Ethical considerations on surrogacy^†

Abstract

Surrogacy is the assisted reproductive technology (ART) practice in which a person becomes pregnant, carries, and delivers a child on behalf of another couple/person, who are the intended parent(s). Surrogacy is an especially complex practice as the interests of the intended parents, the gestational carrier, and the future child may differ. This paper considers ethical questions related to different forms of surrogacy. It concludes that non-commercial surrogacy is an acceptable method of assisted reproduction for specific indications. When using surrogacy to form a family, it is essential that there are measures to protect all parties, to guarantee well-considered decision-making, and to minimize risks. The current paper formulates recommendations to promote these measures. This paper is an update to the ESHRE Task Force Ethics and Law Paper 10: Surrogacy and replaces this paper.

Introduction

The aim of this paper is to consider the ethical issues raised by surrogacy, i.e. when a pregnancy is carried by a gestational carrier or surrogate. For the purpose of this paper, a ‘gestational carrier’ is a person who becomes pregnant, carries, and delivers a child on behalf of another couple/person, who are the intended parent(s). The term surrogacy covers several situations. In the first situation, the gestational carrier has no genetic link to the child. In that case, (i) the gametes of both intended parents are used; (ii) both gametes come from donors (donation of either supernumerary embryos or of oocyte and sperm); or (iii) one of the intended parents provides one type of gamete and a gamete donor the other. In the second situation, the gestational carrier has a genetic link by providing the oocyte. In both cases, the gestational carrier does not intend to raise the child, and the intended parent(s) commit to assuming parental responsibility. The dilemmas relating to gamete/embryo donation, such as donors’ anonymity versus non-anonymity or altruism versus commercialization, are relevant but will not be covered specifically here [instead, see ESHRE Task Force on Ethics and Law, 2002 (and the future update of this paper); Kirkman-Brown et al., 2022].

The number of cases of surrogacy has been rising, but they are difficult to quantify as there are few registers worldwide that collect data on surrogacy (Perkins et al., 2016; Brandão and Garrido, 2022).

Surrogacy raises practical, ethical, and legal problems in the context of assisted reproductive technology (ART) involving third parties, e.g. the intended transfer by the gestational carrier of the child she has carried, the relationship of the intended parent(s) towards that child and towards the gestational carrier, the establishing of legal parenthood, and the potential commercialization of the process.

This paper is an update to the ESHRE Task Force Ethics and Law Paper 10: Surrogacy (Shenfield et al., 2005) and replaces this paper.

Background and facts

Indications for surrogacy

A distinction can be made between medical indications and non-medical indications for surrogacy. Medical indications may be (i) absent or scarred uterus/endometrium (e.g. congenital causes like Mayer–Rokitansky–Küster–Hauser syndrome, inoperable scarred uterus after multiple myomectomies, or hysterectomy), which are absolute; and (ii) medical contraindications to pregnancy, which are relative and can vary according to the magnitude of the risk and the severity of the condition for either the woman carrying the pregnancy or the future child (e.g. heart or renal failure, severe Rhesus iso-immunization, women unable to carry a pregnancy after cancer treatment). Surrogacy may also be considered for other indications such as recurrent pregnancy loss and repeated IVF failures. Currently, there is, however, no consensus on the latter indications, and this is an area requiring further research.

Finally, there are also non-medical indications for surrogacy, for instance when male same-sex couples or single males want to pursue parenthood.

Efficacy and safety

Pregnancy rates after surrogacy are satisfactory and comparable to those reported for similar ART treatments without surrogacy (Centers for Disease Control and Prevention, 2021).

As with efficacy, safety is affected by the same factors as for other ART treatments, such as age of the oocyte provider and ART protocols/procedures.

