Assisted reproduction technologies and reproductive justice in the production of parenthood and origin: Uses and meanings of the co-produced gestation and the surrogacy in Brazil

This article examines the construction of parenthood, drawing on Brazilian cisgender, heterosexual, and homosexual couples' experiences in using assisted reproduction technologies (ART), particularly the surrogacy. For that purpose, we interviewed: 1) a lesbian woman who had her daughter through her partner's pregnancy, using ART with anonymous donor semen; 2) a gay man who, together with his partner, used a surrogacy service under contract via a specialised offshore agency; 3) a woman who was a surrogate, in Brazil, for her sister-in-law and brother who lived abroad and, from abroad, sent an embryo fertilised for surrogacy; 4) a woman who resorted to her sister-in-law in order to be a mother by surrogacy, with ovules from the woman herself fertilised with semen from her husband; and 5) the sister-in-law mentioned in 4), who acted as surrogate for her brother and his wife. These interviews made it possible to think about the discursive construction of the legitimacy of such parenthoods, as it is produced by access to, and manipulation and circulation of, reproductive technologies and persons. This biomedical management of bodies sets up a material and discursive circuit that, in turn, produces a complex web of personal, normative, legal, professional and market relationships, particularly with a view to construction of a parenthood anchored in a notion of biologically-constituted origin. In this respect, biological, affective and social bonds merge to produce a precise placement of who is the father and/or who is the mother, as well as who are the important others and how they are linked to the child in a broader web of parenthood.     

REVISITING CHILD‐BASED OBJECTIONS TO COMMERCIAL SURROGACY

Many critics of commercial surrogate motherhood argue that it violates the rights of children. In this paper, I respond to several versions of this objection. The most common version claims that surrogacy involves child‐selling. I argue that while proponents of surrogacy have generally failed to provide an adequate response to this objection, it can be overcome. After showing that the two most prominent arguments for the child‐selling objection fail, I explain how the commissioning couple can acquire parental rights by paying the surrogate only for her reproductive labor. My explanation appeals to the idea that parental rights are acquired by those who have claims over the reproductive labor that produces the child, not necessarily by those who actually perform the labor. This account clarifies how commercial surrogacy differs from commercial adoption. In the final section of the paper, I consider and reject three further child‐based objections to commercial surrogacy: that it establishes a market in children's attributes, that it requires courts to stray from the best interests standard in determining custodial rights, and that it requires the surrogate to neglect her parental responsibilities. Since each of these objections fails, children's rights probably do not pose an obstacle to the acceptability of commercial surrogacy arrangements.     

Views of Swedish Commissioning Parents Relating to the Exploitation Discourse in Using Transnational Surrogacy

Transnational surrogacy, when people travel abroad for reproduction with the help of a surrogate mother, is a heavily debated phenomenon. One of the most salient discourses on surrogacy is the one affirming that Westerners, in their quest for having a child, exploit poor women in countries such as India. As surrogacy within the Swedish health care system is not permitted, Swedish commissioning parents have used transnational surrogacy, and the majority has turned to India. This interview study aimed to explore how commissioning parents negotiate the present discourses on surrogacy. Findings from the study suggest that the commissioning parents’ views on using surrogacy are influenced by competing discourses on surrogacy represented by media and surrogacy agencies. The use of this reproductive method resulted, then, in some ambiguity. Although commissioning parents defy the exploitation discourse by referring to what they have learnt about the surrogate mother’s life situation and by pointing at the significant benefits for her, they still had a request for regulation of surrogacy in Sweden, to better protect all parties involved. This study, then, gives a complex view on surrogacy, where the commissioning parents simultaneously argue against the exploitation discourse but at the same time are uncertain if the surrogate mothers are well protected in the surrogacy arrangements. Their responses to the situation endorse the need for regulation both in Sweden and India.     

