Written by Ida Parisi
Guest writer, Ida Parisi, graduated from LUISS Guido Carli University (Italy, Rome) with a Master’s degree in law. Her final dissertation topic was “Surrogacy in Italy and the United Kingdom.” The legal research that she carried out allowed her to deepen her knowledge of the subject and become familiar with all aspects of surrogacy law.
In 2012, she was an intern at the law firm Vorzimer Masserman. During her internship, she had the opportunity to practice within the surrogacy field of law, learning how surrogacy law in California really works.
In the same year she also attended the ASRM annual meeting in San Diego. These experiences increased her enthusiasm for fertility law in general, and surrogacy law in particular, and made her very knowledgeable in this field.
She published an article for an Italian bioethics legal review called “Biodiritto” about the Italian and Californian surrogacy legal systems.
She currently attends a school of specialization of legal professions where she studies legal issues and legal judgments.
The growing surrogacy phenomenon is an article of debate within the field of assisted reproduction. These medical procedures (in particular, artificial insemination) require the various types of surrogacy.
In addition to representing an evident challenge to the “natural” meaning of motherhood, surrogacy is considered a sort of “scientific extension” of the natural human ability to reproduce, as well as a form of hetero-integration of the biological or physical inability of the woman to procreate. This inability requires the help of a volunteer (the surrogate mother), who “loans” her womb, through which she permits the intended parents to realize their dream of having a child.
Motherhood, a path full of unique emotions and feelings, is no longer solely the prerogative of one mother, but a shared experience between two or more women. When the child is born, all involved will have succeeded in their different roles. The “first mother,” who provides her own eggs, plays a key role in the contribution of the biological material. The “second mother” carries him for nine months and gives birth to him. The “third mother” takes care of him and helps with his growth and education from the moment he is delivered. Therefore, the role of mother is attributed to multiple women who address different functions from the biological to the reproductive to the social.
In fact, this is what happens when someone decides to follow the surrogacy process, otherwise known as “womb rental.” It is best to distinguish the two types of surrogacy. They may seem similar, since they share an identical core consisting of the obligation of a woman to carry a pregnancy to term and to relinquish the child to the intended parents, but if we properly analyze the two, it becomes clear that they are very different. Traditional surrogacy is the practice in which a woman, who can be paid for her services or not, rents her womb to a couple who are unable to have children because of the intended mother’s physical inability to deliver a child. In the first type of surrogacy, the surrogate mother provides her womb and her own eggs which are fertilized with the sperm of the intended father or the sperm donor. In this case, the term “womb rental” (gestational surrogacy) refers to a situation in which the surrogate mother carries a child created with genetic material belonging to the intended father or the sperm donor, but not to the intended mother. The second practice is essentially the same, except that the intended mother either has her own eggs to be fertilized with the sperm of the intended father/sperm donor or the intended parents use an egg donor to create an embryo that is inserted into the surrogate mother’s womb.
In the first case, the surrogate mother provides the couple her womb and her eggs, so the child is genetically linked to her and to the intended father/sperm donor. In the second case, the surrogate mother merely carries the embryo, which is created with eggs and sperm from the intended parents or from other donors.
This causes a splitting of the naturalistic contribution, as the woman who provided the fertilized eggs is the “genetic mother” and the woman who carried the child is the “birth mother.” Therefore, it is necessary to make a choice between two partial truths: the genetic one and then that of childbirth. Both are equally important because the first involves the transmission of genetic material to the child, while the second creates an intimate connection to the vital functions of the surrogate mother who will also have to face and bear all risks and sacrifices associated with the pregnancy.
Some debates arise around the practice of being a surrogate mother. Often, the surrogate ends up being seen merely as an “incubator” that will carry a child belonging to someone else in her womb for nine months. These debates are not new though.
It is in fact possible to find traces of surrogacy in history, particularly in The Bible. For example, it is said that Sarah, who was seventy-five, convinced Abraham to have a child through his slave girl, Hagar, as well as Jacob had two children by the slave of his wife, Rachel. Moreover, the ancient Romans practiced ventrem locare, a custom in which a man gave his wife to a friend who had not had the fortune to marry a fertile woman in order to take her back immediately after she gave birth to his friend’s child.
