4.1 Ethical considerations

Papers that favored altruistic gestational surrogacy as ethically valid were centered on the questions of bodily autonomy, informed consent, and non-discriminatory reproductive justice. According to Oakley ⁽³⁾, arguments against surrogacy based on the claim that the gestational carrier cannot autonomously consent to surrogacy because she does not fully know the future emotional responses she might have in the moment of relinquishing the child are not valid, since informed consent does not require having this kind of information about one’s future emotional states.

Gunnarsson ⁽⁴⁾ addresses a dilemma between reports of the Swedish National Council of Medical Ethics and an investigation conducted by the government of Sweden which arrived at different conclusions when considering the issue of bodily autonomy versus self-determination in the topic of surrogacy. The Swedish National Council of Medical Ethics suggested the foregroundedness of the autonomy of the intended parents on the foetus as long as the gestational carrier has autonomous and altruistically entered into the agreement, while the Swedish government investigator granted more rights to the gestational carrier on the basis of the mater est law, which states that the gestational carrier of a child is the one who has the ultimate rights and autonomy on her body and the child, and therefore deemed surrogacy illicit.

In Gunnarsson’s view, the solution is not in the strict adherence to any of these two principles, but in an option that respects both the rights of the intended parents over the child and the autonomy of the mother over her own body as any other pregnant woman. According to the author, when the right of the intended parents is considered more important than the autonomy of the gestational carrier (kinship grammar of parental intent), it would constitute a form of oppression. However, if the mater est law were imposed as an ‘essentialist’ and normative view of motherhood (kinship grammar of gestation) it would be incompatible with «an intersectional, queer and non-discriminatory approach to reproductive justice» ^{(4, p. 66)} and respect for the reproductive vulnerability of involuntarily childless people. For this reason, the author proposes moving beyond the «strict norm» that a child can have maximum two parents, creating a «queerer» kinship grammar and more inclusive ways of reproducing and creating families.

Opponents of altruistic surrogacy argued mostly from a perspective of autonomy and informed consent, but also from the physiological bond created by gestation, the increased risk of medical complications for both the gestational carrier and the child, and the necessary commodification of the persons involved in the transaction. Tieu ⁽⁵⁾ and Al-Adib ⁽⁶⁾ both claimed that the physiological and psychological response triggered by the secretion of oxytocin and other neurotransmitters creates a bond that is broken by surrogate pregnancy, making it unnatural and thus unethical. Besides, argues Al-Adib ⁽⁶⁾, surrogate pregnancy poses an unnecessary increase of adverse risks both on the gestational carrier and the child.

Schurr and Militz ⁽⁷⁾ claim that, whether it is commercial or altruistic, surrogacy always involves a process of commodification and mercantilization, in which both the gestational carrier’s body and the child become a product for consumption in an «affective economy». The reason for this is that surrogacy arrangements always imply a persistent process of affective and effective detachment between the gestational carrier and the relinquished child, in order to assign market value to the latter. Schurr ⁽⁸⁾ explains how the surrogacy and reproductive medicine market can be commodified for eugenic and racial motivations by reporting on the surrogacy market in Tabasco, Mexico: While the normal egg donors earn about 500 USD, the VIP egg donors are paid 1,200 USD. Depending on the characteristics of the donor -including physical appearance, body mass index, and education- an international donor can cost up to 50,000 USD^{(8, p. 251)}, normal donors being mestizo Mexicans, VIP donors being white Mexicans, and international donors being mostly European.

To what extent the baby, resulting from transnational surrogacy arrangements is commodified hence depends on the intensity of affective ties between the reproductive laborers and consumers, and on the effective detachment of the baby from his/her reproductive laborers. Hence, it is not the legal framework of the market, be it altruistic or commercial, that defines whether a baby is commodified, but rather the intimate choices of the members of these world families and their demarcating practices^{(7, p. 1641)}.

Anleu ⁽⁹⁾ responding to whether the absence of monetary exchange in a surrogacy arrangement would rule out exploitation, argues that these imply family pressures and emotional manipulation, which would nullify autonomy and would be as exploitative as contractual relations.

4.2 Findings on the physiology of maternal-foetal bonding

4.3 Findings on the psychological damage

As for the psychological impact on both the gestational carrier and the relinquished child, less information is available. A bibliographical review by Ciccarelli and Beckman found scarce empirical research on the topic and that many of them were small sample studies with less than 30 gestational carriers. They found that occasionally women regretted their decision to become a surrogate, though they claimed it was unclear whether the dissatisfaction stemmed from the surrogacy process itself, the lack of therapeutic and preventive interventions, or both. They concluded that the literature on surrogacy revealed a lot of discussion regarding its ethical, moral, legal, and psychological implications, but limited empirical data on the psychological and social aspects to provide empirical evidence as a foundation for counseling ⁽¹⁾.

