Controversial Issues of Maternity Substitution

• Author: Andy Pusca
• Position: Danubius University of Galati, Faculty of Law
• Pages: 382-388

Controversial issues of maternity substitution

Andy Pu6c5

Danubius University of Galati, Faculty of Law, andypusca@univ-danubius.ro

Abstract: Substitute maternity consists in a woman carrying a pregnancy (the implant of an embryo), at the

request of a ste rile couple, most of the tim es in exchange of a sum of money, with her commitment to

unconditionally give away the n ewborn after birth to the couple she concluded the agreement w ith. Many

controversies emer ged in what concerns the contract between the ste rile couple and the carrying mother,

especially when this contract is by on erous title, which happens in most of the cases . In that a civil co ntract? Is it

a sales contrac t for the child? Is it a contract to provide services? Is it body marketing? Between total pr ohibition

and excessive liberalism, the middle way, which is th e regulation according to ethical religious, cultural and

social norms of each comm unity, represents a realistic solution.

Keywords: surrogate mot her, maternity substitution, contract

1 Introduction

In the internatio nal legislation a nd the internal la w, the concept of “carrying mo ther” (“substitu te mother”,

“surrogate mother” , “mere partenese”, “ute rus rental”) describes the woman who accepts to carry a

pregnancy (m ade possibl e by the implantatio n of an embryo, ob tained in the laborato ry from the couple’s

gametes, or by the insemination o f that wo man with the husband’ s sperm), instead of another wo man and

gives birth to he r child instead.

Having another woman bear a child for a couple to raise, usu ally wit h the male half of the couple as the

genetic father, is referred to in antiquity.1 Attorne y Noel Kean e is generally recogni zed as the creator of

the legal idea of surrogate motherhood. However, it was not until he developed an association with

physician Warre n J. Ringold in the city of Dear born, Michigan that the idea bec ame feasible.

There is a default legal assumption in most countries that the woman giving birth to a child is that child's

legal mother. In some jurisdictions the possibil ity of surro gacy has been allowed and the intended p arents

may be recogniz ed as the legal pa rents from birth. Many states now issue pre-birth orde rs through the

courts placing the name(s) of th e intended parent(s) on the birth ce rtificate from the start. In others the

possibility of surrogac y is e ither not recognized (all cont racts speci fying diffe rent legal parents are void),

or is prohibited.

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1 For example, chapter 16 of the Bible relates t he story of Sarah's servan t Hagar bearing a child to Abraham for Sarah and

Abraham to raise.

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