In any case, especially nowadays, surrogacy sparks a deep interest in many couples because it is often their only way to procreate. Their interest enhances and strengthens surrogacy or so-called “reproductive tourism,” which often results in a breach of territorial boundaries into countries where laws concerning assisted reproduction are more flexible.
In fact, it is the international spread of such agreements that led to The Permanent Bureau of The Hague Conference, in collaboration with the University of Aberdeen, to begin in 2011. This bureau focuses on comparative research on the development of the discipline of surrogacy in relation to internal law and private international law. It has been directed to create international legislation common to all states, which would contain provisions regarding child protection and allocation of parenting that would eventually serve as a point of reference in case of regulatory conflicts.
However, it is extremely important to analyze the attitude that some legal systems have taken toward the surrogacy phenomenon, especially in relation to laws or case laws. If we compare the Italian and the Californian legal systems, it is easy to see that a process like surrogacy could, from a practical point of view, be carried out under the same evolutionary line, and at a theoretical level, disciplined and faced in a completely different way
The Italian legal system still shows a negative attitude toward the conclusion of such agreements, which can be deducted both from case law and from the regulatory level.
The first case law on surrogacy, the judgment of the Court of Monza in 1989, expressly stated the nullity of such agreements included in the category of atypical contracts.
The judges of the Court of Monza, following a request of enforcement of a commercial surrogacy agreement held that these agreements were void, pursuant to article 1418 of the Civil Code in conjunction with article 1346, due to the unlawfulness of the object, in fact it was both illegal and impossible. The judges also stated the contrariety of surrogacy agreements to the principles contained in articles 2, 30, and 31 of the Constitution and, in particular, the principle of non-fungibility of personal and financial obligations related to parental authority of the biological parents, the child’s right to grow up in a family formed by them, and to have a family replacement only in the event of failure or inadequacy of the natural parents, and the right of every child to a single, common status filiationis. In addition, judges focused their attention on the contrast existing between surrogacy agreements and the principle of the unavailability of personal status that cannot be covered by the contract, and in any case it is forbidden to create, modify or extinguish them contractually. Moreover, they held that the agreement was in contrast with article 5 of the Civil Code which prohibits all the acts of disposition of the body which are contrary to law, public order and morality.
Thus, the motivation appeared to be the impossibility to find a real reproductive right in the Constitution, in the light of which such agreements could not be considered valid and legitimate, and even the inadmissibility, from the moral and social point of view, of the commercialization of a function so high and delicate as motherhood, which brought the latter to be, inevitably, in sharp contrast with the concepts of morality and public order, resulting in a disruption of the sharpness of social relations.
The turning point in the case came with the judgment of the court of Rome in 2000, in which the court, granting an emergency measure pursuant to article 700 of the Civil Procedure Code, authorized a doctor to perform the implantation of the embryo, belonging to the intended parents, in the uterus of another woman who voluntarily had offered to carry the embryo on her own, holding in this way that the surrogacy agreement was valid.
On that occasion, the judge made an evaluation of the interests involved thought to grant the measure as matched by the existence of the conditions of the fumus boni iuris and the periculum in mora, respectively identifying them in reproductive right, and the risk of a loss of the proliferation of the embryos in question.
In particular, the Court of Rome recognized a right to procreate, following a more general analysis of article 1 of Law 194/1978 on social protection of motherhood and abortion, which recognized a right to a conscientious and responsible procreation and ensured the protection of human life from the beginning. The latter article seemed to be directly connected to the right guaranteed by article 2 of the Italian Constitution, related to the development of personality.
The right of procreation was, therefore, generally intended as the right to use all the means that scientific progress could offer to satisfy the right itself, to reach an “individual full auto-realization” and a freedom to consciously determine the size of their own family.
The Court also concluded that all the parties had executed an atypical contract, pursuant to article 1322 of the Civil Code, that states that atypical contracts can be concluded only if they realize interests worthy of protection, according to the Italian law system. In that case, the interest worthy of protection could have been identified as the desire of the intended parents to become parents, which was considered, therefore, an expression of the right to procreate, and with reference to the life of the fertilized embryo, in the principle that human life must be protected from the outset.
Such an agreement, according to the Roman judges, was deemed lawful and legitimate, and therefore, it was not contrary to article 1344 of the Civil Code, which regulates contracts in evasion of the law, because the surrogacy agreement was not intended to circumvent the rules on adoption agreements.
