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 Bioethical and biolegal aspects of surrogate motherhood Loredana Persampieri P P Bioethical and biolegal aspects of surrogate motherhood Loredana Persampieri P P

 Overview n Object of Inquiry n Commercial/Altruistic Contractual Models n Arguments in favor Overview n Object of Inquiry n Commercial/Altruistic Contractual Models n Arguments in favor of surrogacy n Objections to surrogacy n Final remarks n

Overview Access to assisted reproductive technologies has become increasingly frequent since the end of Overview Access to assisted reproductive technologies has become increasingly frequent since the end of the 1970 s, due to: n technological developments in the medical field n significant social changes affecting family patterns (e. g. altering parental relationships, less bound by traditional/natural ways of conceiving family) n Italy, “Rules on Medically Assisted Procreation” (Law No. 40 of 19 February 2004) n. The main ethical and legal dilemmas arise out of the tension between the need to ensure scientific research advancements and respect for values guaranteeing the dignity of the person n

 Overview Reproductive techniques challenge/bring uncertainty into the social meaning Reproductive techniques challenge/bring uncertainty Overview Reproductive techniques challenge/bring uncertainty into the social meaning Reproductive techniques challenge/bring uncertainty into the of motherhood. Feminist ethics provides different answers to these issues: Some lines of thought focus on l’idea that transforming gestation through technology is a socially progressive solution (i. e. increasing human freedom, achieving social emancipation from the conditioning of men) Others believe that reproductive technologies lead to opposite outcomes (deprive women of their “reproductive power”, handing it over to men) There also orientations fearing that medical techniques may reduce human body (and its parts) to “chattel”. Those embracing this approach reject all reproductive interventions involving third parties (for instance, surrogacy)

 Overview From a legal standpoint, it is difficult to devise solutions taking into Overview From a legal standpoint, it is difficult to devise solutions taking into account several elements: New technological applications arising from rapid scientific progress (assessing risk-benefit relationship) Achieving balance between ethical pluralism and conflicting fundamental rights at stake.

Object of Inquiry Conceptual definitions: Surrogacy is defined as ʽthe practice whereby one woman Object of Inquiry Conceptual definitions: Surrogacy is defined as ʽthe practice whereby one woman carries a child for another with the intention that the child should be handed over after birthʼ (Report of the Committee of Inquiry into Human Fertilization and Embryology, chaired by Mary Warnock, London 1984). It can take a number of forms: In some cases, the ʽsurrogate motherʼ is the ʽgenetic motherʼ because she is also the egg provider (Partial or Traditional Surrogacy). It usually involves sperm from the intending father. In other cases, the surrogate provides only ʽgestational servicesʼ. The commissioning mother may be the genetic mother or she may make no contribution to the establishment of the pregnancy, involving a third donor (Full or Host Gestational Surrogacy). Three possibilities: 1) eggs and sperm of the intended parents; 2) a donated egg fertilized with sperm from the intended father; 3) an embryo created using donor eggs and sperm.

Object of Inquiry Motherhood results in ʽfragmentationʼ into different roles: § Genetic § Gestational Object of Inquiry Motherhood results in ʽfragmentationʼ into different roles: § Genetic § Gestational § Social It questions the very fundamental certainty of all human beings: § Maternal identity

Object of Inquiry Different opportunities are envisaged also with regard to the father’s role Object of Inquiry Different opportunities are envisaged also with regard to the father’s role The genetic father may be: n The husband of the commissioning mother/or of the carrying mother/anonymous donor There are, thus, many possible combinations of persons who are relevant to the child’s conception, birth and early environment. Of these various forms perhaps the most likely are: n Surrogacy involving artificial insemination, where the carrying mother is the genetic mother inseminated with semen from the male partner of the “commissioning couple” Surrogacy using in vitro fertilisation involving an egg donor, where only semen comes from the commissioning couple and the resultant embryo is transferred to and implants in the carrying mother n Surrogacy using in vitro fertilisation where both egg and semen come from the commissioning couple and the resultant embryo is transferred to and implants in the carrying mother n