Fertilized oocytes from the intended parent(s) or a donor are transferred into the uterus of the gestational carrier. Transfer can be done following endometrial preparation with estradiol and progesterone (artificial cycle—AC), as in the frozen-thawed embryo transfer (FET) cycles, or following natural build-up of the endometrium (natural cycle—NC). A systematic review and meta-analysis confirmed that NC-FET compared to AC-FET resulted in a significantly lower risk of large-for-gestational-age offspring, macrosomia, hypertensive disorders of pregnancy, and pre-eclampsia (Zaat et al., 2023). Therefore, it seems reasonable to recommend that NC-FET should be the preferred protocol for ovulatory women undergoing FET, and hence gestational carriers, in order to reduce the risk of obstetrical complications. Surrogacy can also be obtained by intrauterine insemination (IUI) when the gestational carrier also provides the oocyte.

Legislation concerning surrogacy

Legislation in this area varies from a complete ban in several European countries (such as France, Germany, Italy, and Spain) to the practice of surrogacy being legally accepted as long as it is altruistic/non-commercial (such as Greece and the UK), to allowed but not legally regulated (Belgium), or contract-based and commercial (such as the USA) (for data on Europe, see Calhaz-Jorge et al., 2024). There are indications that the practice has grown over the last 10 years, whether in a non-commercial setting such as the UK—where the most recent growth is linked to an increase of requests from male same-sex couples—or in the USA, where the last estimate reported surrogacy in 4.7% of ART cycles (Centers for Disease Control and Prevention, 2021; Horsey et al., 2022).

The legal ban on surrogacy in many countries has been one of the main factors leading to cross-border reproductive care, where patients in need of a specific technique go abroad to access treatments unavailable in their own country, mostly in a commercial setting. This sometimes leads to difficulties in the recognition of the citizenship status of the children upon return to their home countries (Wells-Greco, 2024). Moreover, in 2024, Italy passed a bill criminalizing people who seek surrogacy abroad, with penalties including imprisonment and high fines (Law of 4 November 2024, n. 169, see https://www.gazzettaufficiale.it/eli/id/2024/11/18/24G00187/sg). Several traditional destination countries for surrogacy, like India and Thailand, have introduced bans on foreign intended parent(s) after cases of abandoned offspring(s) led to worldwide outcry. This also happened with Ukraine, which was a well-known destination for cross-border commercial surrogacy before the war in 2021.

General ethical principles

Respect for autonomy

The gestational carrier should freely agree to carry and deliver a child on behalf of (an)other(s), and she is not expected to have parental responsibility for the future child. Before a pregnancy is established, the gestational carrier and the intended parent(s) need to come to an agreement with regard to prenatal care (including screening and testing), necessary medical treatments during pregnancy, and perinatal care.

While such agreements are sometimes not legally enforceable, they are an important tool to prevent unexpected decisions (by the gestational carrier) or undue pressure (by the intended parent(s)) during the pregnancy that violate the (reproductive) autonomy or well-being of either party. The recent revision of the EU Directive on Human Trafficking (Directive 2011/36/EU) considers exploitation of the surrogate by means of coercion, deception, or abuse of power as a form of human trafficking and thereby makes it punishable.

A surrogacy arrangement requires a very stringent informed consent process. The gestational carrier must be well informed and counselled about all medical, practical, and legal risks, as well as the burdens and benefits of surrogacy. She should understand this information, be competent to agree to the surrogacy arrangement, and consent free from outside pressure or coercion. While the gestational carrier agrees to make certain personal sacrifices to help the intended parent(s) achieve parenthood, she alone retains the right to make decisions regarding her body. To avoid conflicts due to misaligned expectations between the different parties, it is important that the agreement specifies those expectations and includes a clear statement about the responsibilities of both the gestational carrier and the intended parent(s). In countries where the gestational carrier’s current male partner would be the legal father of the child until the intended parent(s) become the legal parents, the consent of the gestational carrier’s current partner to the surrogacy agreement is also desirable.

