Reasons for using surrogates vary, but are mostly related to female infertility due to a dysfunctional uterus. As alternative for surrogacy, uterine transplants are pioneered, mainly in Sweden and some Islamic countries. If artificial uteri would become a viable option, the entire issue of surrogacy might become moot.
We can distinguish two main different types of surrogacy:
- Traditional surrogacy;
- Gestational surrogacy.
These types can be further distinguished in several sub-types, but these are irrelevant for this article.
In traditional surrogacy the surrogate is the genetic mother of the child. The surrogate is impregnated either through natural or artificial insemination. This type of surrogacy will be void under Mordan law.
In gestational surrogacy, the surrogate is not the genetic mother of the child. Instead another woman provides an egg – either the intended mother or an egg donor – which is typically fertilized through IVF.
Whether this type of surrogacy will be legal under Mordan law, will depend on whether artificial uteri will become a viable option (this will be discussed later on).
In many jurisdictions (gestational) surrogacy is allowed, but not commercial surrogacy. In other words it is not allowed that a woman earns money by carrying another person’s child, save for a small compensation for expenses.
As pointed out by Robin Baker, the opposition against commercial surrogacy is quite hypocrite, as it is accepted that fertility doctors (but also lawyers involved in legal cases on surrogacy) to earn a living from their services. No real reason exist to deny women to [the right to] make a living by offering themselves as surrogates – unless one opposes surrogacy at all.
Actually a strong case could be made for commercial surrogacy. A surrogate has to endure all hardships of pregnancy and has to make several sacrifices. To deny such women from demanding a decent price for their services, is in our opinion disgusting. It is essentially a type of severe misogyny.
Nevertheless surrogacy in general is surrounded by multiple, more serious issues. A serious concern is that a surrogate decides to keep “her” baby, which is a common problem. It is a natural instinct for a woman to develop a strong affectionate bond with her unborn child. Even if the surrogacy begun in good faith by the surrogate, she might be overpowered by these emotions that she might change her mind.
Such unwillingness to give the child to the intended parents will result in court cases. And without adequate legislation, courts could be tempted to side with the surrogate. Even if the surrogate is not the genetic mother.
In our opinion surrogacy legislation should require that prospective (commercial) surrogates to be psychologically screened before they got pregnant. Also traditional surrogacy should be void, in order to create a sharp distinction between the genetic mother and the surrogate. Intended parents should either use their own eggs or that of donor, but not those of the surrogate.
If artificial uteri were available, this whole issue could be avoided. An artificial uterus is a machine without emotions, let alone it could develop any bond with the unborn. Once this would be a viable option, the case could be made to outlaw surrogacy, both commercial and non-commercial.