UNESCO Chair in Bioethics

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  • Bioethics and Law Observatory
  • UNESCO Chair in Bioethics
  • University of Barcelona
  • Ave. Diagonal 684,
    Faculty of Law
  • 08034 Barcelona
  • Tel. (+34) 93 403 45 46
  • obd.ub@ub.edu

The Observatory on Bioethics and Law of the UB takes a position against surrogate pregnancy

12.02.2019

The debate on surrogate pregnancy in Spain has recently intensified, with initiatives such as the law presented by the political party Ciudadanos to regulate this practice. In this context, the Observatory on Bioethics and Law of the University of Barcelona has published the Document on surrogate pregnancy. The text takes a positioning against this practice, and states it is not a legal alternative to have children since it means a “commercialization of the human body” and for the “positions of vulnerability it creates”. However, in case the Spanish legislator approves the surrogate pregnancy, the document by the Observatory recommends a series of warranties the law should include.

The report defines surrogate pregnancy as the process that “allows a couple to have a child through the collaboration of a woman who agrees, with or without payment, to undergo assisted reproduction techniques to get pregnant and deliver the baby to the intended parents”. The document mentions several international legislative frames on this issue. In Europe, surrogate pregnancy is only accepted in the United Kingdom, Greece and Portugal, and it is banned or not regulated in the rest of the countries. Regarding Spain, “there is no specific prohibition but a declaration of nullity of contract, so that the pregnant woman is the mother of the child for all legal purposes”. Regarding the legal obstacles in Spain, and in Europe in general, some people visit other countries where surrogate pregnancy is legal. Once they come back with the baby, they face some legal difficulties to get the recognition of the filiation, although the court can accept this tie regarding the principle of protection of the minor’s interest. Regarding this practice, the document warns “it is not advisable to end up accepting the policy of fait accompli, since this would contribute to normalize a socially questioned behaviour”.

The text goes against this practice which means “commercialization of the human body” and the “positions of vulnerability it creates”

The Observatory notes that surrogate pregnancy “raises many questions on surrogate’s rights as well as the exploitation of women”. “It is not another assisted reproduction technique, since it requires the participation of a woman in the reproductive project of others which is different from any other reproductive collaboration”, says the text. It mentions this involves “being pregnant while trying not to get involved, neither psychologically nor physically, and relinquishing any personal, affective and legal bond with the child”. The authors of the documents state that substitute pregnancy produces an instrumentalization and sexual objectification of the woman and that “not every human relationship has to be appropiated by market dynamics”. In this sense, they warn about the risk of exploitation of vulnerable women in poor and developing countries. Regarding the argument stating there is no exploitation if the woman gives her voluntary consent to be the pregnant woman, the authors note that “the possibility of individual choice is determined by the social and economic position”. It mentions the principle that the human being and body parts cannot be an object for benefit, and since there is a market of thousands of million euros around surrogate pregnancy, “measures should be taken so that certain aspects of the reproductive activities are not organized as mere trade relations”. If after these series of reasons, the Spanish legislative power approves a law that accepts surrogate pregnancy, the document proposes a series of minimal guarantees the legislation should fulfil. A legal control would be required and it would have to be a practice free of charge in order to avoid profit from agencies. Also, the surrogate’s consent could operate in a similar way so that it would be necessary to express consent before the use of any assisted reproduction technique, and a few weeks after giving birth”.

The document, included in the Collection of Bioethics, is coordinated by the lecturers of the UB María Casado and Mónica Navarro Michel, and is part of the Collection of Bioethics of Editions and Publications of the UB, which obtained the Seal of Quality in Academic Edition (CEA-APQ), given by the National Agency for Quality Assessment and Accreditation of Spain (ANECA) and the Spanish Foundation for Science and Technology (FECYT). The report is published in Catalan, Spanish and English.