Depending on local legislation and regulations, there may be an immediate transfer of parental responsibilities to the intended parents, before birth, at birth, or soon afterwards. In some jurisdictions, this is achieved by a prenatal contract (some USA states). Intended parent(s) should not be allowed to unilaterally change their minds after the start of the pregnancy, even in the case of separation or divorce. Rare cases of accidental death of both intended parent(s) before the birth of the offspring have led to debates as to who would be responsible for the child’s upbringing.

The gestational carrier makes a number of commitments limiting her personal freedom in the joint agreement with the intended parent(s), but in the rare event where disagreement occurs despite previous counselling and informed consent of all parties, it would be unethical and illegal to impose any behaviour or procedure on a pregnant woman without her consent. This is why implication counselling, with discussion of a variety of scenarios, is essential for all parties before they engage in the surrogacy agreement. Preferably, each party, the surrogate and the intended parent(s), should be counselled by a different team. The parties should reach a mutual agreement on all foreseeable issues and problems prior to the pregnancy.

There is a specific concern in respect to autonomy around the payment of the surrogacy, which is covered below in the section on commercial surrogacy.

Proportionality

The ethical principle of proportionality requires that the benefits (mostly expressed in terms of well-being) outweigh the harms, risks, and burden. In case of a surrogacy arrangement, extra attention must be paid to the fact that the benefits and harms are not equally distributed between all parties involved.

On the one hand, the most important benefit is that the surrogacy arrangement enables the intended parent(s) to fulfil their desire for (possibly genetic) parenthood, despite not being able to carry a pregnancy themselves. For the gestational carrier, empathy with the intended parent(s) and the well-being enjoyed during a healthy pregnancy are often quoted as reasons for becoming a gestational carrier (van den Akker, 2007; Imrie and Jadva, 2014). The former is an obvious reason for intrafamilial surrogacy, although one must be wary of possible psychological pressures, which should be discussed thoroughly during counselling.

On the other hand, a pregnancy always involves health risks for the pregnant woman. While a woman can freely decide to accept the risks, it is the healthcare provider’s duty to minimize them as much as reasonably possible. Risks include, for example, miscarriage, ectopic pregnancy, placenta previa, and placental abruption. Risks are increased in multiple pregnancies (Peters et al., 2018; Amorado et al., 2021). Therefore, only single embryo transfer is acceptable in surrogacy (Alteri et al., 2024). The gestational carrier should be fit for pregnancy as judged by appropriate medical and psychological criteria. All medical risks increase with age (Saccone et al., 2022; Sugai et al., 2023) and a complicated reproductive history. Thus, it is imperative to assess potential gestational carriers according to a protocol which includes an assessment of general health, number of previous pregnancies and possible complications, as well as previous mode of delivery, especially C-sections. Ideally, she should have completed her family, but with the increasing age of first pregnancy, especially in high- and moderate-income countries, it is acceptable for her to have successfully completed one pregnancy. Ideally, her age should be between 25 and 40 years of age.

Gestational carriers do not generally experience major problems after the pregnancy, if there was a careful selection of candidates and appropriate counselling, but some experience psychological distress when they hand over the child to the intended parent(s). While this is usually transitory, there have been reports of exceptional cases where the gestational carrier wanted to keep the child. With regard to the consequences for the family and child(ren) of the gestational carrier, the available information is extremely limited (Jadva, 2020; Riddle, 2022). The psychological consequences for the child(ren) of the gestational carrier of handing over the new-born sibling are still mostly unknown.

For the prospective child, avoidance of multiple pregnancy is again essential. From the psychological point of view, a few limited studies have now shown that intended parent(s)’ rejection or conflict between the intended parent(s) and gestational carrier is extremely unlikely, although rare cases have caused cessation of cross-border surrogacy, notably in India and Thailand (BBC, 2016).

On rare occasions, surrogacy is performed without a clear indication, for the convenience of a woman who could but is not willing to carry a pregnancy. Given that the unequal distribution of risks and benefits is unnecessary in this case, surrogacy is not proportional in this context and should not be performed.

