Definition: Surrogacy is defined as a medical practice or a medical act in which a woman carries a child belonging to someone else. The Women, who carries the child, will not become the legal parent of the baby in accordance with the surrogacy agreement signed between both the parties, the biological mother (Surrogate mother or gestational carrier) and the couple intending for a surrogate child. The surrogate mother uses medical techniques like IVF and artificial insemination procedures to become pregnant (Andrews and Lori, 1984).
ETHICAL ISSUES CONCERNING SURROGACY:
Ethics is defined as a branch of philosophy which deals with the concerns of morality. Ethics of surrogacy distinguishes between the right, wrong, vice and virtue of the practice. Surrogacy is a practice in appropriate accordance with the principles of AHRA, Assisted Human Reproduction Act, 2004. However, the act condemns the use of surrogacy on a commercial scale. There are various ethical issues concerned with surrogacy out of which the main concerns are defined below:
Whether the practice of surrogacy is moral or immoral: Research focuses that some investigations on surrogacy treat it as immortal or illegal and they strive to make it banned by the governmental policies. On the other hand, investigations also suggest of defending the charge of immortality by stating that surrogacy is fundamental freedom as per the liberty argument and a part of principles of autonomy, whereby an individual is allowed to make informed decisions about their personal matters (Pollard, 1994). As per the liberty argument, the two main ethical issue raised are freedom of contract and reproductive freedom (Andrews, 1988). Freedom of contract describes about the authority of an individual participating in surrogacy to alter the terms of contract according to the welfare of their own and the child intended to be adopted by surrogate mother. In this regard, the consent of selling and adapting a baby according to personal requirements is rejected as a legitimating device (Mc Connell, 2000). In addition to this, another promising defence in surrogacy is freedom of reproduction. According to this freedom, a women has the right to give birth to children as surrogate and other women will be able to contact these surrogates in need.
In addition to morality and autonomy, other ethical considerations include beneficence and non-maleficence (Principles of biomedical ethics, 1988). Beneficence refers to the actions of medical professionals to improve the wellbeing of the patients. Medical practitioners argue that as long as surrogacy is not made commercial, it is better to be initiated in the patients who cannot bear children on their own to satisfy the psychological needs (Cook et al., 2003). Non-maleficence is defined as a term of medical ethics which concerns with the practitioners and medical staff not to do any harm to the patients first and later do good to them In terms of surrogacy, this can be regarded as a part of good medical practice when it is not exploited in terms of autonomy of women (Joseph, 2003).
Further medical ethical issues like fidelity requiring loyalty between the patients and the practitioner is important to maintain certain sensitive issues of surrogacy like the information of biological or surrogate mother to the third party and maintaining privacy to the details in terms of the whereabouts of the surrogated child to the mother (Robert, 1991). Another aspect dealing with medical ethics in the same context is veracity where medical staff is instructed to deal with patients honestly. In surrogacy, medical practitioners are advised to practice veracity in accordance to medical situations. In situations concerning the identity, the staff prefer violating this principle for the well being of the child in terms of identity and Veracity is utmost important in cases of surrogated mother to make her informed about the future living of the child unless not questioned (Robert, 1991).
Justice is also discussed in the same context to be observed specifically relating to the requirements of the patient. There are many cases in which the surrogate mother seeks justice in terms of payment or contract related issues, the practitioner or medical staff is advised to maintain reliability and compassion in dealing with these issues to ascertain justice (Joseph, 2003).
Ethical dilemmas in surrogacy are many and some of them include issues with the contract, parental status, rights of participants, unenforceability of surrogacy agreement, transfer and registration of parenteral status, suitability of participants, custody of the child and alternate proposal for assigning custody, payment to surrogates, intermediaries involvement and unauthorized agreements (Nisha Menon, 2009). The government bodies and medical staff is required to coordinate with the staff in accordance with the surrogate mother and patients approaching surrogate mother to maintain justice in the ethical issues (Ottawa, 1993).