Critical issues Ethical and legal dilemmas involve the role of the mother: n the Critical issues Ethical and legal dilemmas involve the role of the mother: n the “substitute mother” may refuse to give the child to the commissioning mother at birth n Difficulty to legally recognize as “mother” who has not given birth to the child It challenges: n traditional structure of motherhood/family n values such as freedom, dignity and health of the parties involved (roles of mother, father, interests of the child) Renting the womb of a woman for a parental project of others, leading to: n “de-personalisation/dissociation between fertilization and implantation/genetics and parenthood

Reasons for engaging in surrogacy Certain women are unable to undergo pregnancy due to Reasons for engaging in surrogacy Certain women are unable to undergo pregnancy due to physiological conditions: n Diabetes n Uterine/pelvic diseases n Complications in previous pregnancy n Repeated failed fertility treatment Other not strictly medical reasons: n Aesthetic n Career priorities n Same-sex couples

Commercial/Altruistic Agreement Models The Commercial form “Commercial contract is modelled on the business relationship: Commercial/Altruistic Agreement Models The Commercial form “Commercial contract is modelled on the business relationship: both parties are motivated by personal gain to enter a legally enforceable agreement, which stipulates that the contract mother or “surrogate” is to bear a child for the intending parents in exchange for a fee” (Liezl Van Zyl and Ruth Walker, Bioethics, 2013) Main features: n the surrogate mother is usually required to undergo medical examinations and to refrain from behaviour that could harm the foetus n the intending parents are considered to be the child’s legal parents from the outset n the parties to the contract are typically discouraged from maintaining contact after the transaction is completed

India It is one of the main destination countries especially for wealthy western couples India It is one of the main destination countries especially for wealthy western couples desiring to resume to a surrogacy agreement (low cost techniques/procedures) Surrogates are usually lower middleclass housewives (money is the primary motivator): They leave home for the duration of the pregnancy and live in hostels run by “intermediary surrogacy agencies/infertile clinics” n

India n n n It has grown into a multi-billion dollar industry due to India n n n It has grown into a multi-billion dollar industry due to its low-cost services, generated from roughly 3000 clinics The average cost of a surrogacy procedure ranges from 10. 000 to 35. 000 dollars, therefore, making it more affordable if compared with the cost of 59. 000 -80. 000 dollars for this same practice in the United States, which is another great provider of surrogates (especially California). Among others: Ukraine, Russia Information on the extent of surrogacy is scarce due to the absence of a robust international reporting system

India’s regulatory framework Commercial surrogacy has been legal in India since 2002. India’s evolving India’s regulatory framework Commercial surrogacy has been legal in India since 2002. India’s evolving regulatory framework (2013 draft ART Bill) focuses on a few constant elements: n n n no procedure should be performed without the client’s spouse’s consent sex selection is not allowed except to prevent sex-based disease transmission the surrogate should be a stranger to the commissioning couple it is preferable that the intended parents be a married couple the surrogate should relinquish all parental rights over the child it is highly desirable that the sperm originate from the male member of the commissioning couple

India’s regulatory framework n n Recent EU-funded study by Virginie Rozée, Sayeed Unisa and India’s regulatory framework n n Recent EU-funded study by Virginie Rozée, Sayeed Unisa and Elise de La Rochebrochard, published in “Population & Societés”, 537, October 2016: In 2015, the Indian government banned surrogacy foreigners, but not for Indian couples. Foreign intended parents are now turning to new destinations like Cambodia and Kenya. The study focused on the Micro-realities of Surrogacy in Mumbai, Chennai and New Delhi. Interviews conducted with: 32 experts (physicians, lawyers, agency and association managers, politicians), eight parents (Australian, Indian and French) and 33 surrogates. It proved particularly complicated to interview the surrogates, notably because of the conditions imposed by the physicians running the clinics. For example, interviewers were not allowed to contact the surrogates outside the clinic or in the absence of a clinic or agency representative. Interviews with surrogates were held in Marathi, Hindi or Tamil and directly translated into English by our assistant or by physicians from the clinic.