In a prospective, longitudinal, cross-sectional study by Lamba et al.⁽¹⁸⁾ in which they interviewed 50 surrogates and 69 expectant mothers during pregnancy and 45 surrogates and 49 expectant mothers post-birth, the results showed that surrogates had higher levels of depression compared to the comparison group during pregnancy and post-birth (P < 0.02) and interacted less with and thought less about the foetus, but adopted better eating habits and were more likely to avoid unhealthy practices during pregnancy (P < 0.05). However, no associations were found between greater prenatal bonding and greater psychological distress during pregnancy or after the relinquishment of the child. Imrie and Jadva ⁽¹⁹⁾ interviewed 34 women who had completed a total of 102 surrogacy managements seven years prior to the interview, and they found that most surrogates showed no psychological health problems at the time of data collection as assessed by their questionnaire measures.

Golombok et al.⁽²⁰⁾ examined children in 30 surrogacy families, 31 egg donation families, 35 donor insemination families, and 53 natural conception families in a longitudinal study of psychological adjustment, and showed that children born through gamete donation did not differ overall from naturally conceived children, but surrogacy children showed higher levels of adjustment problems than children conceived by gamete donation at age 7, suggesting that the absence of a gestational connection between parents and their child may be more problematic for children than the absence of a genetic relationship^{(20, p. 7)}. Söderström-Anttila et al.⁽²¹⁾ conducted a meta-analysis in which they concluded with very low quality of evidence that Most surrogate mothers are within the normal range on personality tests. Most psychosocial variables were satisfactory, although relinquishing problems sometimes occurred^{(21, p. 268)}.

4.4 Findings on the increased medical risk

According to Simopoulou et al.⁽²²⁾, surrogacy and its association with in vitro fertilization entails risks during preimplantation, prenatal, and neonatal periods. Nevertheless, the risks posed by surrogate pregnancy are not significantly different from those of in vitro fertilization techniques overall. A retrospective cohort study by Woo et al.⁽²³⁾ that claimed to be the largest study of its type to its date, evaluated 124 gestational surrogates who achieved a total of 494 pregnancies, and reported the following outcomes:

Surrogate births had lower mean gestational age at delivery (38.8 +/- 2.1 vs. 39.7 +/- 1.4), higher rates of preterm birth (10.7% vs. 3.1%), and higher rates of low birth weight (7.8% vs. 2.4%). Neonates from surrogacy had birth weights that were, on average, 105 g lower. Surrogate births had significantly higher obstetrical complications, including gestational diabetes, hypertension, use of amniocentesis, placenta previa, antibiotic requirement during labor, and cesarean section^{(23, p. 1)}.

5.1 Neurophysiology, psychology, medicine and translational impact

Based on scientific studies involving neuroimaging, neurophysiology, neuroendocrinology, and behavioral studies, on both experimental animal models and human models, evaluating both hormonal and non-hormonal pathways of maternal bonding, it is evident that the mother-child bonding is a natural and physiological phenomenon ⁽¹⁰-¹⁷⁾, irreducible to a mere social construct or gender role. Moreover, evidence suggests an association between positive attachment representations and relationship attributes and maternal psychological well-being overall ⁽¹⁰⁾. Nevertheless, the mechanisms of the pathways responsible for these bonds and the ways these can be affected by different behavioral alterations still need to be studied in depth. Furthermore, it is unclear how these findings have a clinical and translational impact in the psychological well-being of the mother-child binomial.

In 2005 Ciccarelli and Beckman ⁽¹⁾ found that evidence on the psychological consequences of surrogacy was limited. This appears to still be the case nowadays since empirical research on this topic is scarce and of low quality, probably due to lack of interest on this issue. All studies regarding this have small sample sizes and severe methodological limitations ⁽¹⁸-²¹⁾. For this reason, the possibility of there being an increased risk of psychological damage inflicted upon the mother-child binomial through gestational surrogacy could be neither proven nor disproven in this review.

