Surrogacy and Assisted Reproductive Technology: Legal and Ethical Issues in Family Law


What are the legal and ethical issues related to surrogacy?

A few of the many issues raised by surrogacy include: the rights of the children produced; the ethical and practical ramifications of the further commodification of women’s bodies; the exploitation of poor and low income women desperate for money; the moral and ethical consequences of transforming a normal biological …

Surrogacy and Assisted Reproductive Technology: Legal and Ethical Issues in Family Law

Surrogacy and Assisted Reproductive Technology (ART) have become increasingly common as alternative methods for individuals and couples to establish families and create genetically related children. While both processes provide options for those who could not otherwise create a family by natural means, both processes raise legal and ethical considerations for family law, including uncertainty surrounding parental rights, the rights of surrogates and donors, and the best interests of the child.

Surrogacy is the process in which an individual (referred to as a surrogate mother) acts as a “gestational carrier” of a fetus or embryos that were created by someone else’s egg and sperm. This is a type of agreement where the surrogate mothers is responsible for the pregnancy, delivery and thereafter parenting of the child. This can be either a commercial opportunity or a donation, with the understanding that the surrogate will not retain any rights over the child as a result of the agreement.

With ART, medical procedures are taken to assist couples who are not able to conceive naturally to become pregnant, such as in vitro fertilization (IVF), use of a donor egg or sperm, or surrogacy. When done through a medical professional, these technologies can create legal complications that need to be addressed by family law. This is especially important when a child is created through the use of donor materials, as questions arise over the legal rights of the donor and the parents of the child.

In family law, legal definitions have been drawn between traditional surrogacy (where the surrogate also donates her egg along with carrying the baby) and gestational surrogacy (where the surrogate is not biologically related to the child she carries). In either case, parental rights may need to be established if they are not provided naturally, such as through genetic testing or through legal adoption proceedings.

At the same time, ethical considerations should be taken into account, particularly in terms of the relationships and responsibilities between family members and legal ramifications for the surrogate mother and donors. The rights of the surrogate mother should be considered and protected, including compensatory arrangements and the knowledge that she does not have parental rights over the child that she carries. Similarly, the rights of the donor should be considered, including their ability to revoke or deny consent and to maintain a degree of anonymity.

Ultimately, the well-being of the child should be of paramount importance and be taken into consideration in all family law decisions regarding surrogacy and ART. In many cases, this might involve disclosing the truth to the child in appropriate circumstances, or taking into account the needs of the child when navigating the surrounding legal and ethical considerations.

In conclusion, surrogacy and ART provide potential solutions for those who would otherwise be unable to have children, while also giving rise a number of legal and ethical issues related to family law. Appropriate arrangements should be made to protect the rights of all parties, while also taking into account the best interests of the child in any decision making process.

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