Altruistic surrogacy and informed consent

A crucial premise in many recent arguments against the moral permissibility of surrogate motherhood arrangements is the claim that a woman cannot autonomously consent to gestating and relinquishing a child to another couple, because she cannot be fully informed about what her future emotional responses will be to the foetus developing within her, and to the giving up of the newborn infant to its social parents. When conjoined with some moral principle about the justifiable limits on the ways others can be expected to exercise their autonomy on our behalf, this claim is often taken to establish that various forms of surrogate motherhood arrangements are morally wrong. In this paper I want to show that there is a serious non sequitur in this kind of argument. That is, I want to show that even if women cannot in fact have this kind of information about what their future emotional responses to pregnancy and relinquishment will be, nothing follows about the wrongness or otherwise of surrogacy. For, when we consider what counts as informed consent in the context of other important ventures with uncertain consequences, it becomes clear that informed consent does not require having this kind of information about one's future emotional states. In putting these arguments, I also hope to clarify some of the connections which might be thought to hold between informed consent and autonomous decision-making generally.     

SURROGACY: DONOR CONCEPTION REGULATION IN JAPAN

As of 2008, surrogacy is legal and openly practised in various places; Japan, however, has no regulations or laws regarding surrogacy. This paper reports the situation of surrogacy in Japan and in five other regions (the USA, the UK, Taiwan, Korea and France) to clarify the pros and cons of prohibiting surrogacy, along with the problems and issues relating to surrogacy compensation. Not only in a country such as France that completely prohibits surrogacy within the country, but also in a country such as the UK that allows non‐commercial surrogacy, infertile couples travel overseas for the purpose of surrogacy. In addition, some couples might seek underground surrogacy if the government prohibits surrogacy. If an intended parent couple and a surrogate make an agreement among themselves and then a problem occurs, they cannot ask for support from professionals or bring a case to court, as can be observed in South Korea and Taiwan. We also conclude that there is little difference between commercial surrogacy and non‐commercial surrogacy in the absence of a clear definition of ‘reasonable expenses.’ In the UK, the law does not allow surrogates to receive compensation. However, in reality, there may be little difference between the amounts paid to surrogates for profit in the US and those paid to surrogates for reasonable expenses in the UK. We conclude that the issue of surrogacy demands further discussion in Japan.     

Reconstructing feminist perspectives of women’s bodies using a globalized view: The changing surrogacy market in Japan

This paper aims to evoke an alternative viewpoint on surrogacy, moving beyond popular Western feminist beliefs on the practice, by introducing the history and current context of East Asian surrogacy. To elaborate a different cultural perspective on surrogacy, this paper first introduces the East Asian history of contract pregnancy systems, prior to the emergence of the American invention of ‘modern’ surrogacy practice. Then, it examines Japanese mass media portrayals of cross-border surrogacy in which white women have become ‘convenient’ entities. The results of the analysis show how Japanese culture has adopted a rhetoric about the use of white women as convenient surrogate mothers in the global commercial surrogacy market. An essential aspect of surrogacy is the premise that a woman’s reproductive function should be accessible to others. Past discussions among feminists have neglected this important point. Moreover, they share the assumption that white surrogacy clients are exploiters, who take advantage of women of colour as surrogate mothers. The current situation in Asia flips this perspective—with white women regarded as easier targets for exploitation by wealthy people of colour. For Asian clients, Westerners can be easily regarded as ‘others’ whom they can use for their reproductive needs. In today's globalized era, the surrogacy industry is no longer for affluent Westerners only. Considering this change, it is crucial to discuss surrogacy issues by reconstructing feminist perspectives with a globalized view, to help protect women’s bodies, regardless of nationality, ethnicity, skin colour, or religion.     

FAIR TRADE INTERNATIONAL SURROGACY

Since the development of assisted reproductive technologies, infertile individuals have crossed borders to obtain treatments unavailable or unaffordable in their own country. Recent media coverage has focused on the outsourcing of surrogacy to developing countries, where the cost for surrogacy is significantly less than the equivalent cost in a more developed country. This paper discusses the ethical arguments against international surrogacy. The major opposition viewpoints can be broadly divided into arguments about welfare, commodification and exploitation.
It is argued that the only valid objection to international surrogacy is that surrogate mothers may be exploited by being given too little compensation. However, the possibility of exploitation is a weak argument for prohibition, as employment alternatives for potential surrogate mothers may be more exploitative or more harmful than surrogacy. It is concluded that international surrogacy must be regulated, and the proposed regulatory mechanism is termed Fair Trade Surrogacy. The guidelines of Fair Trade Surrogacy focus on minimizing potential harms to all parties and ensuring fair compensation for surrogate mothers.     

