OUTLINE

I. INTRODUCTION

OVERVIEW

This paper will discuss about the

BACKGROUND AND HISTORY

The concept of surrogacy traces its origin back in ancient times. In various cultural and religious

literatures, the concept was well known and practiced. One of the famous religious literature started with

Sarah and Abraham, as narrated in the Bible. Sarah, the wife of Abraham, could not have children in the

beginning. She gave her handmaid, Hagar, to her husband Abraham to produce them a child. 1 Hagar

gave birth to a son. Sarah became jealous, the surrogate mother became proud and refused to give up

the identity of the child and consequently both the mother and her child were ousted.

There are cultural belief systems that abide with the rules of surrogacy and those that do not agree can

be thrown out of their families. Numerous religions and civilisations actually celebrate the surrogate

mothers, for their good deeds and service to others. 2 The history of surrogacy was first documented in the

late 1800s. In one of the American Indian tribe, if a woman was found to be infertile, the husband would

be allowed to take another woman and make her pregnant, and carry a son to continue on his tribe. The

barren wife would have no biological ties to the child.

Infertility has historically been viewed as a medical and social problem which merits treatment and active

solution. Surrogacy is viewed as an alternative to adoption for those couple who have this problem,

although adoption may be part of the process. The advancement in the science of assisted reproductive

technology (ART) has created ever-increasing options to the person or couple who wishes to begets a

genetically related child. According to Dr. Nandita Adhakari (Law and Medicine: Surrogacy), factors such

1
Genesis 16:2
2
Ashley Kate, “History of Surrogate Motherhood
as the growth of infertility in modern society, coupled with the declining number of children available for

adoption, the development of the surrogacy contract and commercial surrogacy agencies and the

introduction of new technologies such as in vitro fertilisation (IVF) which can be combined with surrogate

motherhood, have resulted in increasing publicity and public interest in the formation of surrogacy

agreements between infertile couples.

The surrogate relationship provides some couple with hope of raising a child genetically related to at least

one of them. Today, people around the world, regardless of marital status or sexual and gender

orientation, consider this as an option to have a family. However, this relationship – whether traditional or

gestational has been a center of controversy, both questioning ethical validity of the relationship and

creating an unchartered territory that can become very stressful and confusing for all parties involved.

One of the landmark incidents involving surrogacy was The Baby M case of 1984. It was the first instance

where American courts’ dealt with the validity of a surrogacy contract and the nettlesome question of who

should have custody of the child. In 1984 a New Jersey couple, William Stern and Elizabeth Stern,

contracted to pay Mary Beth Whitehead $10,000 to be artificially inseminated with William Stern's sperm

and carry the resulting child to term. Whitehead decided to keep the child after it was born, refused to

receive the $10,000 payment, and fled to Florida. In July 1985, the police arrested Whitehead and

returned the child to the Sterns.3 In 1987 the New Jersey Superior Court upheld the Stern-Whitehead

contract and took all parental and visitation rights away from Whitehead and permitted the Sterns to

legally adopt the baby, whom they named Melissa Stern. A year later, the New Jersey Supreme Court

reversed much of this decision and granted parental rights to the surrogate mother, declared the contract

unenforceable but allowed the Sterns to retain physical custody of the child.4 This case received different

views and inspired state legislatures in United States, Europe and Russia to pass laws regarding a and

relating to surrogate motherhood.

3
In re Baby M., 217 N.J. Super. 313, 525 A.2d 1128 (1987)
4
In re Baby M., 109 N.J. 396, 537 A.2d 1227 (1988)
However, in the 20th century, another factor emerged which contributes to the increased patronage of

surrogacy. The emergence of nontraditional families has become increasingly common, more and more

individuals have become single parents by choice. Thousands of single men and women add to their

families, many of them through surrogacy. The increasing number of Gay couples, most commonly men,

will sometimes use donated eggs and the services of a surrogate mother to create a family.

With the advent of social media, surrogacy has been publicly discussed and practiced by social media

influencers and famous television and media personalities. There are many reasons presented as to why

these famous celebrities chose to take the route of having a baby through a surrogate mother but this has

brought the topic of surrogacy in public scrutiny – both leveling acceptance, confusion and rejection.

WHAT IS SURROGACY

Now let us define what surrogacy is, the functional categorization of surrogacy and the major players in

this arrangement. Surrogacy is a form of assisted reproductive technology (ART) where a woman (the

surrogate) offers to carry a baby through pregnancy on behalf of another person or couple and then

return the baby to the intended parent(s) once it is born. 5

Legally, surrogacy is defined as an arrangement whereby a woman agrees to become pregnant and

deliver a child for a contracted party. 6 This is a relationship in which one woman bears and gives birth to a

child for a person or a couple who then adopts or takes legal custody of the child. In surrogate

motherhood, one woman acts as a surrogate, or replacement, mother for another woman, sometimes

called the intended mother, who either cannot produce fertile eggs or cannot carry a pregnancy through

to birth, or term.7

Black’s Law Dictionary defines a surrogate mother as a woman who carries out the gestational function

and gives birth to a child for another; a woman who agrees to provide her uterus to carry an embryo

5
https://www.ivf.com.au/fertility-treatment/donor-program/surrogacy
6
In re Marriage of Moschetta, 25 Cal. App. 4th 1218 (Cal. App. 4th Dist. 1994)
7
ttps://legal-dictionary.com
throughout pregnancy, typically on behalf of an infertile couple, and who relinquishes any parental rights

she may have upon the birth of the child. A surrogate mother may or may not be the genetic mother of a

child.

In this paper, Intended Parent pertains to the person who, for some reasons, cannot successfully bear a

child to and hires a surrogate instead. Their egg or sperm may be a part of the transferred embryo, and

they may be a single parent or married. Intended parent may also include those single parent surrogacy

or LGBT surrogacy.

Surrogacy is so complicated that it can be performed and delivered in several ways, tailored to everything

from [1] who will be genetically related to the baby [2] to what kind of relationship intended parents and

surrogates want to have with each other and [3] to the amount of compensation involved. We will

categorize surrogacy depending on tits functionality [A] Genetic Relationship [B] Commercial Relationship

[C] Location of Surrogacy and [D] Mediation Relationship.