The surrogate pregnancy is an arrangement in which a woman carries and delivers a baby of another woman and the baby and the pregnant woman do not have any genetic relationship whatsoever. To do so, it is necessary the in vitro fertilization with the gametes from the couple in which the woman cannot be pregnant and the transference of the resulting embryos to the woman whose uterus will host them (uterus donor).
In order to make the surrogate pregnancy feasible, at the same time that the biological mother undergoes ovarian hyperstimulation, the uterus donor undergoes the endometrium preparation, so as to have her body receptive to the embryos on the appropriate time for their transfer. As other in vitro fertilization procedures, the chances of getting pregnant depend on the age of the woman who produced the eggs.
In Brazil, the procedure is normatized by Conselho Federal de Medicina (Federal Medicine Council CFM) according to the resolution number CFM n° 1358/92 (ratified by the resolution n° 1957/10) that deals with ethical rules to use the assisted reproduction techniques and in its item VII deals with this issue according to the following guidance:
VII – ABOUT THE SURROGATE PREGNANCY (THE UTERUS TEMPORARY DONATION)
Clinics, Centers or Human Reproduction Services may use Assisted Reproduction techniques on Assisted Reproduction to create surrogate pregnancy situations as far as there is a medical problem that prevents or counter indicates the pregnancy by the genetic donor.
1 – The surrogate mother must belong to the family of the genetic donor, up to second level of kinship. Any other case must have the authorization of Conselho Regional de Medicina.
2 – The surrogacy cannot be profitable or commercial.
Resolution from the Federal Medicine Council CFM number 1957/10 – Approved in a Plenary Session in 10/15/2010 – Published on D.O.U. in 01/06/2011 – Section I Page 79
Both the couple and the surrogate mother receive an inform about the steps and procedures of the treatment. Before it starts, the three people involved must GO through a psychological evaluation, so that their emotional stability to face of phases of the treatment, as well as pregnancy and the baby birth will be checked under these special circumstances.
In Brazil, the legal concepts consider mother the woman who gave birth, this indicates that filiation results from birth. Therefore, the legal adjusts to the child’s birth registration are based on a gentlemen’s agreement between the parts involved.
The Judiciary has the duty of analyzing the situation and it also legally determines the filiation, if, in the future, there is a dispute between the genetic mother and the surrogate mother, the well-being and convenience of the child will be the most relevant.