P-378 Does surrogacy (unexpectedly) provide protection of the right to life of the unborn child?
Authors: Samardzic S 
Published: June 2023

Study question

How surrogacy contracts provisions provide greater protection to the unborn children compared to the case of natural conception?

Summary answer

The right to life of the unborn child seems to have a broader scope of protection than it does in the case of natural conception.

What is known already

The surrogacy contract usually contains a provision according to which a surrogate will not terminate the pregnancy unless her own life is at risk. On the other hand, intended parents have the right to request the termination of pregnancy only when there are eugenic indications. It is evident that the conditions under which pregnancy can be terminated are more rigid than in the case of natural conception.

Study design, size, duration

The research was conducted based on different types of surrogacy contracts applied in different legal systems. Countries where surrogacy is allowed, but also where it is widespread, such as certain US states, are covered. In addition, an overview of the legal texts of individual countries, which refer to the issue of termination of pregnancy in the case of surrogacy, is given.

Participants/materials, setting, methods

During the research, the comparative legal method was used, as well as the analysis of various contracts on surrogacy, as well as the judicial practice of national and supranational courts.

Main results and the role of chance

The right to life of the unborn child in the case of surrogacy enjoys protection from the moment the embryo is implanted in the surrogate mother, while in the case of natural conception, in most legal systems, this protection of the right to life is shifted to a certain gestational age, up to which termination of pregnancy is completely free. In this way, the rights of the unborn child are placed above the rights of the surrogate mother and that was exactly what was unacceptable for the UN Convention on the Rights of the Child and why the protection of the right to life of the unborn child is missing in the text. The right to life of an unborn child almost completely depends on the desire of the intended parents to have a child that will be completely healthy. However, if during the pregnancy of the surrogate mother, no danger to the life and health of the child is established, it seems that the intended parents do not have the right to demand termination of the pregnancy. All of the above implies a lot of ethical and legal dilemmas, which require careful scientific analysis.

Limitations, reasons for caution

It is disputable what would happen if serious indications for termination of pregnancy were determined and if intended parents demanded termination of the pregnancy, but the surrogate mother refused. More precisely, whether the surrogate mother is obliged to terminate the pregnancy when she is required to do so?

Wider implications of the findings

Forasmuch that in the case of surrogacy, several persons can request termination of pregnancy, this right becomes limited, and it no longer belongs only to the woman. This could affect the change of discourse in the case of natural conception and limit the right of the pregnant woman.

Trial registration number

not applicable