India’s regulatory framework n n n In all cases, the couples turned to surrogacy India’s regulatory framework n n n In all cases, the couples turned to surrogacy after repeated setbacks in their efforts to become parents. Adoption proved impossible because of the time required, the cumbersome formalities and the numerous restrictions that applied. When people considered surrogacy, the reasons for choosing India seemed to be a conjunction of legal, economic, practical and medical factors. In the first place there was no specific law on surrogacy in India, which was why the practice had developed there. For foreign parents, surrogacy was relatively cheap in India: about € 30, 000 to € 40, 000 (excluding travel expenses), compared to a minimum of € 100, 000 in the United States. From a practical standpoint, India had an ample supply of high-quality medical services, and the formalities were facilitated by the use of English.

India’s regulatory framework n n Intended parents chose a clinic either online or through India’s regulatory framework n n Intended parents chose a clinic either online or through an association. They stressed that their choice was guided by the clinic’s reputation, its stated rate of success, the transparency of its organization and its respect for those concerned. Some couples said they still had doubts about the legitimacy of the surrogacy process. Others were explicitly at ease with the practice, presenting it as a mutual exchange that enabled surrogates to improve their own children’s living conditions. Many of the European and Australian parents had told their close friends and family about their project and intended to tell their child, later on, how he or she had come into the world. This is in sharp contrast to the attitude of Indian parents, who use surrogacy in the utmost secrecy. The physicians and the organization of surrogacy in India In the absence of a specific law, surrogacy is overseen by clinics and agencies, usually run by physicians. Surrogates are mainly recruited for their ability to perform the “work” of gestation: good health condition

India’s regulatory framework n n A tripartite contract is then signed between the agency India’s regulatory framework n n A tripartite contract is then signed between the agency or clinic, the parents and the surrogate. The contract fixes the working conditions and the sums to be paid. Surrogates are paid a premium in the event of a multiple pregnancy or a Caesarean section, which carries more risk. The parents can add specific clauses, for example about diet, or music to be listened to during the pregnancy. The contract is written in English, so not all surrogates can read it for themselves. The agency or clinic staff generally tell them what is in it, but the surrogates do not amend it. During the pregnancy, the surrogate may live at home, be temporarily housed near the clinic, in the parents’ home (if they are Indian), or in special collective accommodation for pregnant surrogates. The physicians often prefer this latter solution as it ensures optimal medical supervision of the pregnancy. Supervision is especially important, given that surrogacy more frequently leads to multiple births or Caesarean deliveries, which both entail risks. Indian physicians offering surrogacy consider that their way of working offers appropriate conditions for informed consent by the surrogate and good risk management for both surrogate and foetus. They describe surrogacy as scientific progress and a win-win solution, the parents very often leaving with a baby and the surrogates earning a

India’s regulatory framework n n n Most Indian surrogates interviewed in the various studies India’s regulatory framework n n n Most Indian surrogates interviewed in the various studies were in paid employment before becoming surrogates. Compared to the Indian population as a whole, surrogates are neither the least educated nor the poorest. Their reason for becoming surrogates is financial. For the entire process they are paid between 200, 000 and 500, 000 rupees (approx. € 2, 800 to € 7, 000 ). This is often equivalent to several years’ wages. Apart from this economic motivation, the women believe that by helping a childless couple they are performing a good deed. This is an important aspect of Hinduism, the religion of 80% of the Indian population. Before deciding to become surrogates they consulted their spouses and close kin (parents-in-law, mother, sister). Some surrogates had to persuade an initially reticent spouse. They then went directly to the clinic or agency to be recruited. The surrogates speak of surrogacy as a relatively positive experience