Legal aspects relating to surrogacy:
There are various legal questions linked to the magnitude of ethical considerations for surrogacy (Sue, 2007). The main issues are if there are any laws specific to surrogacy? Is surrogacy illegal? Is there any violation of law in baby selling or is payment necessary for the services instead of surrogate mother? Is the public policy against the contract of surrogacy? Steps initiated in case surrogate mothers are not willing to give away the child? How able is the husband of infertile mother to establish paternity rights? Who all are required to participate actively in deciding the welfare of newborn and the surrogate mother? How far does prohibition of surrogacy meet the needs of infertile women through other measures? How far is privacy of individual affected in protecting the rights of the surrogate mother?
English Legal system and NHS legislation: The English legal system and the legislation of NHS analyses and examines the legality of surrogacy in these terms. The British medical association proposes that the interest of the couple are exceeded in comparison to social and legitimate considerations when compared to the interests of children which tend to be primary (BMA, 1987). Another 5 page report of the committee of inquiry in to human fertilization and embryology proposes that legislation should be introduced in regards with surrogacy to make it legal and decided to declare all the arrangements to be regularized by a licensing authority (Department of health and social security, 1984). Further, the department of health and social security declared in relation to legislation on human infertility and embryo research that maternal and paternal issues should be discussed as a part of surrogacy to give a clarification of enforceability of law (Department of health and social security, 1986). Lastly, another act which defines the legal right of surrogacy is in relation to act proposed by Surrogacy agreement of Great Britain which states that no person is allowed to take part in commercial negotiations of surrogacy legally and such persons would be decaled guilty. The NHS practices in accordance with the legal requirements framed by the law of Great Britain to maintain ethical issues with professional conduct.
Duty of care and Negligence: Surrogacy and issues in relation to surrogacy are taken on high priority by medical professional bodies and bodies of law. There are many initiatives taken to avoid negligence in these issues and lack of care in these issues would lead to detrimental effects and loss of ethical principles. All the surrogate mothers and couples intended to seek surrogacy rely upon these principles (Sue, 2007).
Informed Consent: It is utmost important and required to take a consent of the surrogate mothers before accepting the agreement to ensure that they understand the terms and conditions of agreement which would avoid the disparities between the two parties in future (Nisha Menon, 2009). Informed consent forms the first step in initiating surrogacy agreement (Cook, 2003).
Human Rights Act 1998, Confidentiality and Data Protection: According to Human rights act proposed in 1998, confidentiality and data protection forms an important issue. According to the act, surrogate mother and couple intended for surrogacy seek protection of their data confidentially to avoid any further issues of revealing information to third parties which would affect the future of the child and the parents (Robert, 1991).
PROFESSIONAL aspects relating to surrogacy:
Many investigations and research work done in the past emphasizes upon the professional aspects relating to surrogacy. The professional aspects of surrogacy are influential in maintaining quality and taking effective decisions pertaining to the law. The governance of professional entity, NHS is regarded as decision maker underlying the law proposed by the health system of United Kingdom. According to the law framed by the government, agreement procedure and commercialization plays an important role (Sue, 2007).
Guide to the NHS (formerly the Patients’ Charter) and its implications for practice: The Guide prescribes the governing body NHS to work in accordance with the regulatory agencies and health care institutions to work in accordance with the practices. Some of the practices proposed for the code of conduct include: Compliance with law, maintaining confidentiality, resolving disputes to justify needs of surrogate mother, participating in education of patients, marinating compassion towards issues, prioritizing needs of the mother in accordance with the couple seeking surrogacy and determining the welfare of the child as their first priority (Department of health and social security, 1986). All the health organizations seek continual development and improvement with the amendments in the law and focus to work on non-commercialization of the act (BMA, 1987).
NMC code of conduct and other professional codes and their implication for professional practice: The NMC provides the code of conduct for medical professionals and propose the implication of professional practice in accordance with these regulations. The code of conduct pertains to all the medial staff and the participating bodies in surrogacy. The NMC code of conduct implicates the necessity of professionalism in the sensitive issues and demands appropriate training and education for all the participating units (BMA, 1987). The NMC revises the code of conduct regularly to match the requirements of the people in relation to the governing body (Department of health and social security, 1986).
Legal Accountability: Legal accountability is set up in accordance with the professional bodies and law agencies. There are laws demanding the regularization and licensing of surrogacy. In abiding with the law, legal accountability of every action related to surrogacy is studied and maintained. Failure of this results in proving the person responsible guilty (Department of health and social security, 1986).