Uterus Transplant and Surrogacy Reform

There have long been calls for reform to surrogacy law – and the Law Commissions’ recent project represented a significant step towards meaningful change. However, the regulation of surrogacy cannot be considered in isolation and inevitably raises questions about other reproductive technologies. A symposium, funded by Broadly Conceived, explored the broader implications of the Law Commissions’ recommendations relating to surrogacy. In this blog series, each presenter from the symposium reflects on the impact of these recommendations on current (and future) reproductive practices.

Dr Natasha Hammond-Browning, Cardiff University. 

Key words: uterus transplantation, donation, pregnancy, law reform.

Image credit: freepik.com

Introduction

As examined in an earlier post in this blog series, there is no suggestion that recommended reforms of surrogacy law are likely to progress. However, advances are being made in an alternative area of reproduction - uterus transplantation (or UTx).

Uterus transplantation combines organ donation / transplantation and assisted reproduction medicine. It involves transplanting a uterus from a living or deceased donor to a recipient with a gestational intention. Recipients are cisgender women who have congenital or acquired absolute uterine factor infertility (AUFI); either born without a uterus, had their uterus removed, or have a non-functioning uterus (so are unable to gestate). To date, most recipients have Mayer-Rokitansky-Küster-Hauser syndrome (MRKH), a congenital condition where you are born with an underdeveloped or non-existent uterus and vagina. Uterus transplantation is being performed worldwide, with the majority taking place in a clinical trial setting although some centers in the United States now offer uterus transplantation as a treatment for AUFI.

The process

Uterus transplantation is unique amongst organ transplants as it is a temporary transplant performed on essentially healthy individuals for reproductive purposes. The process is lengthy and complex, initially requiring potential recipients to pass a selection process. Once selected, uterus transplantation involves:

1. The potential recipient undergoes in-vitro fertilisation (IVF) to create viable embryos

2. The uterus is explanted from either a living or a deceased donor

3. The uterus is transplanted into the recipient who will take anti-rejection immunosuppressant medication until removal of the uterus

4. Approximately 3-6 months post-transplant, and subject to medical approval, the recipient will undergo embryo transfer to hopefully result in a viable pregnancy

5. Birth via caesarean section will take place at approximately 37-39 weeks (or sooner if medically required)

6. The recipient may have the option of a second pregnancy

7. The uterus will be removed either at the time of birth or shortly after.

   
   

Surrogacy is when a woman carries and gives birth to a baby for another person or couple. In gestational surrogacy arrangements, the eggs of the intended mother or a donor are used, whereas traditional surrogacy involves the surrogate’s egg being fertilised with the intended father’s sperm. Compared to uterus transplantation, surrogacy is an easier process for the intended mother, as she does not need to go through a transplantation process, and also does not run the gauntlet of possible pregnancy complications. Although if the intended mother’s eggs are to be used, she will need to go through the egg retrieval process which has its own risks.

Reproductive tourism

The first baby was born following a uterus transplant in September 2014. Since then, over 140 transplants have taken place, resulting in over 70 babies born worldwide. Transplants have occurred across continents, including one example of uterus transplantation tourism where the transplant occurred in Serbia, the embryo transfer in Sweden, and the birth in Italy. This case demonstrates how uterus transplantation tourism can and has happened and that those involved in uterus transplantation need to consider the risks of differing and diverging practices and regulations in different countries, which could lead to practical and ethical concerns (as well as legal) dependent upon where the various procedures are performed. This is comparable to international surrogacy arrangements where we have seen IVF performed in one country, the implantation of embryos happening in another, and then the surrogate being moved to another county to give birth, and the legal difficulties that this has caused. This has resulted in widespread concern, yet the Law Commission failed to deal with international surrogacy arrangements due to the difficulty of creating and implementing cross-border regulation.

Accessibility and selection criteria

It has been argued that the development of uterus transplantation could be a viable alternative to surrogacy. Uterus transplantation has developed as a way for women with AUFI to gestate; this will give some individuals a reproductive choice in jurisdictions where surrogacy is difficult or impossible, such as Italy where surrogacy is illegal both domestically and internationally.