However, with the coming into force of law no. 40 of 2004, which is the first true regulatory certainty in the confused surrogacy legal system, the more open approach has lost its relevance, since the legislature has now expressly forbidden any form of surrogacy, as well as the practice of heterologous artificial insemination, which is the medical technique used in the surrogacy process. While article 4, paragraph 3, prohibits the use of heterologous medically assisted procreation techniques and article 12, in terms of general prohibitions and sanctions, provides in paragraph 1, a fine of from 300,000 to 600,000 euros for those who use gametes unrelated to the applicant couple, in violation of the prohibition of heterologous fertilization aforementioned. Secondly, paragraph 6 of the same article, stipulates that “whoever, in any form, produces, organizes or advertises the sale of gametes, embryos, or surrogacy, shall be punished with imprisonment from three months to two years and a fine ranging from 600,000 to one million euro.” Moreover, there is an additional penalty of suspension, from one to three years, from professional practice for the person who practices a health care profession, who has been convicted for one of the offenses listed above.
Having been banned in such a drastic way, surrogacy is evidence of the prudent attitude of the legislature, directed to protect the rights of all those involved in the procreative process, including the unborn child, and to prevent the exploitation of surrogacy in Italy.
At this point, the provisions contained in article 5 of the Civil Code about the acts of disposition of the body are important. These acts are prohibited if they cause a permanent diminution of the physical integrity, or are otherwise contrary to law, public order or morality; therefore, the rule recognizes the legitimacy of all other acts of disposing of one’s body that do not fall into the category of those prohibited, in derogation from the general principle of unavailability that, together with that of non-transferability, non-prescriptibility and non-patrimoniality, applies with regard to the rights of personality.
According to a constitutional reading of the article, the interest which is mostly protected is the free development of personality, which coincides with the freedom of self-determination in decisions relating to an individual’s own body. Thus, under article 5 of Civil Code, can the act by which the surrogate mother decides to make her uterus and her gametes available for others to build and realize their desire to become parents be considered legal?
Moreover, it is important to state that the act of disposal with which a woman conceives and carries the child on behalf of others cannot be the object of a legal obligation. Can consensus to bear another couple’s child be considered lawful under article 5 of Civil Code?
In regard to the first question, after some careful doctrinal elaborations, it is possible to conclude that the incompatibility between the obligation and the risk that it could cause a reduction of the physical integrity of a woman, since gestation is not completely risk-free. It can be said that the same is sufficiently ensured by the multiple advances in medical science. Notwithstanding, it should be evidence that the contrariety of the obligation aforementioned to the law, public order and morality, as if on the one hand there is a violation of the provisions for the protection of the child, which require that the parent-child relationship has to be conducted naturally, that the unborn has the right to be raised in his own family, and that everyone may have knowledge of his or her genetic origin. Secondly, it is repugnant to the principles of morals and ethics commonly accepted and recognized by the majority of citizens, that a woman uses her genital organs to help other people.
Regarding the second question, however, it is fundamental to remember that consent, always required for acts of disposal, since they affect most personal relationships, has to be informed, free, responsible, and always revocable. In the case of a surrogacy contract, consent of the person entitled cannot be considered effective, except in some exceptional cases (sport activity, surgical activity, organ donation inter vivos) in which consent allows the person to partially dispose of the right to physical integrity. In a surrogacy contract it is not possible to identify any of the goals that the legal system recognizes and protects, in some cases implicitly (curative purpose or aesthetic purpose, the public interest in the protection of the sport), and in other cases by a specific discipline (altruistic purposes in organ donation).
In relation to this issue, the legal doctrine agrees that consent must have as an object an available right, otherwise it may be discriminating only in cases where the State has an interest in the protection of the good, conditioned to the fact that the person entitled has not waived it. This means that among the goods belonging to individuals, only the property rights have to be considered unquestionably available, which is different from personal rights, including the right to physical integrity, which must be considered partially available.
In any case, the doctrine fails to recognize in surrogacy neither an aesthetic purpose, nor a purpose of public interest, nor a purpose of actual altruism, as required in the cases explicitly described by the legal system in relation to the field of disposal acts made with the consent of the entitled person. It is possible to configure a purpose which is solely economic in the commercial surrogacy contract. The altruistic surrogacy contract may have some affinity with organ donation inter vivos, since it has an aim that can be described as altruistic, because it is directed to allow a couple who cannot conceive naturally to procreate.