India’s regulatory framework n n n They do not seem to feel weighed down India’s regulatory framework n n n They do not seem to feel weighed down by the medical supervision, but their accepting attitude should be seen against the background of women’s general situation in India, where they live under the authority of their father, husband parents-in-law, with little freedom of movement or decision-making power. Even so, the women admit to some fears and difficulties. The medical examinations and the demanding treatments are a source of anxiety. With regard to the child they are carrying, they emphasize the happy future that awaits it with loving, well-to-do parents, but express regret that they will not be allowed to see it after the birth. The main difficulty mentioned by the surrogates concerns society’s condemnation. They describe social attitudes to surrogacy in India as extremely disapproving. To protect themselves from their neighbours’ lack of understanding, surrogates hide their surrogacy and sometimes prefer to be away from home during their pregnancy, even though it is hard for them to be far from their family. In sum, surrogates tend to view surrogacy as an assumed choice. They see themselves as educated women, wives and mothers who are taking their family’s destiny in hand to improve its living conditions or address short- or longer-term financial problems.

India’s regulatory framework n n However, the interviews sometimes reveal cracks in the façade. India’s regulatory framework n n However, the interviews sometimes reveal cracks in the façade. Many surrogates say they do not want to repeat the experience in the future. Some women respond with emotion when asked about the possibility that a daughter of theirs might one day become a surrogate. They believe that if that happened. their own surrogacy would have failed to change their family’s life.

surrogacy cases that resounded worldwide n n The “baby Manjhi” case (2008): a Japanese surrogacy cases that resounded worldwide n n The “baby Manjhi” case (2008): a Japanese couple used a gestational surrogate with a donor egg, but then divorced before the baby was born. The wife (who was not genetically related to the baby) refused to recognize the child, but the husband (who was genetically related to the baby) did. However, Japanese law banned surrogacy, and Indian law would not allow a single man to adopt a child. The case underscored the extent to which adoption and parentage laws pose challenges to surrogacy. The “baby Gammy” case (2015): an Australian couple commissioned a surrogate in Thailand. The baby was diagnosed with Down’s syndrome, resulting in the couple not taking him back to Australia, even though his healthy twin sister was immediately accepted. The international outcry was a primary reason for providing for restrictions in Thai surrogacy rules. This case requires a value-based examination of the extent to which progeny can become “property”, and who ultimately has decision-making power with regard to the child’s interests.

USA State laws across the US are ambivalent about Commercial Surrogacy: Many States have USA State laws across the US are ambivalent about Commercial Surrogacy: Many States have no surrogacy laws at all and there is no orthodoxy among those that do. There are cases of nullified surrogacy contracts in disputes (Supreme Court of New Jersey, 1988. In the Matter of Baby M. 109 NJ. 396, 537 A. 2 d 1227): “because of her likely financial circumstances, the NJ Supreme Court argued that paying a gestational surrogate may make her decision less voluntary”. Candidate surrogates tend to have lower incomes than their employers and so are more subject to coercion in such circumstances: for this reason and also from concerns about “the best interest of the child”, the Court determined that the surrogacy contract in the Baby M. Case was invalid (Jennifer Damelio and Kelly Sorensen, Bioethics, 2008).

 USA In California: The intended parents can obtain a “pre-birth judgment” before the USA In California: The intended parents can obtain a “pre-birth judgment” before the child’s birth, therefore, in the birth certificate they will be mentioned as the “legal parents”. Using genetic information belonging to the surrogate mother entails the risk she might decide to keep the child: The case In re Marriage of Moschetta (Cal. Ct. App. 1994). The Court decided in favor of the surrogate mother not willing to give up the child.