On assessing surrogacy in a single trial setting using a semicompeting risks paradigm

Summary .  There has been a recent emphasis on the identification of biomarkers and other biologic measures that may be potentially used as surrogate endpoints in clinical trials. We focus on the setting of data from a single clinical trial. In this article, we consider a framework in which the surrogate must occur before the true endpoint. This suggests viewing the surrogate and true endpoints as semicompeting risks data; this approach is new to the literature on surrogate endpoints and leads to an asymmetrical treatment of the surrogate and true endpoints. However, such a data structure also conceptually complicates many of the previously considered measures of surrogacy in the literature. We propose novel estimation and inferential procedures for the relative effect and adjusted association quantities proposed by Buyse and Molenberghs (1998, Biometrics 54, 1014–1029). The proposed methodology is illustrated with application to simulated data, as well as to data from a leukemia study.     

Proportion of treatment effect mediated by surrogate endpoints

One of the central aims in randomized clinical trials is to find well‐validated surrogate endpoints to reduce the sample size and/or duration of trials. Clinical researchers and practitioners have proposed various surrogacy measures for assessing candidate surrogate endpoints. However, most existing surrogacy measures have the following shortcomings: (i) they often fall outside the range [0,1], (ii) they are imprecisely estimated, and (iii) they ignore the interaction associations between a treatment and candidate surrogate endpoints in the evaluation of the surrogacy level. To overcome these difficulties, we propose a new surrogacy measure, the proportion of treatment effect mediated by candidate surrogate endpoints (PMS), based on the decomposition of the treatment effect into direct, indirect, and interaction associations mediated by candidate surrogate endpoints. In addition, we validate the advantages of PMS through Monte Carlo simulations and the application to empirical data from ORIENT (the Olmesartan Reducing Incidence of Endstage Renal Disease in Diabetic Nephropathy Trial).     

The exploitation argument against commercial surrogacy

This paper discusses the exploitation argument against commercial surrogacy: the claim that commercial surrogacy is morally objectionable because it is exploitative. The following questions are addressed. First, what exactly does the exploitation argument amount to? Second, is commercial surrogacy in fact exploitative? Third, if it were exploitative, would this provide a sufficient reason to prohibit (or otherwise legislatively discourage) it? The focus throughout is on the exploitation of paid surrogates, although it is noted that other parties (e.g. ‘commissioning parents’) may also be the victims of exploitation. It is argued that there are good reasons for believing that commercial surrogacy is often exploitative. However, even if we accept this, the exploitation argument for prohibiting (or otherwise legislatively discouraging) commercial surrogacy remains quite weak. One reason for this is that prohibition may well ‘backfire’ and lead to potential surrogates having to do other things that are more exploitative and/or more harmful than paid surrogacy. It is concluded therefore that those who oppose exploitation should (rather than attempting to stop particular practices like commercial surrogacy) concentrate on: (a) improving the conditions under which paid surrogates ‘work’; and (b) changing the background conditions (in particular, the unequal distribution of power and wealth) which generate exploitative relationships.     

Two roles for ecological surrogacy: Indicator surrogates and management surrogates

Ecological surrogacy – here defined as using a process or element (e.g., species, ecosystem, or abiotic factor) to represent another aspect of an ecological system – is a widely used concept, but many applications of the surrogate concept have been controversial. We argue that some of this controversy reflects differences among users with different goals, a distinction that can be crystalized by recognizing two basic types of surrogate. First, many ecologists and natural resource managers measure “indicator surrogates” to provide information about ecological systems. Second, and often overlooked, are “management surrogates” (e.g., umbrella species) that are primarily used to facilitate achieving management goals, especially broad goals such as “maintain biodiversity” or “increase ecosystem resilience.” We propose that distinguishing these two overarching roles for surrogacy may facilitate better communication about project goals. This is critical when evaluating the usefulness of different surrogates, especially where a potential surrogate might be useful in one role but not another. Our classification for ecological surrogacy applies to species, ecosystems, ecological processes, abiotic factors, and genetics, and thus can provide coherence across a broad range of uses.     