Justice

Concerns of justice raised in the context of surrogacy relate to both the gestational carrier and the intended parent(s). Regarding the gestational carrier, concerns relate to exploitation and are linked to the debate on proper compensation, whereby both low and high payments can be considered as exploitative. Distributive justice requires that a gestational carrier receives adequate compensation to offset the risks and burdens she assumes for the intended parent(s). There is also a social justice concern that payments will lead to a disproportionate burden on women who are living in poverty (see below). Thus, a difficult balance needs to be found to ensure that the gestational carrier receives neither too much nor too little. A way to tackle this is to make distinctions between reimbursement for actual costs related to the surrogacy, compensation for non-financial costs such as efforts and burdens, and incentives/rewards/payments that result in a net benefit for the gestational carrier (Nuffield Council on Bioethics, 2023). Reimbursement for actual costs and loss of income due to the surrogacy arrangement is not controversial. Such reimbursement should not induce people to become a gestational carrier against their best interests, as this is unethical. There is a broad consensus that incentives/rewards/payments going above actual costs and losses should not be so large that they become an ‘undue inducement’, meaning that they push women towards a practice that they would never have engaged in if they were not in a financially vulnerable position (see the section ‘Commercial surrogacy’). Different regulators or clinics allow different levels of compensation for the gestational carrier’s burdens and efforts. While some argue that fairness requires such compensation (especially given the observation that other parties involved, such as fertility doctors, also receive compensation for their efforts), others are concerned that, especially in societies with high levels of income inequality, it will be practically impossible to determine when this ‘fair compensation’ becomes an undue inducement and therefore should be avoided.

Regarding the intended parent(s), justice concerns can be related to unequal access to surrogacy, which is an obstacle to the equitable treatment of women who seek access for clear medical indications, for single people, or same-sex couples who are barred from ART because of their status (e.g. marital status, citizenship, sexual orientation). Furthermore, commercial surrogacy is another barrier to equity, as it may be just too expensive to access the procedure, either locally or abroad, for some people. Even when surrogacy is non-commercial, it often entails sizeable legal costs.

Specific ethical principles

Commercial surrogacy

Several arguments have been presented against the (substantial) payment of the gestational carrier, commercial surrogacy. While, as argued above, compensation of the gestational carrier for medical expenses and income losses linked to the pregnancy and delivery is not only acceptable but a matter of justice, the acceptability of payment as an incentive to become a gestational carrier is controversial. On the one hand, it can be argued that this is no different from other instances of labour agreements that entail physical risks and burdens. On the other hand, concerns arise about the potential impact on women who are financially vulnerable and may feel pressured into a surrogacy agreement they would not voluntarily enter if they had other options. This is oftentimes expressed as an infringement on human dignity, the exploitation of (the body of) vulnerable women, an instrumentalization of the female body, or commodification of reproduction. Especially when the gestational carrier is in a low-income country, and the intended parent(s) are from a high-income country, with little oversight over the well-being of the gestational carrier, these are oftentimes legitimate concerns. Without making the strong claim that there is no theoretical possibility of organizing commercial surrogacy in a way that respects ethical standards, we do commit to the more modest claim that commercial surrogacy arrangements are more likely to result in exploitation than non-commercial ones and therefore should be avoided. The use of profit-making intermediate agencies (also called facilitators) should be avoided, and non-profit agencies favoured.

When all the above arguments are considered, altruistic/non-commercial surrogacy is the most acceptable form of surrogacy and should only include reimbursement of reasonable expenses and compensation for loss of actual income related to the pregnancy and delivery.

Decisional authority of the gestational carrier

Preconception and prenatal care

As the gestational carrier is undertaking the pregnancy freely and deliberately, she should behave as a reasonable pregnant woman by taking all the precautions advised in standard antenatal care (e.g. vitamins, no smoking, avoiding alcohol use).