Altruistic form Altruistic arrangements are based on the “gift relationship”: A woman is motivated Altruistic form Altruistic arrangements are based on the “gift relationship”: A woman is motivated by altruism to have a baby for an infertile couple Such exchanges most often occur between: n Friends n Family members n Strangers High degree of voluntariness

United Kingdom 1984 – The Warnock Report: “the bearing of a child for another United Kingdom 1984 – The Warnock Report: “the bearing of a child for another can be seen, not as an undertaking that trivialises or commercialises pregnancy, but, on the contrary, as a deliberate and thoughtful act of generosity on the part of one woman to another”. 1985 – Surrogacy Arrangement Act Human Fertilisation and Embryology Act (1990, as modified in 2008). It sets out that: “the mother who gives birth to the child is always the mother of the child”. “The intended parents are expected to apply to the family court for a parental order after the child is born. A parental order will make both intended parents the legal parents (with parental responsibility) and permanently extinguish the surrogate’s legal motherhood. It will also trigger the re-issue of the child’s birth certificate, showing the intended parents as the legal parents. To be able to apply for a parental order, one or both of the intended parents must be a gamete provider, and they must be a couple (married, civil partners or living together as partners).

United Kingdom The surrogate’s autonomy is not questioned with regard to decisions involving pregnancy United Kingdom The surrogate’s autonomy is not questioned with regard to decisions involving pregnancy 2010 – Access to such reproductive techniques was extended to same-sex/unmarried couples Agreements are not binding: based on trust and goodwill The parties may not fulfil the agreements reached (no remedies are provided for)

United Kingdom Despite the fact compensation is prohibited, there are no clear standards for United Kingdom Despite the fact compensation is prohibited, there are no clear standards for paying reasonable expenses to surrogate women. The Brazier Surrogacy Review Team received 369 written responses from the public at a hearing in 1998, finding that: n 88. 83% of respondents answered “no” to the question: “Should there be a legal ban on all payments to the surrogate mother made by or on behalf of the commissioning parents? ” n 82. 20% answered “yes” to the question: “Should payments include remuneration for loss of actual earnings”? (M. Brazier, A. Campbell & S. Golombok. 1998. Surrogacy Review for Health Ministers of Current Arrangements for Payments and Regulation, Report of the Review Team: London)

Greece Surrogacy without compensation It is regulated as “pre-birth adoption” Relevant legislation: n Law Greece Surrogacy without compensation It is regulated as “pre-birth adoption” Relevant legislation: n Law N° 3089/2002 n Law N° 3305/2005 Access requirements: issuance of “parental licensing” by Court (released after documental evidence is provided by the intended mother proving that for medical reasons she is unable to carry a pregnancy and the surrogate enjoys good health conditions.

Greece After entering into the agreement: Registration of the child for the couple (takes Greece After entering into the agreement: Registration of the child for the couple (takes over total parental responsibility) In this case, the general rule is disregarded that the mother is the woman who gives birth. Although, priority is given to biological connections over social ones in the case of "action for disputing maternity" (within six months after the birth of the child)

Greece Controversial aspects The surrogate mother renounces to her rights at an early stage, Greece Controversial aspects The surrogate mother renounces to her rights at an early stage, with regard to: medical examinations Autonomy in decisions concerning pregnancy terminations (e. g. in case of child malformations). The surrogate mother is not entitled to decide on matters concerning the foetus (despite the fact she is still carrying the baby in her body).

Prohibiting Surrogacy Italy Ban on surrogacy (Article 12, section 6, Law n° 40/2004): Court Prohibiting Surrogacy Italy Ban on surrogacy (Article 12, section 6, Law n° 40/2004): Court of Brescia, Order of August 14 th 2012; Court of Appeals of Brescia of January 17 th, 2013; Court of Milan, Decision of April 8 th, 2014. Italian intended parents who enter into surrogacy agreements outside Italy may face criminal charges when they return to Italy with the child born from the surrogate mother. This stems from the fact that, according to Italian law (Article 269 paragraph 3, Civil Code) a woman who gives birth to a child is that child's mother. Therefore, the registration of the newborn in the register of births as the child of the intended mother could be construed as the offence of tampering with the civil registry (Article 567 paragraph 2, Criminal Code).

