SURROGACY

RIGHTS OF INTENDED PARENTS AND SURROGATES

DEFINITION
Surrogacy is when a woman (a third party) carries and gives birth to a baby for a couple,
which represents the intended parents, because they “cannot conceive or carry a child to term,
due to a medical problem”.
TYPES OF SURROGACY
Straight surrogacy is when a surrogate uses her own eggs for the pregnancy. The intended
father provides a sperm sample for conception through self-insemination (at home) or
artificial insemination (in a fertility clinic).
Host surrogacy is when the surrogate does not provide the egg to achieve the pregnancy.
Therefore, embryos are created in vitro and transferred into the uterus of the surrogate, using
eggs of the intended mother, fertilised with sperm of the intended father or donor.
Surrogacy agreement
It is essential to have a surrogacy agreement to ensure that parties agree on all aspects of the
arrangement. While this is not a legally binding document, the agreement can be fundamental
for any decisions that need to be made throughout the pregnancy, as well as reasonable
expenses the intended parents will pay to the surrogate.
When surrogacy is completed legally and the correct process is followed, the surrogate has no
parental rights or responsibilities to the child she carries.
Surrogates and intended parents enter into their surrogacy agreements with one very clear
goal in mind: to deliver a baby to the intended parents’ family. The surrogate is well aware
that she is carrying the baby for another family.
Parental or adoption order
The intended parents can apply for a parental order 6 weeks after the child is born and before
the child is 6 months old.
To be able to apply for a parental order, the intended parents must be:
1. firstly, genetically related to the child
2. secondly, in a specific relationship (married, civil partners, living as partners)
No one can apply for a parental order if he/she is single.
If the intended parents are not related to the child or if the person who wants to apply for a
parental order is single, adoption is the only way of becoming the child’s legal parent.
Surrogate mothers
Surrogates are the legal mothers of any child they carry, even if they're not genetically related
to him, until they sign a parental or adoption order following the birth of the child, which
transfers their rights to the intended parents.
Rights:
1. to be informed about all the medical procedures she has to undertake and medicine she has
to take and about their possible side effects
2. to demand health insurance
3. to be medically examined at no cost
4. to seek free medical support in case of side effects development
5. to seek psychological help during pregnancy
6. to receive the promised monetary compensation after delivery
7. to 52 weeks maternity leave
Father’s rights
The child’s legal father will be the surrogate’s husband or partner unless:
1. legal rights are given to someone else through a parental order or adoption
2. the surrogate’s husband or civil partner didn’t give their permission to their wife or partner
If the surrogate has no partner or she is unmarried and not in a civil partnership, the child will
have no legal father.
Surrogacy Pros and Cons for Intended Parents
Pros:
1. Surrogacy completes families.
2. Surrogacy allows for genetic connections, enabling one or both parents to maintain a
biological relationship with their child.
3. Surrogacy creates relationships, many intended parents becoming close to their surrogate
and her family during the process.
4. Surrogacy ensures that the intended parents are involved in their surrogate’s pregnancy
(the embryo transfer, birth).
5. Surrogacy is likely to be successful. It was proved that surrogates carry healthy
pregnancies, which often makes surrogacy more likely to be successful than fertility
treatments for the intended parents.
Cons:
1. Surrogacy can be complicated. Gestational surrogacy involves complex medical
procedures and overwhelming legal processes.
2. Surrogacy costs can be significant.
3. Surrogacy requires trusting the surrogate to carry the baby.

Surrogacy Pros and Cons for Gestational Surrogates

Pros:
1. Surrogacy is a rewarding gift. Most women choose surrogacy to give back to another
family, being proud and satisfied helping it in the most selfless way possible.
2. Surrogacy allows surrogates to experience pregnancy again.
3. Surrogates are legally protected because they enter into a legally binding contract with the
intended parents, giving them the opportunity to clearly outline their expectations and
responsibilities during the surrogacy process. This ensures that the surrogate will be fairly
compensated and that she will not be responsible for the baby after birth.
Cons:
1. Surrogacy is physically demanding. In addition to the typical physical challenges of
pregnancy, the surrogate will need to undergo additional screenings, appointments and
fertility treatments.
2. Surrogacy can be emotionally challenging. Pregnancy is often stressful, but it can be even
more challenging when a person is carrying someone else’s baby.
3. Surrogacy requires a significant time commitment. Between screening appointments,
meetings with the intended parents and others, surrogacy can be time-consuming and it often
takes a year or longer to complete the entire process.
Opinion
In my opinion, concerning the topic of surrogacy, it is clear from the beginning who the
child’s parents truly are: the people who have hoped and waited for years to complete their
family. At the same time, it is true that the surrogate mother becomes very close to the baby
during pregnancy and, because of that, there will always be a natural link between them,
which is really normal. Therefore, it is important for surrogates and intended parents to have
a good relationship, based on trust and permanent support, and also a solid understanding of
the legal processes involved in surrogacy, as well as each party’s responsibilities related to
the child.

Cases of the European Court of Human Rights

Paradiso and Campanelli v. Italy (24 January 2017)
The applicants are two Italian nationals who entered into a surrogacy agreement with a
Russian woman through a Russian surrogacy agency. The child, who was conceived using
the procedure of in vitro fertilisation, was born in February 2011. The surrogate mother
signed a declaration that the baby was the genetic child of the applicants and the child was
issued a Russian birth certificate naming the applicants as parents, but without any indication
that the child had been born through a surrogacy.
When the applicants returned with the child to Italy, they unsuccessfully tried to register the
birth. The Italian Consulate in Moscow informed the authorities that the birth certificate
contained false information. Therefore, in May 2011, the applicants were charged with
“misrepresentation of civil status” because, under the Italian law, “the person who gives birth
to a baby is legally its mother, and the use of surrogate mothers is illegal.” The Campobasso
juvenile court held that the baby had been abandoned.
Then, after it was revealed that neither parent was genetically related to the child, the same
juvenile court ordered that the child was removed from the applicants and placed under
guardianship. The child was placed in a children’s home and later foster care, with no contact
with the applicants and no formal identity. In 2015, the lower courts determined that Italian
authorities violated Article 8 by refusing to register the applicants as the baby’s parents on
the birth certificate.
The Government appealed the case to the European Court of Human Rights. The couple
alleged that the baby’s removal from their custody violated their right to respect for private
and family life (Article 8 of the European Convention on Human Rights) and relied on the
fact that they developed “close emotional bonds” with the child because he had been with
them for over half a year. The Court decided that there was no violation of Article 8 and
overturned the decision from 2015 because there was no biological relationship with the
parents. The Court also determined that the child would not “suffer grave or irreparable harm
as a result of the separation” from the applicants.