Antenatal screening

A mutual agreement should ideally be reached along the lines of the usual recommendations of antenatal screening, including genetic testing, unless all parties decide otherwise consensually.

Termination of pregnancy

Consideration of possible medical and non-medical reasons for termination of pregnancy should be discussed by all parties prior to the pregnancy being established. The termination of a healthy pregnancy against the wish of the intended parent(s) is especially contentious as the whole procedure is undertaken for the very purpose of them becoming parents. However, where the law permits pregnancy termination, the gestational carrier has a legal right to do so, and this risk should be taken into account by the intended parent(s) when entering into the agreement. Given the principle of respect for autonomy and bodily integrity of a pregnant woman, it is impossible either to prevent the gestational carrier from terminating the pregnancy or to force a termination upon her. Nevertheless, if she freely accepted the surrogacy arrangement, she is (all things being equal) morally obliged to continue a healthy pregnancy.

Mode of delivery

Considering the principle of autonomy of the pregnant woman, she cannot be forced to accept the advice of the obstetric team, but she still has a prima facie obligation to accept the advice that will ensure the best outcome for the child as well as for herself.

Enforceability of the agreement

Legal enforcement of the gestational carrier’s behaviour is generally not possible before delivery. Therefore, counselling should raise all the points detailed above, and the parties should reach a mutual agreement on all foreseeable hazards and document them. Since the intended parent(s) and gestational carrier have agreed that the intended parent(s) are fully responsible for the resulting child, a gestational carrier has no moral right to claim custody over the child. Like a gamete donor, it is not intended that she acquires parental rights or responsibilities. Simultaneously, the agreement is also binding for the intended parent(s) in case the child is disabled or in case of an unwanted multiple pregnancy. Regardless of what was stipulated in the agreement, the child or children born are their responsibility.

It should be noted that the legal provisions surrounding surrogacy differ substantially across the globe and are often subject to change. Therefore, all involved should get up-to-date legal information relevant to the jurisdiction within which the surrogacy arrangement is carried out and, if different, where the intended parent(s) have legal residence.

The welfare of the child born from surrogacy

There is some empirical evidence and long-term follow-up regarding the social and psychological consequences of surrogacy arrangements (Söderström-Anttila et al., 2016), but there is no information available on the potential role confusion in the context of the upbringing of a child. Long-term consequences of the gestational carrier keeping in contact with the resulting family have not been studied either. The possibility of conflict cannot be excluded.

Openness by the parents towards the child about its mode of conception is advisable. The potential wish of the future child to know their genetic origin should be taken into consideration by the parents in cases where donor gametes or the oocyte of the gestational carrier have been used (Kirkman-Brown et al., 2022).

For cross-border surrogacy arrangements, an important concern is also the (legal) status of the child when the intended parent(s) return to their home country. The intended parent(s) should be strongly advised to address this issue before initiating the procedure and ensure that there will be no problems with the entrance and registration of the baby in the home country and with establishing legal parental rights.

Other concerns for the future children are related to the parent–child relationship. However, research has shown that the quality of the relationship of children with their family and the attitude of the society in which they live matters more than their mode of conception. The parent–child relationship has been found to be good (Zadeh et al., 2018; Golombok, 2020).

The duty and responsibility of the health care provider(s)

There is neither a moral nor a legal obligation on the part of the health care provider to collaborate in a surrogacy arrangement. If health care providers decide to collaborate, they have a duty (i) to inform all parties about the medical, social, psychological, emotional, moral, and legal issues involved in surrogacy; (ii) to make sure that the intended parent(s) fulfil the indications; and (iii) to ensure that the parties receive appropriate screening and counselling in order to reduce risk and promote free and well-informed decision-making. The health care provider has the same obligation of care towards the pregnant gestational carrier and the child as to any pregnant woman, although additional counselling and emotional support may be necessary. It is appropriate to have separate healthcare providers looking after the intended parent(s) and the gestational carrier (after she is pregnant).