Italy Supreme Court Judgment n° 24001 of November 11 th 2014. For the first Italy Supreme Court Judgment n° 24001 of November 11 th 2014. For the first time, the Supreme Court dealt with the issue of registering a child born under a surrogacy agreement reached abroad and denied this possibility. However in this case, neither intended parent wanting to register the baby as their own had any biological connections with the child. Therefore, the Supreme Court found that surrogacy is in conflict with the system of adoption, as under Italian law, adoption is the only method to result in parentage where there are no biological ties with the child.

Italy Judgment delivered by the European Court of Human Rights: Paradiso and Campanelli v. Italy Judgment delivered by the European Court of Human Rights: Paradiso and Campanelli v. Italy (25358/12) The case concerned the placement in social-service care of a nine-month-old child who had been born in Russia following a gestational surrogacy contract entered into by a couple; it subsequently transpired that they had no biological relationship with the child. Judgment delivered on 27 January 2015: violation of Article 8 (right to respect for private and family life). The Court found in particular that the public-policy considerations underlying the Italian authorities’ decisions could not take precedence over the best interests of the child. Reiterating that the removal of a child from the family setting was an extreme measure that could be justified only in the event of immediate danger to that child, the Court considered that, in the present case, the conditions justifying a removal had not been met.

Italy Judgment overturned by the Grand Chamber of European Court of Human Rights: Paradiso Italy Judgment overturned by the Grand Chamber of European Court of Human Rights: Paradiso and Campanelli v. Italy (24 January 2017) The Grand Chamber found that there had been no violation of Article 8 (right to respect for private and family life) of the Convention in the applicants’ case. “Having regard to the absence of any biological tie between the child and the applicants, the short duration of their relationship with the child and the uncertainty of the ties between them from a legal perspective, and in spite of the existence of a parental project and the quality of the emotional bonds, the Grand Chamber held that a family life did not exist between the applicants and the child. It found, however, that the contested measures fell within the scope of the applicants’ private life…”.

Italy “The Grand Chamber further considered that the contested measures had pursued the legitimate Italy “The Grand Chamber further considered that the contested measures had pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others. On this last point, it regarded as legitimate the Italian authorities’ wish to reaffirm the State’s exclusive competence to recognise a legal parent-child relationship – and this solely in the case of a biological tie or lawful adoption – with a view to protecting children. The Grand Chamber also accepted that the Italian courts, having concluded in particular that the child would not suffer grave or irreparable harm as a result of the separation, had struck a fair balance between the different interests at stake, while remaining within the room for manoeuvre (“margin of appreciation”) available to them”.

n n There is a broad and complex case-law on this practice, occasionally contradictory. n n There is a broad and complex case-law on this practice, occasionally contradictory. Difficulty arises out of the mix of laws on filiation, assisted reproduction and citizenship involving all the parties.

Arguments in favour of surrogacy Freedom to choose Right to privacy Women should be Arguments in favour of surrogacy Freedom to choose Right to privacy Women should be able to choose their parental role from available reproductive techniques According to C. Shalev: “Making babies is one of women’s possible forms of power. Establishing a paid contract can help those having limited income opportunities”. A free reproductive market would enable women to autonomously set a value for their procreative activities. Back in the 1980 s, Peter Singer and Deane Wells suggested establishing “State Surrogacy Boards” to monitor agreement terms and conditions/offer medical counselling to the parties involved.

