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Samira El Boudamoussi

Part 2. Wombs for Rent

Within Me, But Not Mine: Surrogacy in Israel

Etti Samama

Texte intégral

1In the realm of reproductive technology aimed to address fertility problems, the process of surrogacy, in which one woman carries a baby for another, is highly controversial (Shalev 1996a; Shalev 1996b). Surrogacy has awakened public debate concerning the ethical, social, legal, medical, and psychological aspects of the process (Blyth 1994; Van den Akker 1999; Shalev 1996a; Benshushan and Schenker 1997; Schenker 1997; Kirk 1998; Warnke 1994; Ragoné 1994).

2Israeli society sanctifies the value of family and attaches considerable importance to procreation. Fertility as an uppermost priority is distinctively expressed in the policies related to fertility treatments in Israel (Landau 2003). Social peer pressure to procreate may explain the motivations and readiness of designated parents to embark on a process of surrogacy as their last chance to achieve biologic-genetic parenthood (Blyth and Landau 2004). Both the option to defer parenthood, and even alternative solutions such as adoption, are rejected on account of the “decree” of genetic parenthood (Hashiloni-Dolev 2006). It is no surprise, therefore, that this unique enterprise of making rules to regulate agreements for embryo carrying initiated in Israel (Shalev 1998).

3In 1996 the Israeli Embryo Carrying Agreement (Authorization Agreement & Status of the Newborn Child) (heretofore referred to as “the law”) was legislated (Ministry of Justice 1996). The essence of the law is institutionalization of an official mechanism that approves agreements made between parents “ordering” a baby and the surrogate woman who is willing to carry the embryo(s) for them and deliver the baby/babies to them upon birth. This legislation made Israel the first country in the world to allow surrogacy by explicit law (Shalev 1996a; Shalev 1996b).

4The law in Israel is influenced by the necessity to respond to problems raised by Jewish religious law (Shalev 1998; Shalev 1996a).

5The type of surrogacy allowed under Israeli law is only full genetic surrogacy, i.e., the ovum belongs to the designated mother and/or a donor, and it is fertilized by her husband’s sperm via in vitro fertilization (IVF). Legally, surrogacy in Israel combined with sperm donation is prohibited. In the allowed type of surrogacy, there is no genetic relationship between the fetus and the surrogate (Ministry of Justice 1996).

The Embryo Carrying Agreement

6The Israeli surrogacy law was the first in the world to allow a surrogacy process by explicit law, while involving the state at its crucial stages: signing the contract, which requires confirmation by a statutory committee, and delivering the baby to its designated parents, which requires a parenting order by court, subject to a social services review (Samama 2012).

7The Israeli law, in fact, allows a “womb for rent,” supplied by the surrogate. The sensitivity of a topic involving pregnancy and a baby led to a law with provisions aimed to ensure solutions of potential problems, specifically related to the weaker links in the process: the surrogate, the baby, and its delivery to the designated parents.

8Several years after the Israeli law was constituted, other countries followed suit: Greece (Hatzis 2010), Ukraine (Family Code of Ukraine 2003), Australia (Surrogacy Act 2010), the United States (Goldfarb et al. 2000; Jones and Cohen 1999; Gugucheva 2010), India (Gentleman 2008; Pande 2009), Finland (Söderström-Anttila et al. 2002), and others. The laws passed are unique to each individual country. In Finland for example, prior to September 1, 2007, when the Act on Assisted Fertility Treatments entered into force, a gap in legislation allowed fertility clinics to provide non-commercial IVF surrogacy. Since 2007, IVF-assisted surrogacy is forbidden, even for altruistic reasons (Silvola 2007).

9Surrogacy takes place in other European countries, taking advantage of the fact that there is no explicit law forbidding it. The countries allowing surrogacy take different approaches regarding issues such as the status of the designated parents, the status of the surrogate, enforcement of the agreements, attribution of the baby to its parents/surrogate, the type of surrogacy permitted, use of gametes (sperm cells, ova) and embryos, and the right to retract the agreement (Ben-Or and Vylon 2004).