Intrafamilial surrogacy

Different types of intrafamilial surrogacy can be distinguished: between sisters/cousins (in law) and intergenerational, either of a mother for her daughter or vice versa. The main concerns in the literature are moral coercion and relational bewilderment for the offspring. There is no principled objection to intrafamilial surrogacy by mother, daughter, or sister (in-law), but age limits for the surrogate should be considered. No evidence is available at present that such arrangements have generated additional problems, but careful and individual counselling of both parties is indispensable. For those cases where the daughter (in law) serves as a gestational carrier for her mother, there may be an increased risk of dependency and undue pressure.

Cross-border surrogacy

As surrogacy is banned in many countries and very expensive in others, many people have sought surrogacy abroad. Legal complications involve the legal recognition of children born through international surrogacy arrangements, such as children born in the host country needing documents to travel back home with the intended parent(s) (Shenfield et al., 2011; Shenfield, 2016). Exploitation is an important concern in the context of cross-border surrogacy, as discussed above.

Recommendations

Non-commercial surrogacy is an acceptable option to help the intended parent(s) for whom it is impossible or medically contraindicated to carry a pregnancy. It is essential that there are measures and guidelines to protect all parties, to guarantee well-considered decision-making, and to minimize risks. The intended parent(s) should understand that the gestational carrier has the ethical right to make decisions about her pregnancy against their will and against the original agreement. The varied legal settings worldwide mean that a sizeable proportion of surrogacy is carried out across national borders, and this brings with it other issues, such as risks of geographical exploitation and ensuring legal parenthood arrangements can be made. Given the risks involved in surrogacy for both parties, it should only be considered in exceptional cases, such as the absence of the uterus regardless of aetiology (absolute medical indication), serious health risks for the intended mother, and difficulties in becoming pregnant (relative medical indication), combined with a substantial negative impact of infertility on the well-being of the intended parent(s) or male same-sex couples or single males (non-medical indication).

Recommendations for surrogacy arrangements (Fig. 1):

• All parties involved should be counselled separately by independent healthcare providers.

• The gestational carrier and the intended parent(s) should receive independent legal advice.

• The gestational carrier should be able to carry a healthy pregnancy as judged by appropriate medical and psychological criteria.

• Because of the risks involved for the gestational carrier, it is unacceptable to use surrogacy if the intended parent(s) are able to carry a pregnancy in the absence of significant risks or negative impact.

• To ensure free and well-considered decision-making by the gestational carrier, it is strongly advisable that the woman already has at least one child.

• Only one embryo should be transferred in order to prevent multiple pregnancies and to avoid unnecessary endangerment of the health of the gestational carrier and the future child.

• Payment should be limited to the reimbursement of reasonable expenses and compensation for loss of actual income.

• Clinics and health care providers offering surrogacy as part of a reproductive treatment have the moral responsibility to register their data for (future) scientific research and invest in follow-up studies for data collection. All parties who apply for surrogacy should be made aware of the clinic’s commitment to monitor the practice as part of the informed consent procedure.

• Surrogacy should be included in national and international registries.

• Follow-up studies of the gestational carrier, the intended parent(s), and their families should continue to gain insight into the psychological impact of surrogacy, especially on the child(ren).

Data availability

No new data were generated or analysed in support of this article.

Acknowledgements

The authors would like to acknowledge the authors of the previous version of this ethical reflection, as well as the members of the ESHRE Ethics Committee 2022–2025 and the members of the ESHRE Executive Committee for their comments, advice, and guidance.

Authors’ roles

F.S. and B.T. drafted the manuscript. N.V. provided technical support. All authors critically revised and approved the manuscript.

Funding

European Society of Human Reproduction and Embryology (ESHRE).

Conflict of interest

None declared.

Footnotes

References