Arguments in favour of surrogacy In L. B. Andrew’s view: Surrogacy is not a Arguments in favour of surrogacy In L. B. Andrew’s view: Surrogacy is not a form of exploitation in itself, it becomes so whenever there are poor living conditions. Efforts should focus not on abolishing compensation but, instead, on increasing it. The “professional surrogate” could fulfil “extra needs” (desires), such as: Renovating homes Affording education for their children Purchasing cars Other orientations: Therapeutic reasons (a solution for infertility, most likely causing considerable suffering). No compensation is claimed (this way everyone could afford exercising their right to a family, through procreation) Appropriate regulation to control possible risks (for the commissioning couple, surrogate and child): Clear procedures guaranteeing the surrogate’s free consent

Objections to Surrogacy Harm to surrogates/children (it can be psychologically damaging to be forced Objections to Surrogacy Harm to surrogates/children (it can be psychologically damaging to be forced to give up a baby; philosophical considerations against “using a person as a means”) Commodification of women/children Exploitation (vulnerability of poor women) It is defined as “reproductive slavery”/ “incubatory servitude” Baby business From a legal point of view: The woman who gives birth to the child is usually recognized as “legal mother”

Objections to Surrogacy Feminist orientations: Importance of pregnancy in a woman’s personal history. This Objections to Surrogacy Feminist orientations: Importance of pregnancy in a woman’s personal history. This experience impacts their lives, leading them to a greater understanding of themselves, establishing bonds between women. Surrogate mothers give up their extra property rights (the ones concerning the legal status of a person, which are usually not traded)

Objections to surrogacy Power imbalances Acts of disposition of one’s body affecting the subject’s Objections to surrogacy Power imbalances Acts of disposition of one’s body affecting the subject’s physical integrity are generally prohibited by legal systems (for instance, Art. 5 of the Italian Civil Code) Lack of proportionality between risks/benefits Psychological pressures and negative effects: separation from the child after birth lack of autonomy Also radical feminist orientations in the US are in favour of banning surrogacy: intermediary agencies do not conduct appropriate medical testing/counselling, minimising risks while emphasizing benefits What about the rights of the child? In case of conflicting interests, the ones belonging to commissioning parents prevail.

Risks to surrogate mothers There a number of bioethical/legal/emotional/social risks: n n n autonomy Risks to surrogate mothers There a number of bioethical/legal/emotional/social risks: n n n autonomy in expressing an informed consent to participate in a commercial transaction involving their body may come out of hardship vulnerability to exploitation heightened chance of multiple pregnancies physiological outcomes (migraines, back pain, diabetes, high blood pressure, permanently impaired fertility, death in extreme cases) potential emotional attachment to a child that they must give away after delivery social consequences

Risks to the child n forming the “object” of a commercial transaction n becoming Risks to the child n forming the “object” of a commercial transaction n becoming “stateless” until adopted Open questions: n n n how should source countries deal with children born through surrogacy abroad when their citizens are the “intended parents”? If the source country prohibits this practice, is it appropriate for it to refuse to grant citizenship to the resulting children, in order to protect their best interest? Is it a morally problematic form of exploitation of most vulnerable subjects?

Current International trends It is possible to identify two trends at European and international Current International trends It is possible to identify two trends at European and international levels: n endeavours towards universally condemning surrogacy n devising harmonized standards for legalizing surrogacy

What about the role of the European Union? n The European Parliament adopted the What about the role of the European Union? n The European Parliament adopted the Annual Report on Human Rights and Democracy in the World 2014 and the European Union’s policy on the matter (30 November 2015). n n In this report, the Parliament condemned all forms of surrogacy, as it ‘undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity. ’ In 2011, it adopted a resolution, where it acknowledged the link between surrogacy and human trafficking by saying that ‘surrogacy […] constitutes an exploitation of the female body and her reproductive organs.

Initiatives by the Council of Europe Ongoing discussion on surrogacy at the Parliamentary Assembly Initiatives by the Council of Europe Ongoing discussion on surrogacy at the Parliamentary Assembly of the Co. E: n n n The Draft Report on “Human rights and ethical issues related to surrogacy” (Rapporteur: De Sutter) openly supported a framed legalization of surrogacy In March 2016, the Council of Europe’s Social Affairs and Health Committee voted against this draft report. Recent developments - Council of Europe: Children’s rights related to surrogacy , Report (21 st September, 2016), the Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly Rapporteur: Ms Petra DE SUTTER, Belgium. New rejection in October 2016.