Methodology

10The research detailed in this article describes surrogacy processes in Israel and their outcomes from 1996 to 2009 (Figure 1). It is based on information from all of the cases opened with the Surrogacy Approval Committee (655 cases), details regarding designated parents and surrogates from a sampling of these cases (275 cases), information retrieved via interviews with designated parents and surrogates regarding those surrogacy processes in which they were involved, and a description of their experiences (87 interviewees about 110 surrogacy processes).

Figure 1. Number of cases, births, and babies during the study period.

Figure 1. Number of cases, births, and babies during the study period.

11The research includes both quantitative findings and qualitative data. The quantitative aspect came from cases submitted to the Commission for the Surrogacy Process and examined socio-economic, psychological, and medical aspects of the participants, as well as the results of the surrogacy process. Additionally, the qualitative aspect was based on expressed positions, approaches, quotes, and emotions from all of the parties in the process through in-depth interviews that were conducted with dozens of intended parents and surrogate mothers (Samama 2012).

Findings

12The research findings indicate a gap between the recommendations provided for developing the legislation and the law that was eventually legislated and implemented in Israel. Although respondents expressed satisfaction regarding the fact that there is an explicit law allowing surrogacy, many of them (76% of the parents and 58% of the surrogates) recommended changes and improvements to the law (Samama 2012).

The family status of designated parents and surrogates

The surrogate

13The data on the surrogates comes from a sample of 275 surrogate mothers (out of 655 cases). All Israeli surrogates at the time of this research were unmarried (single, divorced, or widowed), as required by law.

14The average age of the Israeli surrogate was thirty-one, and she was a single mother of between one to six children whose average age was eight. Some 60% of the surrogates had completed a high school education, 17% had ten years of schooling, and only a few held an academic degree. Approximately one-quarter of the surrogates were unemployed when they began the process, while a third were employed in temporary jobs as service providers.

15Most research on surrogacy and surrogates deals with women who were pregnant and gave birth after a process of surrogacy and delivered the child to its designated parents. This is puzzling, as reports of pregnancies obtained via surrogacy never exceed 50% under optimal conditions (due to the young age of the donor and “fresh” embryos). The present study confirms this finding, since fewer than 40% of the surrogates actually gave birth.

16Nevertheless, in all the research reviewed, there was no mention of surrogates who did not get pregnant and therefore did not complete the process. This constitutes a significant group of surrogates who go through a long and demanding process, invest a great deal of time and some money, receive a number of fertility treatments and IVF cycles, but do not succeed in achieving a pregnancy or delivery. In Israel, the surrogate does not receive a significant amount of money and does not gain any benefits from taking part in the process. These “unfulfilled” surrogates are not represented in the current research or in the consequences of the process, and are, in fact, “invisible.” Neither do the media present their stories. This study reveals that if the process does not result in the birth of a baby, it can become very detrimental to the surrogate. She may find herself in a more difficult state than that in which she was at the outset, for example suffering injury to her self-esteem as a woman who can get pregnant and carry a pregnancy to full term. In these cases, the women blamed themselves, and were often manifestly blamed by the parents for not succeeding to achieve a pregnancy.

17Furthermore, many of the surrogates reported a history of abortions, and some explained in the interviews that the surrogacy was a kind of an “amendment” or “atonement” for terminated pregnancies, which in cases of unachieved pregnancies increased the magnitude of vulnerability.

18Findings regarding the motivation of surrogates in Israel, from this study and others, are very clear and unequivocal. Prior to obtaining permission and in interviews, the surrogates stated to members of the committee that their main motivation was financial (Samama 2002; Samama 2012). Only 10% claimed their motivations to be altruistic; only few stated that the motivation was tied to the aspiration for self-fulfillment, adventurism, and the enjoyment of pregnancy. Not one wealthy surrogate was found in the entire research. It seems as if the right to perform altruistic and heroic acts is reserved for poor women.