However, it must be recognised that uterus transplantation is currently available to a limited group of potential recipients, meaning it is unlikely to significantly impact the numbers pursuing surrogacy. Uterus transplantation is available to cisgender women with AUFI who have their ovaries, and some countries further limit this to cisgender women who have a male partner. In addition, as the process involves the use of the recipients’ own gametes, there are upper age limits enforced.

Therefore, for anyone who is not a cisgender woman with AUFI and does not have their ovaries, surrogacy would remain the primary reproductive option if they are unable to gestate. Within the UK, surrogacy is available to ‘non-traditional’ families such as male same-sex couples, and these – ineligible for a uterus transplant - would continue to need to access surrogacy to realise their reproductive wishes.

The cost of pursuing uterus transplantation and surrogacy must also be a consideration – a recent study calculated the total cost of a uterus transplant as being €124,884, and it was reported that a uterus transplant in the UK costs £25-30,000 for the transplant alone. While most uterus transplants are currently happening as part of funded clinical trials, there is debate about who should fund this procedure as it moves towards treatment for AUFI. Further, two recent reports in the journal Fertility and Sterility, while using different methods, calculated that the cost of uterus transplantation was significantly higher than surrogacy.

Motivations

One aspect of uterus transplantation that has been under researched so far, but which significantly impacts reproductive decision-making, is the motivation to pursue a uterus transplant, and how this may influence whether someone seeks a uterus transplant or pursues parenthood through surrogacy.

There are several motivations that are mentioned in the literature, all of which are outlined here for completeness:

• To experience pregnancy

• To raise a child

• To have a genetically related child

• To complete gender identity

• Ethical or religious objections to surrogacy

• Financial constraints

The desire to complete gender identity is not examined here, as it is not a reproductive desire, and therefore does not influence decisions about surrogacy, which (like uterus transplantation) has a reproductive purpose and would not complete someone's gender identity.

The desire to raise a child can be satisfied by both surrogacy and uterus transplantation, as will the desire to have a genetically related child where one’s own gametes are used. However, it is the first motivation, to experience pregnancy which, admittedly with little evidence, appears to be the strongest factor that leads potential recipients towards a uterus transplant over surrogacy. This is despite suggestions that the gestational experience differs from a traditional pregnancy, as foetal movements are experienced differently and they will not experience contractions. It should also be recognised that some uterus transplant recipients have pursued surrogacy (or adoption) prior to transplantation, and yet have also subsequently undergone uterus transplantation.

Potential recipients may desire uterus transplantation over surrogacy due to ethical or religious objections to surrogacy, financial constraints (commercial surrogacy can be very expensive, and even altruistic surrogacy can cost several thousand pounds), and/or owing to legal prohibitions preventing or restricting access to surrogacy in the country that potential recipients reside. In the UK, altruistic surrogacy is not prohibited although access is limited due to the small number of non-commercial agencies and available surrogates. It must also be recognised that accessing uterus transplantation is difficult: most centres performing transplants are operating as clinical trials with limited numbers of transplants permitted to be performed, so surrogacy may continue to be the preferred option, where there are no other constraints.

Uterus transplantation is far more physically demanding on the recipient than a pregnancy for a surrogate due to the transplantation surgery involved, so why pursue uterus transplantation? Experiencing gestation is a strong motivating factor, but it could also be due to the legal uncertainty surrounding parenthood following surrogacy in the UK. Currently, intended parents are not legal parents from birth and must apply for a parental order. That legal uncertainty would continue even if the reform recommendations are implemented:  while intended parents could be legal parents from birth, the surrogate would be able to withdraw her consent under the  proposed pathway. This contrasts with uterus transplantation where the legal parents are recognised from birth, and so that may factor into the reproductive decision-making process.

Conclusion

What becomes apparent is that motivations matter in making reproductive decisions. If experiencing gestation is the overriding motivation for undergoing uterus transplantation, the Law Commissions’ proposed changes to the law on surrogacy are unlikely to have any impact upon the desirability of uterus transplantation. If the current uncertainty around legal parenthood is another strong motivating factor for pursuing uterus transplantation over surrogacy, then it is possible that reform would make people lean towards surrogacy over uterus transplantation.

Reproductive choices and informed decision-making are vital. As scientific advances are made in uterus transplantation, and legal reform progresses with surrogacy regulation, some women with AUFI will have the option to decide which reproductive route they wish to pursue to fulfil their reproductive desires.