This specific way of thinking meets the constitutional tendency, but also the legislative, which favors conception of the body as an inseparable unity that cannot be economically evaluated, although it is undeniable that the spread of new techniques may cause the end of the principle of immutability of natural processes, and the creation of a mindset that is based on the acceptance of a possible divisibility of human physicality.
Therefore, the surrogacy agreement could also be considered in contrast with Italian criminal law. In fact, the allocation of maternity to a particular woman other than the woman who has given birth to the child could be connected to the offense, pursuant to article 567 of the Penal Code, related to the alteration of state. Under the analysis of article 269 of the Civil Code, in which maternity is recognized in favor of the woman who gave birth to the child, our system considers alteration of state any act intended to make a mother out of a different person from the one who actually gave birth to the baby. Therefore, given that the surrogate mother, if she should fulfill the agreement, guarantees to deliver the child and to relinquish her parental rights, it is possible to deduce a criminal illegality according to the reading of article 567, which states, “Whoever, through the replacement of a newborn, alters the civil status of the latter, shall be punished with imprisonment from three to ten years. Applies imprisonment from five to fifteen years to anyone, who in the formation of a birth certificate, alters the civil status of a newborn through false certifications, false statements or other falsities. ”
California law is very different from Italian law. California law has positive outlook towards surrogacy, mainly because of well-written surrogacy case laws, which favor the completion of a number of surrogacy agreements that appear to increase year by year. Amongst the different types of surrogacy, gestational surrogacy is the most widespread. The reason for this has to be connected to the total absence of a biological link between the surrogate (gestational carrier) and the newborn, which, where it does exist, would create a deep bond between them that could be very difficult to break.
There are many heterosexual and homosexual couples as well as single parents who seek the assistance of clinics, agencies and law firms, to help and to receive advice in order to realize their dream of becoming parents. Agencies in California also offer high clinical standards and a careful selection of surrogates who must undertake strict health examinations and commit themselves to follow a healthy lifestyle during the pregnancy.
Initially, the agency that the intended parents decide to work with helps them get in touch with an egg donor, a sperm bank (if necessary) and a surrogate mother. This procedure is followed by a meeting between the intended parents and the surrogate mother, and the beginning of the necessary legal paperwork. The paperwork must be started before following medical procedures. The process consists of these fundamental steps:
1. The drafting of the contracts between all the parties involved, in which all the provisions related to the parties’ rights and duties are very important, among which are those related to the allocation of parental rights, the responsibility, the payment for the surrogate mother and prohibited conducts.
2.The granting of the judgment directed to establish the intended parents as the legal parents of the child, with the consequent exclusion of the surrogate mother, who will have to deliver the child to the couple after the birth, waiving any rights she may have to be declared the mother of the baby.
3. The issuance of a birth certificate where the intended parents will be indicated as the legal parents of the newborn.
From a legal point of view, the State of California has never had proper regulation about surrogacy, so essentially it has always been Californian case law to establish, over the years, some key principles in the surrogacy field through an extensive interpretation of the concepts of motherhood and fatherhood under the Uniform Parentage Act.
In Johnson v. Calvert, a surrogacy agreement was conducted between a couple of intended parents and a woman who should have carried the embryo created with the couple’s gametes. The surrogate had initially promised to deliver the baby to the intended parents after the birth, relinquishing her parental rights in favor of the couple, but she changed her mind and threatened not to give up the child. The couple sued her to enforce the contract and to be recognized as the legal parents of the baby.
The Supreme Court of California, in addition to confirming the validity of the contract and its respect of the public order, stated that the natural mother, pursuant to section 7000 of the Civil Code, is the woman genetically linked to the baby and that gave birth to him, but when genetic consanguinity and giving birth do not coincide in one woman, she who intended to bring about the birth of a child and intended to raise the child as her own is the natural mother.
Therefore, the court ruled that the intended parents were the legal and the natural parents of the child resulting from the gestational carrier agreement because the intention that they demonstrated by the signing of the contract and the consent given to access all of the necessary medical procedures, should have been enough to give them the legal and the natural parenthood of the child.