19Although the main motivation of the surrogate was financial, most surrogates only conducted short and lenient negotiations with the intended parents, thus waiving their economic rights and giving a “discount” price. Surrogates were not likely to take into account the time period before getting pregnant, and some did not receive appropriate compensation for their time and physical suffering associated with obtaining approval to act as surrogates, diagnostic procedures and medical tests, mental diagnosis, and fertility treatments before pregnancy. Some surrogates were compelled to pay out of their own money for travel and babysitters during this period. The findings from the research and the literature suggest that this behavior could be associated with a low income level and limited economic understanding of many of the surrogates. The fact that these women were not receiving support and advice emphasizes the social inequities found in the process, in which the human body of the most vulnerable is used to benefit health needs of the “better-off.”

20These findings are similar to those in other countries where commercial surrogacy is available (Gugucheva 2010; Ragoné 1994; Pande 2009; Blyth and Potter 2003); however in countries that allow altruistic surrogacy among family members, the common motivation is a will to help barren couples (Söderström-Anttila et al. 2002).

21Regarding the surrogates’ chances to fulfill their financial goal via surrogacy, this research found that payment to the surrogate averaged 120,000 NIS (about $30,000). Since the process lasts 21 months (if birth occurs), the surrogate’s fee per hour is 8 NIS ($2.0). In comparison, a surrogate in the United States earns from $0.50 to $3 per hour (Gugucheva 2010).

22The contract does not protect the surrogate against damages resulting from pregnancy and birth so that there is no insurance or financial compensation of any sort. At least one of the surrogates interviewed in the research said that she went through abortion by scraping due to a defect that was discovered in the fetus, which caused an irreversible damage to her womb, and after the medical procedure it was made clear to her that she wouldn’t be able to conceive anymore. According to the surrogate, the agreement she signed did not entitle her to any financial compensation.

23This is another example of the exploitation of human health, that is perceived as inferior, in favor of those with means, thus increasing social inequality that already exists.

The designated parents

24Legally, designated parents in Israel are a man and woman who are joined in marriage or in a marriage agreement (Ministry of Justice 1996, Chapter A, Section 1). The findings of this study show that their average age is “fertility age” (36 to 39 years old), although in a few cases they were over 50 years old. Their socio-economic indicators are higher than those of the surrogates in the following realms: education (over 50% academics), profession, and area of residence. Some have previous children (11%), and very few (1%) had three children before turning to surrogacy.

The relationships between the parents and surrogates

25Usually, the relationship between parents and surrogates in Israel is one between strangers who made contact only for the specific process.

26This study indicates that the process was challenging in terms of relationships between the two sides. Moreover, there were similar stages in the process that most of the participants experienced, including a positive and somewhat superficial relationship at the beginning, which deepened as it proceeded. In “good” cases, the relationship became warm and close, while in others there was increased tension and distance. The period of fertility treatments and pregnancy generated the most tension. Yet it allowed a deepening of the relationship between the sides, until the birth, which was the peak of the relationship. Almost immediately following the birth, the reports of a warm relationship diminished, and in most cases there was detachment, a crisis, or simply a distant friendship.

27The respondents reported that the most challenging aspect of the relationship occurred during fertility treatments or when the fertilization failed. In addition, there were many difficulties within relationships between the parents and surrogates during the pregnancy. Another period described by surrogates as difficult was after the birth, when things returned to normal and the surrogate and parents separated. At this point, the surrogate had to face the consequences of the process physically, emotionally, and financially, as well as having to deal with her children’s response to the experience and their separation from the baby she had carried.

28It seems that there is no regulation or supervision by law regarding these extended periods described as extraordinarily difficult by the interviewees. In fact, after they sign the contract, the various sides embark upon a long and complex process without any escort, guidance, or support. The only time that there is interaction with the authorities is for a very short period after the delivery when the baby is formally transferred to its parents. When the process does not end in a birth, there are no meetings with any official or supervisory entity after signing the contract.