With regards to the increased medical risks associated with surrogacy, it is reported that surrogacy entails at least the same risks as in vitro fertilization techniques overall. Surrogacy thus poses increased risks for preterm birth, low birth weight, gestational diabetes, gestational hypertension, use of amniocentesis, placenta previa, antibiotic requirement during labor, and cesarean section ⁽²²-²³⁾. The fact that surrogacy is an invasive and non-therapeutical procedure performed on a healthy individual that entails increased medical risks, while there exist other alternatives to conceive or foster a child, further puts in question the proportionality of the medical act of gestational surrogacy.

Future discoveries on the role of microchimerisms and in utero epigenetics on the mother-child binomial may both increase our knowledge of the physiological implications of surrogacy and also open new ethical and anthropological debates on the definitions of parenthood ⁽¹⁷⁾. Weighing the impact of epigenetics as we obtain more evidence about it, could challenge our conception of motherhood relying mainly on the provision of genetic material, as well as provide a new empirical basis for the mater est law.

5.2 Personalist neuroethical judgement

The final verdict on the ethical permissibility of altruistic surrogacy in the reviewed papers usually depended on the moral weight assigned to reproductive justice and equality versus the bodily autonomy and integrity of the gestational carrier and the naturality of the carrier-child bond ⁽³-⁹⁾, as well as on the concern about whether or not the altruistic nature of the act would render the affective commodification and manipulation of both the gestational carrier and the relinquished child licit ⁽⁷-⁸⁾. However, the approaches proposed for judging the moral act of the present pilot study are those of personalist bioethics and neuroethics, which have their own orienting principles and methodological structure for addressing such dilemmas.

Personalism, at least in its ontological variant, proposes that human rights are grounded on the intrinsic dignity of the person, which is considered to be universal and inalienable, and that a person is always an end in himself/herself (also known as the categorical imperative), and cannot be considered as a means to something else. Its main principles, organized in a hierarchical order, are: the defense of physical life; the principle of totality (also known as the therapeutic principle); the principles of freedom and responsibility; and the principle of solidarity and subsidiarity ⁽²⁴⁾.

On the other hand, neuroethics is a relatively novel and increasingly important branch of bioethics concerned with the ethical implications of neuroscience research findings, as well as the neurological bases of ethical thought and behavior. It encompasses theoretical, empirical, practical and policy issues at the intersection of neuroscience and bioethics, and it raises questions about the biological basis of personality and social behavior, and the role of neurobiology in decision-making. One of the tools used by neuroethics are brain imaging techniques, such as functional magnetic resonance imaging, which open the possibility of obtaining measurements of biological correlates of complex human behavior, such as existential thought and decision-making, moral social judgment, etcetera, and the mechanisms that underlie emotion, values, and thought ⁽²⁵⁾. Personalist neuroethics therefore evaluates the discoveries and ethical implications of the neurosciences, as well as the neurological bases of ethics, from the personalist perspective.

From a personalist approach, altruistic surrogacy would violate the principle of totality, since it is a disproportionate and invasive medical procedure that entails increased risks, it is carried out on a healthy individual, and there could be better alternatives to solve the problem of being unable to conceive or to carry a pregnancy to term. Moreover, using the gestational carrier as a means to obtain an offspring would violate the categorial imperative. Even if one argued that surrogacy would be an act of solidarity and reproductive justice towards those who, through no fault of their own, are unable to have offspring, and even if a «just compensation» and coverage of medical expenses were offered (while keeping the arrangement altruistic), surrogacy would not be justified since justice due to the gestational carrier, the offspring’s right to having parents, the unity of marriage and the parental bond, are values anterior and axiologically more important ⁽²⁶⁾ than the contractual nature of a surrogacy arrangement.

An ontological personalist ethical system, that presupposes the existence of a human nature and a purpose or telos according to which one must act in order for one’s actions to be deemed as ethically correct, would use the tools of neuroethics as a source of information about the objective neurological bases of human ethical behavior and thus the moral dimension of human nature. Given the overwhelming evidence that the mother-child binomial undergoes significant physiological and affective adaptive changes and development of functions in order to facilitate the nurturing and upbringing of the offspring, one can deduce that these functions have a purpose and are a part of human nature and its fulfillment. From this perspective, one could affirm that the mother-child bond in itself has an axiological weight that must be considered when judging and making decisions in clinical practice, investigation, policy making, and legislation. Even though in the present study the clinical psychological impact of surrogacy on the binomial could not be fully understood and thus exposed as a translational tool in the argument about surrogacy, this theoretical framework could be used to argue that surrogacy can be regarded as unethical from a personalist perspective stemming from a neuroethical basis.