Surrogate motherhood creates an ethical minefield

A gay couple’s government-funded IVF twins have created a storm of controversy in Canada.
Margaret Somerville | May 13 2014 | comment  



The announcement by Quebec radio host Joel Legendre that, later this summer, he and his male partner, Junior Bombardier, would become the parents of twin baby girls has received much media attention. It’s reported that the babies were conceived using “an ovum bought from an American [gamete] bank” (if only one ovum was used, they are identical twins, if two, they are sibling twins) and are being carried by a Quebec surrogate mother, who became pregnant though in vitro fertilization (IVF) paid for by the Quebec government healthcare fund (RAMQ). What ethical issues does this scenario raise?

How should we view surrogate motherhood?

Quebec’s Civil Code provides that surrogate motherhood contracts are null and void ab initio, that is, cannot be enforced. That reflects the view that surrogacy is contrary to public policy and, therefore, not to be condoned or facilitated. Paid surrogacy degrades and exploits women, especially under-privileged ones who become a “breeder class”, commodifies children, and denigrates human reproduction.

In 2011 the European Parliament adopted a resolution condemning surrogacy as a violation of women's human rights. As Americans, Kathleen Sloan of the National Organization for Women and Jennifer Lahl, president of the Center for Bioethics & Culture write: “Human rights violations against women and children are being reframed as "human rights" to a child. … The women required to breed these children are non-entities, merely "incubators," "hosts," "ovens" or "gestational carriers;" it is very difficult to imagine anything more objectifying.” 

Should surrogate mothers be paid for their gestational services?

Parliament answers this in the Assisted Human Reproduction Act 2004, which prohibits both payment of surrogate mothers (except for reimbursement of reasonable expenses) and any person offering to pay a woman to be a surrogate mother, advertising such payment offers, acting as an intermediary or accepting consideration for arranging for the services of a surrogate mother. These are crimes punishable by up to 10 years in prison and a C$500,000 fine.

Paid surrogacy, in effect, amounts to manufacturing babies for adults who want them, turning the babies into commercially viable products that are at the centre of a worldwide “fertility industry” that generates billions of dollars annually.

Michael Sandel, in his book What Money Can’t Buy: The Moral Limits of Markets, explains that commodifying some human interactions, such as parents’ relationships to their children, is unethical. Payment of surrogates creates unfairness – only the wealthy can buy and only the poor  sell – and corrupts the values that relationship represents, that parents’ love for their child is unconditional, priceless and hors de commerce.

Should taxpayers’ money be used to provide IVF?

Quebec answered “yes”, although not everyone agrees. The Government justified its decision on the grounds that payment enabled them to regulate IVF to avoid multiple pregnancies, which would save healthcare funds, overall, as the number of premature babies would be reduced, and, as a matter of justice, it would give people unable to pay for IVF access to it.

But, should there be limitations on access to IVF when surrogacy is involved?

Should we distinguish between “medical infertility and  “social infertility” (same-sex couples, single persons, or fertile opposite-sex couples, where the woman, for non-medical reasons, wants to avoid pregnancy by using a surrogate) and pay only for the former on the grounds that treating social infertility is not “healthcare” and, therefore, not open to public funding?  This is not a theoretical question. It’s reported that five other couples are waiting to follow in Mr Legendre’s and Mr Bombardier’s footsteps.

Who should be at the centre of decision making about the use of reproductive technologies and surrogacy?

Sloan and Lahl point out that “In the media, the longing of childless people to have children always takes center stage” and that the risks and harms to surrogate mothers are ignored or suppressed with praise for the surrogate’s generosity and “altruism”.

The same peripheral status is true for the resulting children. The adults who want a child are placed at the centre of the decision making about the use of reproductive technologies. But, ethics requires we place the child, as the most vulnerable person, at the centre.

Consequently, we must act primarily on the basis of what respect for children’s coming-into-being and their future well-being require that we not do, and what they have a need and a right to know about the people through whom life travelled to them and with regard to contact with those people, including sperm and egg “donors” and surrogate mothers.

So, leaving aside larger questions of what needs and rights of children regarding the family structure in which they will be  reared must be taken into account in IVF decision making, does it matter ethically whether, for example,  the Legendre twins are full or half siblings? What if Mr. Legendre and Mr. Bombardier had bought two ova from the same woman and Mr. Legendre’s sperm was used to fertilize one and Mr. Bombardier’s the other, is this placing the children at the centre or dangerously close to creating “designer children” and “breeding” humans? And, what about, as reported, that their sperm was mixed before using it for fertilization? Such mixing is regarded as unethical, which raises questions about the ethics of the physicians involved.

What do we know already about children born from donated gametes?

Many say they feel deracinated, cut off from their biological families, their genetic origins – they call themselves “genetic orphans”; that “half of them is missing”, that “there is a black hole beneath them of which they can never reach the bottom”; they can’t understand “how society could have done this to them” by failing to prohibit the way they came into being, let alone society being complicit in the wrongdoing by funding it.

The cruel irony is that the “commissioning parents” want to have a child to whom they are genetically related, yet they deny precisely this relationship to the child.

Finally, how is surrogacy different from adoption?

In adoption, a child is in need of a family and we are dealing with a situation that was not intentionally created. We usually see the birth mother, in agreeing to adoption, as making a major sacrifice in what she believes to be the best interests of her child.

In surrogacy, we have adults wanting a child and creating one with the intention that its mother will give it away. Surrogacy does damage to societal values that uphold the automatic bonding of parents to their children and their unconditional love for them just because they are their children, that adoption does not.

Margaret Somerville is the founding director of the Centre for Medicine, Ethics and Law at McGill University. 



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