29From the literature reviewed and the current findings, it can be concluded that there are those who view surrogacy as a medical process intended to provide a solution for infertility on the one hand, while reducing possible damages and protecting the other side (the surrogate). Others view surrogacy as a legal contractual matter, and hold that this should be regulated by state authorities, which should examine the way this contract can be fulfilled. The interviews in this research showed that it was primarily a process involving a relationship between two sides that were committed to developing and maintaining a relationship over a long period of time. This perception of surrogacy would be better for channeling the choice, confirmation, supervision and follow-up, so that everyone involved would benefit from the process, while diminishing the level of risk that can ensue. Acknowledging the relationship between the sides would require a different approach, one that is considerate, respectful and perhaps one that avoids the very abrupt cut-off at the final stage, for the good of all parties (Samama 2012; Teman 2010).

Separation from the baby and hand-over to designated parents

30The preconceptions related to separation make it one of the most complex parts of the process, rife with mental distress that may result in psychological problems for the surrogate who becomes attached to the baby and must face the anguish of giving him or her up (Markens 2007). This study suggests that surrogates distance themselves from the baby prior to birth, convincing themselves that it is not really theirs and thus easing the transfer to the “legal owners.” All the professional disciplines deal with the natural attachment between a woman to her fetus and the artificiality and danger of separating them. In existing publications regarding the surrogates, the assumptions are theoretical and not based on empirical research.

31Taking into consideration the findings from literature (Teman 2010) and those of the current study it is possible to conclude that the “prophecy of gloom” regarding the disastrous outcome of the surrogate giving up the baby did not materialize. Even if surrogates felt close to the baby, they were cognizant of the fact that he or she didn’t belong to them and were able to separate, even if it involved an emotional effort (Samama 2012; Teman 2010).

Children of the surrogates

32According to the committee rules, an Israeli surrogate must be mother to at least one child in her custody prior to surrogacy (rules of the Committee for Approval of Embryo Carrying Agreements, www.health.gov.il/DocLib/pon-Info.pdf). The findings of this study indicate that most of the surrogates in Israel (74%) had one or two children, at an average age of eight years. Over half of their children were five to eleven years old, an age at which it is hard to comprehend a complex process such as surrogacy (Figure 2). This means that a large population of young children was exposed to the process that their mothers underwent, without anyone either examining the implications for them or providing any psychological guidance. In interviews, some of the surrogates described complex situations that influenced their children negatively: the pain of parting from the baby, pleas that their mother have a baby for their family “too,” experiencing abandonment at young ages due to long hospitalizations of the surrogate, disappointment in the designated parents who only stayed in touch while their mother was carrying the baby, and a fear that they too would be given away, like their “sibling.”

Figure 2. Surrogacy process stages. IVF treatments, pregnancy and after the birth are the most problematic steps.

Figure 2. Surrogacy process stages. IVF treatments, pregnancy and after the birth are the most problematic steps.

The outcome of surrogacy

33Surrogacy in Israel takes place mostly in the framework of private medicine, with no regulated follow-ups or reports regarding the number of treatments, how they occurred, or their outcome. Private medicine networks are not accustomed to regulated data collection or scientific exposure to the process of their work.

34Only one medical center in Israel summarized the results of a relatively small number of surrogacy processes (19 couples in 60 treatment cycles), and the results regarding the birth rate were a bit low compared to regular IVF cycles—15% (Raziel et al. 2005). The findings of this study are innovative, in that they gather information about a large group of parents and surrogates, while mapping out the medical conditions of the designated mother, the surrogate’s obstetric background, and the various stages of the in vitro fertilization processes.

35In this study, out of all 655 case files submitted to the committee, 207 (32%) births were reported. In more than 60% of signed agreements, the process did not end with childbirth. These findings correspond with the familiar results of IVF in Israel in general (Ministry of Health 2014), and specifically with worldwide surrogacy (Haklai 2013; Goldfarb et al. 2000; Meniru and Craft 1997; Corson et al. 1998).

36On top of that, the emotional toll surrogates paid in the case of failure of the procedure should be considered. Surrogates reported that tension during this period influenced their attitude to their children, and stirred up feelings of failure and self-doubt about their fertility.

37Ignoring most of women who are “surrogacy candidates” and do not “succeed” in completing the process and receiving financial compensation and emotional satisfaction demonstrates the severity of the exploitation of body and mind use of surrogates who are treated as if they were “damaged goods.”

