Journal of Reproduction & Infertility
Volume:9 Issue: 2, 2008

Surrogacy is defined as a procedure through which the owner of the uterus carries the fetus of another woman and based on an agreement the surrogate mother will overturn the baby upon delivery to the couples who have provided the gametes. The eligibility of applicant couples seeking surrogacy treatment should be assessed in terms of their reproductive potentiality, as well as the uterus owner’s, to determine their therapeutic protocol by relevant specialists. In this regard, physical and psychological health assessments of the two parties, their full recognition of suggested therapeutic procedures, along with compliance of the treatment processes with legal, cultural, social and Sharia laws should be taken into account. Recognition of the surrogates’ motives can lead infertile couples to select the right candidate. Research on the subject has revealed that selection of surrogate candidates among relatives or friends minimizes problems raised by such treatment options. The health assessment of surrogacy candidates necessitates approval of their physical health conditions by endocrinologists, health of their reproductive system by gynecologists, mental health by psychiatrists and absence of infectious diseases by relevant specialists. Furthermore, the candidates should neither be addicted to any narcotics or banned substances, nor go to work and be preferably under 35 years old and have a history of at least one healthy child. In addition, further tests for complete assessments of physical health might be needed and ruling out pregnancy risk factors and particularly psychological preparations of both parties are a must. Consultations and mental preparation of parties will enhance the success rate of the treatment. Moreover, continuous supervision and consultation during and after treatment procedures also seem to be of importance. The significance of recognizing problems associated with surrogacy and medical, cultural, social and legal considerations should be born in mind. Reflection of commitments by the two parties in the agreement is an important factor for consultations to be a success. Existence of surrogacy laws will prevent imminent problems and mishaps resulting from unpredicted circumstances.

There are two historical paradigms in the Iranian family law: love law and libido law. The approach to surrogacy according to these two paradigms will be different. Understanding the two approaches is possible through understanding the four categories of love: 1. Libido: the passion of life and manifestation of sexual drive.2. Eros: the romantic love and the material of poem and literature. 3. Philia: the mere love purified from libido like the relatedness of father, mother and their children. 4. Agape: the spiritual love in mysticism. Love law ceases at libido but love law promotes to philia passing through libido and eros. The paper explains two approaches to surrogacy and prefers the love approach to libido. For example, the legal theory which nullifies surrogacy, suffers from its libido perspective. Moreover, the doctrine which binds the surrogate mother to return the child to the commissioning family, only for the consideration and payment mentioned in contract, is a libidinal doctrine. The thesis of this essay discusses that the mother should be determined by philia and relatedness criterion not by libido. Surrogacy in this essay is studied from a philosophy of law point of view. After describing its theoretical foundations in legal principles, the essay tries to prepare a jurisprudential response to the “Is and ought problem” of surrogacy by referring to the Iranian literature and mysticism. 1- In libido law, the concept of marriage is equal to sexual intercourse but in love law the purpose of marriage is relatedness of a man and a woman to each other and their children. 2- Libido law treats woman as an object and instrument, but love law tries to treat her as an end in herself. 3- In the literature of libido, law borders pornography but in the literature of love law it has a chaste language. 4- In libido love, this is only woman who has to remain faithful towards her husband but in love law the man is obliged to faithfulness to his wife and family. 5- Libido law, in spite of the term, treats libido in a cursory and perfunctory manner, but love law respects the values of libido and puts it in its correct place. For example, in the libido law if a man and a woman undertake, under marriage contract, to abandon sexual intercourse, this contractual term will be correct and effective but in love law, the term is certainly void because of the serious role of sexual intercourse in the frame of marriage and in faithfulness of both. 1. The theory that invalidates the contract of surrogacy is a theory of libido law which rejects having the child without sexual intercourse. 2. The theory that obligates the surrogate mother to give the child back is also in libido sphere because the requisites of sexual intercourse are presumed superior than relatedness of surrogate mother to her born child.3. On the other hand, the law should not have an inconsiderate conduct to libido. The continuity of philia differs from libido in being pure from lust and concupiscence, but we can not ignore the importance of libido in materialization of philia. The parents love their child because it is born after an amorous intercourse with a unity in the physical body of a man and a woman, and because the child is formed by their gametes. 4. Love is an accident in which human falls in with; it does not occur by choice. Therefore, the surrogate mother should not oblige herself, in her agreement, not to be attached to the child. Love is an act of God which frustrates the contract in this field; like any major force. 5. Parenthood is a legal fiction and a conventional presumption. In surrogacy, if the surrogate mother conceives, she is not the owner of the zygote like other normal or natural mothers. If the owner of zygote renders as mother and as she has not actually given birth to the child, like other natural mothers, she should not be presumed the mother by law. In the Iranian law, it is better to leave the case to judges and not to the legislature. The judge will presume the most related woman to the child as the mother. Regarding all circumstances, philia and relatedness in this field will be evidenced through the common sense of the judge. 6. The prima facie of the case is the most important evidence for judgment; the owner of the egg and the sperm who endorse surrogacy, as the last resort to parenthood, deserve the child and the burden of proof is on the surrogate mother to prove her prevailing philia. But, if a woman does not want to be pregnant because of aesthetic problems of pregnancy she has to expect not to be presumed as the mother of the child in the court. The burden of proof in this case is on the owner of egg to prove that her relatedness is more than the surrogate mother.