Surrogacy and human rights the “principle of non-commercialisation of the human body” is recognised Surrogacy and human rights the “principle of non-commercialisation of the human body” is recognised in several important human rights documents, such as: n Art. 21 of the Convention on Human Rights and Biomedicine n Art. 3 of the EU Charter of Fundamental Rights The connection between the limits to the commericialisation of human reproduction and human rights is explained in the Oviedo Convention’s Explanatory Report on Art. 21: n Interpretations of human dignity as “empowerment” and “constraint” pertain to this context n As for children’s right, their right to know their parents (Art. 7, Convention on the Rights of the Child) should be equally taken into account

Surrogacy challenges to EU values: n equality n justice n freedom and autonomy (Development Surrogacy challenges to EU values: n equality n justice n freedom and autonomy (Development scholars, such as Amartya Sen, often define consent under such compromised conditions “adaptive preferences”. Unfavourable circumstances can distort preferences so that people’s subjective views become an unreliable measure of their wellbeing: according to M. Nussbaum, “the poor and deprived frequently adjust their expectations to the low level of life they have known”. Moreover, empowerment is key to freedom, which is clearly at stake in this specific field). n non-discrimination

Theoretical perspectives on the moral limits of markets 1) Lines of thought on the Theoretical perspectives on the moral limits of markets 1) Lines of thought on the moral limits of markets: n n M. Sandel/E. Anderson M. Sandel considers the case of contracts in reproductive capacity (i. e. commercial surrogacy). Should we enforce these contracts? Arguments raised: 1) a surrogate mother cannot be expected to know in advance how she would feel about her baby after birth. She does not have the relevant information to decide (psychological aspects); 2) a child has an inalienable right to its actual mother (the biological mother). Any mother-child bond created by nature is stronger than any “bond” created by contracts. Therefore, objections to enforcing surrogacy contracts (vs. libertarian/utilitarian perspectives):

Theoretical perspectives on the moral limits of markets - - Flawed consent can arise Theoretical perspectives on the moral limits of markets - - Flawed consent can arise either because of coercion or flawed information (issues of autonomy/freedom linked to bargaining power). Beyond informed/uninformed consent, it is de-humanizing to buy and sell the right to a child, to make childbearing a market transaction. - In this context, We should ask ourselves if money: - widens inequality gaps (injustice argument) - Negatively affects human behaviour (corruption argument)

Theoretical perspectives on the moral limits of markets n n n Elizabeth Anderson: “…by Theoretical perspectives on the moral limits of markets n n n Elizabeth Anderson: “…by requiring the surrogate mother to repress whatever parental love she feels for the child, contract norms convert women’s labour in a form of “alienated labour”. Her labour is alienated because she must divert it from the end which the social practices of pregnancy rightly promote: “an emotional bond with her child”. Anderson suggests that certain goods are properly valued in ways other than use. What are other ways of valuing and treating goods that should not be open to use? Respect, appreciation, love, honour. There are many modes of evaluation, beyond use. Certain goods are not properly valued if they are treated simply as objects of use. Is utility the only proper way of treating goods, including procreation, childbearing? We should ponder whethere are certain goods, which are properly valued in a way higher than mere use. She relies on Kant’s argument of human dignity and people’s duty to act according to their end.

Human body and property rights theories: n n n Property conception: we own our Human body and property rights theories: n n n Property conception: we own our body parts, therefore we should be free to make any voluntary and autonomous decisions (i. e. selling body parts for whatever reason, taking risks etc. ) involving our bodies, as long as we refrain from causing harm to others (Nozick, Harris, libertarian approach). Non-property conception: this view considers the human body as a whole (holistic approach) Market-inalienability conception (Rose-Ackerman, 1985): property rights are recognized (also whenever affecting physical integrity) as long as interventions in the human body involve “gift transfers”.

Thank you for your attention! E-mail: l. persampieri@lumsa. it Thank you for your attention! E-mail: l. [email protected] it