The different manifestations of violence against women and girls in the context of surrogacy 1/

 

Terminology

 3. Surrogacy is defined as a practice in which a woman (the “surrogate mother”) becomes pregnant and carries a child for another individual or couple (the “commissioning parent(s)” or “intended parent(s)”). 2 Such arrangements may be made directly between the surrogate and the intending parent(s) or facilitated through a surrogacy clinic or agency. In international human rights law, a mother is defined as a woman, understood in its ordinary meaning to be a female of childbearing ability, 3 who gives birth to a child.4 After birth, the terms “intended mother” and “legal mother” are often used to refer to a woman who undertakes parental responsibilities towards the child.5 The present report uses the terms “surrogate mother(s)” and “surrogate(s)” instead of “gestational carrier(s)”, as the latter is sex- and gender-neutral, reducing women to their reproductive function and objectifying those involved. 6 

4. Surrogacy may be categorized as either traditional or gestational. In traditional surrogacy, the surrogate provides her own egg, which is subsequently fertilized with sperm from either the intending father or a donor, typically through artificial insemination. As a result, the surrogate is genetically related to the child that she carries. In gestational surrogacy, which has become an increasingly prevalent practice, an embryo created from the gametes of the commissioning parent(s) or donors is implanted in the surrogate, who therefore has no genetic connection to the child.7 

5. In a commercial surrogacy, the surrogate receives financial compensation beyond the reimbursement of medical and related expenses. In what is known as altruistic surrogacy, the surrogate receives no formal compensation other than reimbursement for reasonable costs. These distinctions are often blurred, particularly in jurisdictions where commercial surrogacy is formally prohibited but where reimbursement is so high that it effectively constitutes commercial payment. Few  jurisdictions that regulate surrogacy maintain frameworks that are genuinely non-commercial, 8 hence surrogacy arrangements are “almost invariably commercial” in nature.9

1 Viveca Söderström-Anttila and others, ‘“Surrogacy: outcomes for surrogate mothers, children and the resulting families – a systematic review”, Human Reproduction Update, vol. 22, No. 2 (March/April 2016). 

2 Ana Rita Igreja and Miguel Ricou, “Surrogacy: challenges and ambiguities”, The New Bioethics, vol. 25, No. 1 (2019). 

3 A/HRC/59/47, para. 4. 

4 International Covenant on Economic, Social and Cultural Rights, art. 10 (2).

 5 See David de Groot, “Surrogacy: the legal situation in the EU”, EPRS Briefing, No. PE 769.508, February 2025. 

6 Submission by Natalia Rueda. 

7 Igreja and Ricou, “Surrogacy: challenges and ambiguities”.

8 Claire Fenton-Glynn and Jens M. Scherpe, “Surrogacy in a globalized world: comparative analysis and thoughts on regulation”, in Eastern and Western Perspectives on Surrogacy, Jens M. Scherpe, Claire Fenton-Glynn and Terry Kaan, eds. (Intersentia, 2019). 

9 Law Commission of England and Wales and Scottish Law Commission, Building Families through Surrogacy: A New Law – Volume II: Full Report (2023). 

https://docs.un.org/en/A/80/158