38A quarter of the “successful outcomes” were multiple births, two of which were triplets. In these births, 264 babies were born, one-third of the deliveries were caesarian, though most of the surrogates had previously given birth naturally. One-fourth of the processes used an egg donor (Figure 3).

Figure 3. Results of pregnancies.

Figure 3. Results of pregnancies.

Implementation of the law

39This study’s findings indicate that contrary to the estimation of the legislator, signing a contract—in such way that does not hurt the surrogate and protects her rights—and giving up the baby are not the problematic stages of the process.

40The agreements often included restrictions on the surrogate’s personal freedom. For example, the surrogate could have been forbidden to eat certain foods. Usually the agreements included restrictions on having sexual intercourse throughout the treatment period and pregnancy. The agreements also included an obligation not to smoke, and in some contracts, an obligation to undergo blood tests to ensure that the surrogate did not violate her commitment not to smoke. A surrogate who smoked during pregnancy would risk a lawsuit. Some of the agreements also included restrictions on freedom of movement. Sometimes there was a clause stipulating the surrogate must obtain permission from the intended parents in order to leave the country during the treatment period through to the birth (Lipkin and Samama 2010).

41Some of the intended parents assumed that since they were paying for surrogacy, and because the surrogate’s behavior affected “their” child found in her body, they had the right to place far-reaching demands on the surrogate’s lifestyle during treatment and pregnancy.

42It is hard to avoid a characterization of surrogacy as a modern version of slavery, a situation that we could not accept.

43It seems that Israeli surrogates, even if their income, education, and employment status are lower than those of the designated parents, choose to become surrogates out of their own free will. In Israel, not a single surrogate has refused to hand over the baby or even expressed any desire to keep him/her. There has been no report of any legal suit or deliberation regarding the transfer of the child to its designated parents. When the surrogates were asked to pinpoint the most difficult part of surrogacy, none mentioned giving up the baby. However, different stages of surrogacy were noted as problematic, for example, the fertility treatments, specifically when they failed; the pregnancy; and the post-partum period. These were noted as times of challenges and crises, forcing the sides to independently confront the issues without any involvement of professional services on behalf of the law.

44Those taking advantage of this law appreciate its existence, but they reported that gaining committee consent was a long and cumbersome bureaucratic process, without any follow-up or supervision, even in cases where social services or psychosocial assistance were a condition of the committee’s approval. There was no follow-up or supervision program, and no sanctions have been determined for those who breach the conditions of the agreement.

Conclusions and recommendations

45In Israel, the law regarding surrogacy is perfectly implemented. There is full accord between the legal requirements regarding the surrogate’s family status and the parents’ status (married couple). No cases were found in which the surrogate reneged on the agreement. In all cases, the committee confirmed that the baby was handed over to his or her parents via the social services. Most of the applications filed with the committee received confirmation (82%).

46The scope of surrogacy has grown over the years, and it is greater than originally estimated, due to growing awareness and an expanding target population. As a result, there is a gap between the supply of surrogates in relation to demand, and the cost of the process has increased. This increase has implications for the choice of surrogates, their motivation to start the process, and their self-esteem as they embark on the process.

47Due to the fact that some 60% of the surrogates do not complete the process, and that the law has not defined any mechanism that requires a meeting between them and the professional services (committee, social services, or hospital staff), there is a need to institutionalize a way to locate the surrogates who do not complete the process and provide them and their children with professional counseling. Moreover, a fair way to assess payment should be determined, so that they receive adequate remuneration for the time, energy, suffering, and the disruption of their daily lives, even if they did not give birth.

48The difficult stages in the process of surrogacy are the long wait to locate a surrogate, to receive the committee’s consent, the fertility treatments until pregnancy is achieved, the period of pregnancy, and the point after birth when the surrogates and parents part. These were the stages at which the respondents reported emotional difficulties, stress, and in many cases conflicts and crises. Surprisingly, handing the baby over to the parents was not found to be a problematic or difficult stage for the surrogate.