Surrogate motherhood's moral justification entirely depends on the ethical theory, which is taken from the normative ethics. Deontologists do believe that surrogate motherhood is morally impermissible in the light of Kantian notion of human dignity. In contrast, consequen-tialists focus on the pleasure and the pain of an action in order to arrive at its badness or goodness, morally speaking. In this article, firstly, deontologist's argument in favor of the imper-missibility of surrogate motherhood is formulated. Then, in order to undermine deontolo-gist's argument and make surrogate motherhood plausible from moral viewpoint, some ideas are utilized from act utilitarianism. As far as surrogate motherhood is concerned, formation of an ethical committee, composed of a specialist in ethics, a physician, a psychologist, and a sociologist, is proposed in order to concretize act utilitarianism concepts.

The question of parents informing their offspring of their origins is a critical point. The surrogacy triad is composed of the intended mother, surrogate mother and the offspring and disclosure of facts to the offspring, family and friends is an important issue for discussion. In this review article, we attempt to address this concern by Van den Akker's studies of sub-fertile populations: adoptive, IVF and intended mothers of surrogacy. Then, we try to review the attitude and preferences of the general population in similar presumptive situations by Chliaoutakis questionnaire. Intended mothers using gestational surrogacy are much more likely to tell the child it was conceived using third party involvement. ART mothers are most willing to tell the child it was conceived using IVF, and adoptive mothers are most likely to tell the child how it was conceived regardless of the third party involvement used. The general population preferred involvement of a healthy stranger to family members or friends when receiving gametes or a surrogate child, whereas the respondents preferred being a surrogate mother or donate oocytes to a sibling or a close relative; although the picture was different for being a sperm donor. They appear not to be too likely to involve their friends in any of the third party option. It is possible that pragmatic and altruistic factors compete with each other and that close genetic links from ones family are in competition with the social factors involved in rearing such a child. Appropriate counseling must continue to be advocated to assist parents in making decision to reveal the origin of the child but it is imperative to remind oneself that: “The right to a child should not be achieved at the expense of the rights of the child".

Surrogacy is a new approach for treating infertility in couples whose female partner lacks a functional uterus for conceiving or delivering a neonate congenitally or as a result of medical or surgical complications. The procedure has been in practice in Iran for the past few years. Understandably, the procedure has given way to many debates regarding the ethical, psychosocial and legal aspects of the issue. We reviewed the literature on surrogacy, as well as related legal issues in other countries. Amazing progresses in infertility treatment have paved the way for people who were desperately seeking a child of their own. This group includes couples whose female partner lacks a functional uterus to conceive and / or deliver a neonate. Surrogacy has made it possible for the couples to achieve their long-lived dream and other women could play the role of surrogate mothers for the couple’s future child, by carrying the fetus in partial or full modes of surrogacy. Separating roles of surrogate mothers and the parenting ones, many controversies regarding ethical, psychological and sociological points of view would rise. Legal problems may rise when a surrogate mother claims the baby. Ethically, the surrogate mothers health, her husbands and childrens consent and the accompanying risks should be taken into account. Probable psychological complications inflicting the mother or her family should not be overlooked too. The point that has raised a lot of opposition and concern is the sociological milieu surrounding the issue; where the procedure may turn to a market to exploit the needy and the poor. Therefore, some countries have adopted strict laws and have formed expert groups to assess and prevent possible problems in practicing surrogacy. Though, most studies depict that surrogacy carries few ethical or psychological problems for the involved parties including the baby. Humanistic aspects and fear of exploiting or abusing the disadvantaged need to be addressed carefully. It seems that ratifying laws regarding surrogacy and forming a committee to evaluate all aspects of surrogacy may prevent the probable aforementioned problems.

