VICTORIA, British Columbia — The deal was signed; the sperm was collected; the baby was conceived. All the usual steps in the surrogate motherhood cycle were successfully completed. Then something went wrong. The dream baby the young, wealthy British Columbia couple had implanted in the womb of a young, poor single mother turned out to have Down syndrome.
The prospective parents pulled out and called for an abortion post haste. They didn’t want damaged goods. But the surrogate mother refused. She would raise the child herself, she said, if only they would help her with expenses. That was not part of the deal, they responded. It would be totally her responsibility. As a single mother with two children of her own, and a contract that gave her no leverage, she reluctantly went through with the abortion.
When the case was raised — with no names attached — at a recent fertility conference in Canada, it created headlines and debate nationwide — and set antennae atwitter in the U.S. too. No surrogacy contracts have ever been contested in Canada, but ethicists had warned that it was bound to happen, and when it did, those contracts might not, and should not, stand.
Similar issues will arise increasingly in the U.S., ethicists predict, where only a handful of states specifically back surrogacy contracts.
“This should be a matter for family law, not commercial law,” declared Juliet Guichon, a professor of law and ethics at the University of Calgary’s medical school. “In family law, the interests of the child come first.”
Another ethicist, Jennifer Parks of Chicago’s Loyola University, agrees. “I read so many papers on surrogacy which are morally bankrupt. They are based on economic theories that assume these agreements are between rational and equal adults. They sidestep ethical issues and ignore the rights of the child.”
Guichon hopes that someone will challenge a surrogacy agreement in a Canadian family court. There, she says, it doesn’t matter what the parents agreed to before a baby was conceived or born through natural means; it just matters who was biologically responsible for the conception.
“If the mother claimed she was on the pill or if the man said he wouldn’t provide support if she got pregnant, the family court doesn’t care about that,” said Guichon. “The baby needs support, so the court looks around for who can provide it. And it looks to the genetic parents.”
Guichon believes that under family law the court would put a financial onus on the commissioning parents regardless of the pre-existing contract. After all, she notes, “all three people came together to create a child.”
In the U.S., says Parks, “there is a patchwork of laws from state to state.” Some have no laws; others have outlawed surrogacy, regarding it as tantamount to baby selling. According to the Human Rights Campaign website, six states explicitly accept surrogacy contracts: Arkansas, California, Illinois, Massachusetts, New Jersey and Washington.
On the other hand, at least 19 states ban them, another 13 won’t enforce contracts, and 10 ban a third party — such as a lawyer — from profiting from such contract agreements.
Parks and Guichon say that contract law is inadequate when human life is involved. Said Parks: “We are not born into contracts; we are born into relationships and into families. In relationships we ask: What do we owe the other person? What do the wealthy intended parents owe to the poor surrogate mother? Is it only money?”
Parks says that feminist thinking and Catholic thinking converge on surrogacy because “both are concerned with the dignity of the persons involved” and see the contractual relations involved — especially with commercial surrogacy — as destructive of human dignity for both the mother and offspring.
What’s more, both see the surrogate mothers as being coerced by their poverty into ignoring the health risks and the social costs, says Parks. In India, for example, surrogacy must be done in secret; it is regarded as a shameful act akin to prostitution. There, according to an article on the New Delhi TV website, women are paid as little as $5,600 to bear a child, or “double of what [one surrogate mother] earned as a sales executive in a year.”
Guichon goes further. She has seen anecdotal evidence suggesting surrogate mothers are having these babies out of guilt over a previous abortion or having given up a previous child for adoption. Some have been sexually abused and have learned, like prostitutes, to “disassociate themselves from their bodies and have a stranger’s baby, just as a prostitute can have sex with a stranger.”
The charge of exploitation also applies to egg donation, another route to enhanced fertility, where a woman bears the child she wants to raise using implanted eggs.
In fact, Jennifer Lahl of the California-based Center for Bioethics and Culture, has titled her new documentary film on the commercial traffic in human eggs Eggsploitation. The film, released in August, argues that women living in poverty, or students with daunting educational debts, are lured into psychologically and medically risky egg-donation procedures by fees as high as $50,000 in the U.S. and considerably less in Eastern Europe or Asia.
But Lahl says the women aren’t told of the risk of infection and infertility that could result from being given several large doses of various hormones to accelerate the production of mature eggs. Eggsploitation focuses on three women who lost their fertility and one who died from complications from donating eggs: “But there are no follow-up studies of donors, so no one really knows the risks.”
Since the risks aren’t known, she says, it follows that “there can be no informed consent. And if money is on the table when the offer is made to a poor woman, that isn’t informed consent either.”
Lahl says the commercialization of childbirth and fertility leads society to devalue human life. The production of eggs and embryos for experimentation is one outcome. She worries, too, about children born through artificial means, who may yearn for contact with or knowledge of their biological parents: “It’s a huge social experiment we are engaged in.”
Lahl’s film is being promoted by Feminists Choosing Life of New York, which is using it in its fight to stop state funding, of up to $10,000 per donation, to induce women to donate eggs for stem-cell research.
But Sally Rhoad, a former surrogate mother who runs an Ontario website assisting both prospective “intended” parents and surrogates, says the new reproductive technologies “are wonderful when they are successful. Thirty years ago people with fertility problems just wouldn’t be able to have babies.”
She remains in touch with the child she bore as a surrogate.
She admits, however, that most surrogacy procedures fail. She has helped arrange 18 surrogacies this year, she says, “but only four are pregnant.”
Nobody involved takes the process lightly, she says. “They don’t do this on a whim, and when it fails, it is devastating.”
Steve Weatherbe writes from Victoria, British Columbia.