49There is an incompatibility between the needed response and the response determined by law to accompany and protect the participants in this process. The committee supervises the signed agreement and protects the surrogate, who is considered to be the weaker link. Upon signing the agreement, the committee has no legal requirement to supervise. The social services are only involved in transferring the baby to its designated parents and having the surrogate sign her renunciation before they deliver their report to the court in order to obtain a parenting order. These services do not provide adequate response to the stages in the process that were found to be more challenging and prone to difficulties. The complex relationship between the parents and surrogates over the long period of time taken by the process is not supervised or professionally accompanied.

50There is a need for ongoing supervision over the course of the process, which in Israel is not fully supervised. There should be support for both sides throughout IVF treatments, the pregnancy and after the baby is handed over. It is also necessary to determine criteria for licensing agencies and monitoring their work. There is no justification for the expansion of those eligible to use the law, and there is no need to determine professional procedures to diagnose the applicants, as over the years the committee set up procedures as required. There is a need to increase the psychological intake for the surrogates, so that it also includes an assessment of their potential emotional risks or benefits from the process and their chances of achieving them. Further, the intake should include reference to the surrogate’s children and the need for professional help and supervision. Psychological preparation for all parties should be a requirement prior to the process. There is a need to regulate the rights of an association between the surrogate and baby over the initial period following the birth according to her wishes, and to allow her and her children the benefit of appropriate separation.

51Those working in this field should be required to report their activities and supervise/collect information regarding the processes of surrogacy, their results and the implications for the participants.

52A long-range follow-up is required regarding the various aspects of surrogacy, specifically the children, those who are born from surrogacy and the surrogate’s biological children, the most vulnerable and passive link in this process.

53Theoretically, surrogacy is an institution that has a built-in contradiction by definition: the parents are interested in ordering a child without sharing him or her with another person, whereas the surrogacy process requires the involvement of another woman and necessarily involves engagement of deep physical and emotional processes, with identity aspects. Surrogacy is a type of medical fertility treatment, not a process to which an ordinary commercial agreement can apply, but one involving social order that necessarily includes another person. The basic interests of the people involved in surrogacy contrast each other: the intended parents have no real interest in the surrogate’s human involvement. For them, it is a medical constraint, as they would prefer not to grow “their” baby in another person’s body. In contrast, for the surrogate, the human relationship with and gratitude from the intended parents are the main source of the feeling that the process of surrogacy is a heroic act, not an act of exploitation. Objectification of identity aspects of the human body is in contradiction with basic moral values, and therein, by its very nature, lies the greatest potential of exploitation and degradation. Therefore, surrogacy is a procedure that can potentially cause great damage, especially if it becomes an acceptable and common practice. The distance between giving a uniquely human and heroic gift to an unfruitful couple and staying in fertility production farms is not that great, and the ability to keep that distance will diminish as surrogacy becomes a routine and profitable procedure.

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Table des illustrations

Titre Figure 1. Number of cases, births, and babies during the study period.
URL http://books.openedition.org/editionsmsh/docannexe/image/10755/img-1.jpg
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Titre Figure 2. Surrogacy process stages. IVF treatments, pregnancy and after the birth are the most problematic steps.
URL http://books.openedition.org/editionsmsh/docannexe/image/10755/img-2.jpg
Fichier image/jpeg, 72k
Titre Figure 3. Results of pregnancies.
URL http://books.openedition.org/editionsmsh/docannexe/image/10755/img-3.jpg
Fichier image/jpeg, 60k

Auteur

The director of the Division of Medical Technology Policy at the Israeli Ministry of Health and teaches medical policy at Haifa and Tel Aviv Universities. She holds a BA in nursing, an MA in social work—both from The Hebrew University of Jerusalem—and a PhD in health systems management from Ben-Gurion University of the Negev. Her master’s thesis as well as her doctoral dissertation researched the topic of surrogacy in Israel over 15 years. She coauthored a report on the state of surrogacy in Israel, published by the Woman to Woman (Isha L’Isha) feminist organization in 2011.

© Éditions de la Maison des sciences de l’homme, 2015

Conditions d’utilisation : http://www.openedition.org/6540