Surrogacy is one of the important new reproductive technosciences that contributes to medicalization of motherhood, providing an alternative method to natural fertility as well as a resolution to infertility. According to sociologists, medicalization is a multidimensional process by which natural and non-medical problems or conditions become defined, treated and managed as medical problems, using specialized vocabulary, professional approaches, particular instru-ments and interventions techniques. Reviewing socially constructed nature of surrogacy and its various social aspects and implications, this article shows how surrogacy serves to turn mother-hood, a natural and vital experience in women’s life, to the growing process of medicalization. This paper seeks to provide a sociological analysis of the constructionist nature and implications of surrogacy by reviewing the body of knowledge and literature developed in sociology. Drawing on the notion of medicalization, the paper is to show how surrogacy has contributed and continues to contribute to the medicalization of motherhood. Sociological analyses show that the alternative methods to natural fertility or new paths to cure infertility including surrogacy are socially constructed and have numerous and far-reach-ing sociological aspects and implications. The novel technosciences like surrogacy play a central role in dealing with, redefinition and accordingly construction of human problems and experience-es. Surrogacy, inter alia, introduces the new form of medicalization of motherhood by blurring the distinction between what is natural and what is made by mankind on the subject of motherhood. Like most of new medical and reproductive technosciences, surrogacy provides a new configuration of women’s lives and motherhood in particular that can be primarily characterized by medicalization or transformation of motherhood into jurisdiction of medicine.

One of the methods used for the management of human infertility is using another woman’s uterus called a surrogate uterus or a rented womb which can be in full or partial modes. In full surrogacy, we do not use the gametes of the bearer woman but in the partial surrogacy we do. In this article we will study civil responsibilities in full surrogacy. In other words, we aim to answer the question that in what conditions one is responsible for the damages of another person while on full surrogacy. We use civil responsibility in its broad sense, including contract responsibility and tort.Since there are no special regulations for surrogacy in the Iranian Law, we will refer to general rules, Islamic Jurisprudence (Fiqh) and the laws of other countries to find the best solution for the problems. For the validity of surrogacy contract, it is not enough to observe article 10 of the civil code or the general rules of contract laws but it is necessary to ratify specifically addressed laws. In the mean time, the couples who want the child and the bearer and her husband (if she is married) must negotiate about all the issues and obligations so that the limitations and responsibilities of the two parties are reflected in the contract completely. On non-contract responsibilities, there is either no valid contract at all between the bearer of the damages and the person who is deemed responsible or there is no relation between the damages occurred and the breach of the contractual obligations but there is a breach of general duties and customs instead. The regulations relating to civil responsibility are broad enough to include our subject too. As the surrogacy subject is rather new and customs have not been developed accordingly, problems are likely to arise where one can not determine the moment that faults occur. It seems that the Iranian Parliament should intervene and ratify certain laws and regula-tions for surrogacy, as surrogacy might have some social consequences with resultant problems if ignored or not addressed legally.

The law of Iran makes no provisions for contracts such as foster parents include-ing surrogacy. Surrogacy is the practice whereby one married woman carries an embryo for another with the intention that the child should be handed over after birth or after a specific period of time. Agreements cannot be made to transfer parental responsibility. Commercial arrange-ments for surrogacy are illegal. An unmarried woman can not act as a surrogate mother. Under a surrogacy contract, a surrogate mother acts as for the commissioning parents and agrees to hand the child over to them soon after birth. The surrogate mother cannot change her mind after handing over the baby. As a general rule, the child's legal father is the man whose sperm leads to the child's creation; except where the sperm is used after a man's death or where the man is the donor for the purpose of a licensed treatment under article number one of Irans amendment to Act 1382 regarding sperm donation to infertile couples.