A response to Dodds and Jones

In response to "Surrogacy and Autonomy," by Susan Dodds and Karen Jones in this issue of Bioethics, the author concedes that only a surrogacy practice stringently regulated by good counseling, escape clauses for pregnant women, and the prohibition of profit-making agencies will save women from exploitation, but she objects to singling out women for paternalistic "protection against themselves," and to defending women's autonomy to the extent of their right to behave in ways known to harm a fetus. Dodds and Jones' concerns about attitudes toward women, genetic bias, the concept of children as property, and the harm principle generated by surrogacy contracts are answered with arguments for why surrogacy should not be illegal.     

Meta-analysis for surrogacy: accelerated failure time models and semicompeting risks modeling

There has been great recent interest in the medical and statistical literature in the assessment and validation of surrogate endpoints as proxies for clinical endpoints in medical studies. More recently, authors have focused on using metaanalytical methods for quantification of surrogacy. In this article, we extend existing procedures for analysis based on the accelerated failure time model to this setting. An advantage of this approach relative to proportional hazards model is that it allows for analysis in the semicompeting risks setting, where we model the region where the surrogate endpoint occurs before the true endpoint. Several estimation methods and attendant inferential procedures are presented. In addition, between- and within-trial methods for evaluating surrogacy are developed; a novel principal components procedure is developed for quantifying trial-level surrogacy. The methods are illustrated by application to data from several studies in colorectal cancer.     

Surrogate Motherhood and Abortion for Fetal Abnormality

A diagnosis of fetal abnormality presents parents with a difficult – even tragic – moral dilemma. Where this diagnosis is made in the context of surrogate motherhood there is an added difficulty, namely that it is not obvious who should be involved in making decisions about abortion, for the person who would normally have the right to decide – the pregnant woman – does not intend to raise the child. This raises the question: To what extent, if at all, should the intended parents be involved in decision‐making? In commercial surrogacy it is thought that as part of the contractual agreement the intended parents acquire the right to make this decision. By contrast, in altruistic surrogacy the pregnant woman retains the right to make these decisions, but the intended parents are free to decide not to adopt the child. We argue that both these strategies are morally unsound, and that the problems encountered serve to highlight more fundamental defects within the commercial and altruistic models, as well as in the legal and institutional frameworks that support them. We argue in favour of the professional model, which acknowledges the rights and responsibilities of both parties and provides a legal and institutional framework that supports good decision‐making. In particular, the professional model acknowledges the surrogate's right to decide whether to undergo an abortion, and the intended parents' obligation to accept legal custody of the child. While not solving all the problems that arise in surrogacy, the model provides a framework that supports good decision‐making.     

Choosing between life and death: patient and family perceptions of the decision not to resuscitate the terminally ill cancer patient

In keeping with the pre-eminent status accorded autonomy within Australia, Europe, and the United States, medical practice requires that patients authorize do-not-resuscitate (DNR) orders, intended to countermand the default practice in hospitals of instituting cardiopulmonary-resuscitation (CPR) on all patients experiencing cardio-pulmonary arrest. As patients typically do not make these decisions proactively, however, family members are often asked to act as surrogate decision-makers and decide on the patient's behalf. Although the appropriateness of patients or their families having to decide about the provision of CPR has been challenged, there has been little examination of how patients and their families talk about and negotiate such decisions, particularly in the context of the patient's imminent death. In this article, part of a larger study analysing interviews with 28 patients (13 female) with cancer within weeks of their death, and 20 others (predominantly family) attending, we argue that a common assumption underpinning participants' talk about the DNR decision (i.e. forgoing CPR) is that it requires a choice between life and death. Using illustrative examples, we demonstrate that in making decisions about CPR, patients and their families are implicitly required to make moral judgements about the value of the patient's life, including their relationships with significant others. We identify some implications of these empirical observations for the development of ethically appropriate policies and practices regarding patient autonomy and surrogacy at the end of life.     

