‘Ana Obregón, mother of a girl born by surrogacy at age 68,’ announced the ABC headline this Wednesday. The news, advanced by the magazine ‘Hola!’, quickly unleashed a chain of political and social reactions about a practice that is illegal in Spain, but that has not prevented thousands of Spaniards from taking advantage of it in other countries where it is allowed. , as the well-known presenter and actress has done. Amid the controversy, however, not many people know that the debate has thousands of years of history.
In simple terms, surrogacy, also known as ‘surrogacy’, is a process by which a woman carries out the entire process of a pregnancy and gives birth to a boy or girl for another person or couple, renouncing the legal rights to the baby at the time of birth. In Spain, the article that makes it very clear that it is not allowed is 10 of Law 14/2006: «The contract by which the gestation is agreed upon, with or without a price, by a woman who renounces maternal affiliation in favor of the contracting party or a third party”.
In other words, the only legal way to have someone else’s child in this country is adoption. But, who spoke for the first time about surrogacy and what was said about it? Mentions of this practice can be found in ‘Genesis’, the first book of the Old Testament, in which it says: «And Rachel [esposa de Jacob] He said: ‘Behold my servant Bilhah; from her enter her and she will give birth on my knees and I too will have children from her. He gave her servant Bilha to her for a wife, and Jacob went in to her. And Bilhah bore Jacob a son.”
This mention is not the oldest nor the only one in the Bible that refers to what is called surrogacy today. An example is Sara, Abraham’s wife, who, given the impossibility of getting pregnant, lends her servant Agar to her so that she can give birth to a son for him. She named him Ishmael. «There are other similar stories in Genesis, from which the legitimacy of surrogate mothers cannot be deduced, although it is indisputable that the resource of pregnancy by other women to have a child, taking advantage of their poor conditions, has always existed». explains Eleonore Lamm in her article ‘Surrogacy. Bibliographic review’ (Universidad de Cantabria, 2013).
There are also records of surrogacy programs in ancient Mesopotamia, in the mid-18th century BC. C. Among the Sumerians it was customary to contract bellies legally. The Code of King Hammurabi, considered the oldest set of laws, was the first to rule on the matter: it established that the barren woman who wanted to have children could give a slave to her husband so that he would procreate for her, without him another concubine could be found until he conceived a male child with her. In this process, in addition, surrogate mothers were protected, who could not be sold “for money.”
The inability to engender offspring was also remedied in Ancient Rome, but only for noble marriages. In this case, they resorted to friends or family to be able to have children, when the newlyweds found that one of the spouses was sterile. The couple used to go to a cousin, sister or close friend who had already given birth to commit to having another for them. The only condition was to swear eternal friendship and, above all, offer the mother who had given up her womb a series of disinterested gifts, which could be as valuable as a large house on the beach.
Weeks before conceiving the child, this friend or relative would move into the beneficiaries’ home to be under the care of their personal doctors until their child was born. “She gave birth there and, at birth, the baby was immediately handed over to the second couple, the biological mother renouncing him forever,” Paco Álvarez explained to ABC four years ago, after the publication of ‘Somos Romanos’ (Edaf, 2019), an essay on Ancient Rome that doubled as a study in genetics.
The ‘womb for rent’ was a widespread practice in Ancient Rome, but only the nobility had sufficient financial means to access it. A situation that also occurs, in part, today. According to the data provided by the Ministry of Foreign Affairs to ABC through the Transparency Portal, since 2010 Spain has registered 2,350 minors born by surrogacy abroad. Most of them came from Ukraine, a country where until before the war heterosexual Spanish couples who could not have children attended and where the process costs approximately 50,000 euros.
In Spain there are also many registered babies who were born in the United States, where regulations vary by state, so some allow homosexual couples or single people to access this technique. The costs are much higher, over 100,000 euros on average. In the case of Ana Obregón, there is talk of 150,000 euros. In Ancient Rome, this practice was also a luxury within the reach of very few people, among other things because the nobles had to pay for their sons’ political career.
“Couples that had two children could rarely give both of them the chance to pursue a political career,” Álvarez clarified, who then staged the call from a Roman to his best friend as follows: “Hey, look, my woman is not getting pregnant and you already have two children… Would you mind if the next child you have is ours?». In this most primitive version of the ‘wombs for hire’ resided the greatest proof of friendship between powerful citizens of the Roman Empire.
american civil war
The first case in the United States, the country in which Ana Obregón and other Spaniards have had their children by surrogacy, has been found in the time before the civil war, in the mid-19th century. In their article ‘The surrogate motherhood contract: The American experience’ (‘Valdivia’ Magazine, 2012), Camilo Rodríguez-Yong and Karol Ximena Martínez-Muñoz say that many slaves from this era gestated babies that later became their masters so that, when they grew up, they would work on their land.
The first surrogacy arrangement using artificial insemination was not documented until 1976. It was sponsored by Noel Keane, a lawyer from Michigan (United States) who created Surrogate Family Service Inc, an organization to help couples with childbearing difficulties, which facilitated access to contracted mothers and was in charge of carrying out all the necessary procedures. It was he, in fact, who coined the term ‘contracted surrogacy’ to refer to ‘surrogacy’.
The first case of gestation by complete substitution reported worldwide took place in 1986, when the embryos that came from a woman without a uterus were transferred to that of a friend. She gave birth to a baby who had no genetic relationship with her and who, from then on, would be known as Baby M. One day after the delivery of the newborn, the mother who rented her womb repented and tried to get it back. In 1987 a judge upheld the surrogacy agreement, although a year later the New Jersey Supreme Court revoked it. However, he retained legal custody for the non-biological parents.
Due to the repercussion of the Baby M case, the state of Michigan passed a law to completely prohibit surrogacy and Keane closed his clinic to start the same business in other states. She did not go wrong, because he arranged about 600 agreements between 1976 and 1997, in which he charged $ 20,000 for each, half of which were for the surrogate. In addition, the client had to pay an additional $5,000 for medical expenses.