledged. In essence, though, they advocate that the right of the surrogate prevails, and that if she refuses to undergo an abortion, the commissioning parents have the obligation to accept custody of the child. This opinion appears to be shared by the American College of Obstetricians and Gynecologists, which stated that, «to allow a woman to contract away the right to control her own health would be to institute contractual slavery» ^[34].

When it comes to altruistic surrogacy, though, it is normally the surrogate who is allowed to decide what to do with the disabled child and the commissioning parents have the possibility of refusing to accept him or her.

However, in our opinion, while these terms may be administratively correct, they in no way resolve the ethical judgment that these facts merit, because they almost always choose not to accept the disabled child, which, ethically, is difficult to justify.

4.4 Ethical problems that may arise if the commissioning couple divorce

This occurred in the case of Baby Manji, born in India in 2008 as the result of a commercial surrogacy agreement between a Japanese couple and an Indian woman. The child was conceived using the sperm of Mr. Yamada, the commissioning parent, and an egg from an anonymous Indian donor. Unfortunately, the Yamadas divorced a month before she was born. Because of the divorce, Mrs. Yamada, who obviously was not genetically related to the child, did not want to take her, ^[35] and custody was eventually granted to Mr. Yamada’s mother ^[36]. Once again, there is disregard for the rights of the child who, conceived to satisfy the desire of the commissioning couple, can end up in a state of abandonment when the desire disappears.

4.5 Problems that may be posed by a multiple surrogate pregnancy

Another circumstance that may arise is that the pregnancy is a twin, triple or multiple pregnancy, and that the commissioning parents do not want accept custody of all the children. Multiple pregnancies can involve more risk than singleton ones, ^[37-^38] which is sometimes resolved by applying so-called “fetal reduction”, i.e. the elimination of the number of fetuses considered appropriate, to leave those desired, without taking into account the serious ethical difficulty that this entails. A recent study evaluating this issue in various Indian clinics reached the conclusion that, in many of them, the decision to use “foetal reduction” was taken by the physicians responsible for the case, without the surrogate mother participating in this arrangement, which is undoubtedly ethically contrary to her autonomy ^[22]. This is what happened in the case of Californian Brittneyrose Torres, who after becoming pregnant with triplets, was asked by the commissioning parents to undergo fetal reduction, even though they had agreed to pay her $25,000 dollars for the pregnancy and $5,000 dollars extra in the event of a twin pregnancy; triplets, however, did not enter into their plans. They therefore asked her to terminate one of the fetuses, but she refused and decided to go ahead with the pregnancy ^[39].

4.6 Difficulties for the child to determine their genetic identity

Children born through surrogacy may wish to know their true genetic origin, which would only be possible if a judge so rules, for reasons of law that justify it, and provided that DNA samples are available from the possible persons involved. The number of persons who should undergo DNA tests -if there has been no anonymous donation of gametes or embryoss- is undoubtedly more exhaustive than in routine paternity tests. In some cases, obtaining this would be impossible when there is no register or tracking that enables the gamete donors or provenance of the embryos to be known. In others, it would have be determined which of the two fathers involved is the sperm donor who fertilized the egg, if, as happens in some reported cases of surrogacy on behalf of a gay couple, the semen samples are mixed ^[2].

As far as the child is concerned, though, even if these problems are regulated, it does not seem possible to avoid the anguish of separation from the mother who carried him, his commodification, identity problems and psychosocial problems that he may have, the impossibility in some cases of learning his biological origins and other problems that affect his best interests ^[6].

In conclusion, it may be said that gestational surrogacy can deprive the child of his right to continuity between his genetic origin and his biological gestation, between gestation, upbringing and education, circumstances that should be respected and not dramatically altered ^[3-^40].