Robust approach to combining multiple markers to improve surrogacy

Identifying effective and valid surrogate markers to make inference about a treatment effect on long-term outcomes is an important step in improving the efficiency of clinical trials. Replacing a long-term outcome with short-term and/or cheaper surrogate markers can potentially shorten study duration and reduce trial costs. There is sizable statistical literature on methods to quantify the effectiveness of a single surrogate marker. Both parametric and nonparametric approaches have been well developed for different outcome types. However, when there are multiple markers available, methods for combining markers to construct a composite marker with improved surrogacy remain limited. In this paper, building on top of the optimal transformation framework of Wang et al. (2020), we propose a novel calibrated model fusion approach to optimally combine multiple markers to improve surrogacy. Specifically, we obtain two initial estimates of optimal composite scores of the markers based on two sets of models with one set approximating the underlying data distribution and the other directly approximating the optimal transformation function. We then estimate an optimal calibrated combination of the two estimated scores which ensures both validity of the final combined score and optimality with respect to the proportion of treatment effect explained by the final combined score. This approach is unique in that it identifies an optimal combination of the multiple surrogates without strictly relying on parametric assumptions while borrowing modeling strategies to avoid fully nonparametric estimation which is subject to the curse of dimensionality. Our identified optimal transformation can also be used to directly quantify the surrogacy of this identified combined score. Theoretical properties of the proposed estimators are derived, and the finite sample performance of the proposed method is evaluated through simulation studies. We further illustrate the proposed method using data from the Diabetes Prevention Program study.     

Semiparametric inference for surrogate endpoints with bivariate censored data

Summary .   Considerable attention has been recently paid to the use of surrogate endpoints in clinical research. We deal with the situation where the two endpoints are both right censored. While proportional hazards analyses are typically used for this setting, their use leads to several complications. In this article, we propose the use of the accelerated failure time model for analysis of surrogate endpoints. Based on the model, we then describe estimation and inference procedures for several measures of surrogacy. A complication is that potentially both the independent and dependent variable are subject to censoring. We adapt the Theil–Sen estimator to this problem, develop the associated asymptotic results, and propose a novel resampling-based technique for calculating the variances of the proposed estimators. The finite-sample properties of the estimation methodology are assessed using simulation studies, and the proposed procedures are applied to data from an acute myelogenous leukemia clinical trial.     

THE ETHICS OF UTERUS TRANSPLANTATION

Human uterus transplantation (UTx) is currently under investigation as a treatment for uterine infertility. Without a uterus transplant, the options available to women with uterine infertility are adoption or surrogacy; only the latter has the potential for a genetically related child. UTx will offer recipients the chance of having their own pregnancy. This procedure occurs at the intersection of two ethically contentious areas: assisted reproductive technologies (ART) and organ transplantation. In relation to organ transplantation, UTx lies with composite tissue transplants such as face and limb grafts, and shares some of the ethical concerns raised by these non‐life saving procedures. In relation to ART, UTx represents one more avenue by which a woman may seek to meet her reproductive goals, and as with other ART procedures, raises questions about the limits of reproductive autonomy. This paper explores the ethical issues raised by UTx with a focus on the potential gap between women's desires and aspirations about pregnancy and the likely functional outcomes of successful UTx.     

A response to Purdy

The authors respond to Laura Purdy's article, "Surrogate mothering: exploitation or empowerment?," in the same issue of Bioethics. They contend that focusing on what is necessarily wrong with surrogate motherhood contracts allows Purdy to overlook the contingent features of classist, patriarchal society that make such contracts morally wrong and to marginalize feminist concerns. Theoretical fallacies within Purdy's consequentialist framework create too individualistic and narrow a discussion of the possible harms of surrogate contracts, ignoring influences upon women as a group and the psychological risks to the surrogate mother. If surrogacy contracts have the potential to empower women, then we must see some specific changes that would make this a reality, given that Purdy does not mean surrogacy as it is currently practised.     

The medicalization of "nature" in the "artificial body": surrogate motherhood in Israel

In this article, I draw on anthropological and feminist scholarship on the body and the nature/culture divide as a framework for understanding the place of surrogate mothers in a conceptual ideology that connects motherhood with nature. I explore links between the medicalization of childbirth in Israel and the personal agency of surrogate mothers as relayed through interviews. Taking the patriarchal context of the Israeli surrogacy law of 1996 into consideration, I underscore surrogates' imaginative use of medical metaphors as tools for the subversion of surrogacy's threatening social connotations. By redefining the surrogate body as "artificial" and locating "nature" in the commissioning mother's body, surrogates adopt medical rhetoric to transform surrogacy from a transgressive act into an alternative route toward achieving normative Israeli national reproductive goals.