Subsequently, The Court of Appeal of California ruled the same principle of law in the case In Re Marriage of Buzzanca. In this case, a couple entered into a surrogacy arrangement with a gestational carrier. The embryo implanted in that woman was created as a result of a donation of gametes. The issue addressed by the Court was the determination of parenting in a case in which both the intended parents appeared to be genetically unrelated to the child. The court decided to connect its decision to an extensive reading of the section 7613 of the Family Code, according to which a man who consented to the artificial insemination of his wife using a donated sperm should be considered the legal and the natural father of the child.
In this case, the court focused on the original intention of the couple, showed by the consent to procreate and to have access to all of the necessary medical procedures realized through a gamete’s donation. Therefore, the judge allocated paternity and maternity rights to the intended parents.
In 2012 a regulation by the Assembly of the State of California was introduced to codify for the first time the best legal practices in relation to surrogacy agreements, which were already followed in practice by lawyers working in the field of assisted reproduction law, despite the absence of a specific law about surrogacy. All the experts of this field accepted with great favor the so-called AB 1217 (Assembly Bill No. 1217) because it has been the first milestone in the field.
The aforementioned regulation, which is an important amendment to section 7690 of the Family Code and has added the section 7692, clarifies in section 7690 the meaning of a few terms commonly used in the surrogacy field. Among these are included:
1. “Intended parent”: An individual, who may or may not be married, whom manifests his intention to be legally bonded as the parent of the child resulting from the surrogacy agreement.
2. “Surrogate”: The woman who bears and carries the child for another with the help of medically assisted reproduction techniques and pursuant to a written agreement.
3.”Surrogacy facilitator”: A person or an organization that engages in the activity of advertising such agreements, directed to encourage the parties to conclude them, or acting as an intermediary between the parties to the agreement. It could also be an individual engaged in the activity of charging a fee or any other consideration for services rendered in connection with the assisted reproduction agreement.
4. “Fund management agreement”: The agreement between the intended parents and the surrogacy facilitator with regard to the fee or other consideration for services already provided or that will be eventually provided in the future.
However, Section 7692 confirms the need for the surrogate and the intended parents to be represented by separate independent licensed attorneys of their choosing before entering into a surrogacy agreement which, in addition to containing some detailed information (date of execution of the contract, the egg donor’s or sperm donor’s identity, if not anonymous, and the intended parents’ identity), shall be executed by the parties, as well as the signatures on the surrogacy contract shall be notarized as required in the jurisdiction where the assisted reproduction agreement for gestational carriers is executed.
In addition, according to the regulation, the intended parents can file an action to establish the parent-child relationship with the child, before his birth which permits them to obtain a judgment where they are recognized as the legal parents of the baby, deleting any parental responsibility with regard to the surrogate mother and her husband. Finally, in order to protect the privacy of the parties, all the documents related to the surrogacy agreement shall not be open to inspection of any person other than the parties to the proceeding, their attorneys and the State Department of Social Services.
To conclude, it should be noted that the two legal systems discussed above represent two sides of the same coin: on the one hand, there is in fact a very close attitude which expressly prohibits surrogacy, while on the other hand, surrogacy has now found a breeding ground where it was initially rooted in practice and later through expressed regulations. Among the main effects that surrogacy causes, there are, in addition to a dissociation between sexuality and procreation, also the parties’ freedom of determination, which allows them the independent contractualization of personal relationships. Therefore, the medical need to seek a surrogate mother to make up for infertility of the intended parents seem to intersect with the couple’s intention to express freely and personally their desire for procreation, which can also be realized through the execution of innovative reproductive agreements.
The result is a new culture of procreative love, which on the one hand is based on the search for a child at all costs, and on the other hand is based on sexuality without any kind of involvement at a procreative level. This result extends procreative options to individuals who were traditionally excluded, either by nature or by choice, thus leading to the gradual modification of the family unit and, above all, the setting in very strict contractual terms of the parental tasks. This is intended as a challenge to the traditional way of understanding the procreative process, which can involve up to three or four people, and allows human beings to make their own choices with the help of science, thus overcoming the hurtle of infertility and the physical impossibility to carry on a pregnancy, although it happens, according to legal doctrine, in an unnatural manner.