Health Care for Women International
ISSN: 0739-9332 (Print) 1096-4665 (Online) Journal homepage: http://www.tandfonline.com/loi/uhcw20
Evolving issues in surrogate motherhood Judith A. Erlen PhD, RN & Ian R. Holzman MD To cite this article: Judith A. Erlen PhD, RN & Ian R. Holzman MD (1990) Evolving issues in surrogate motherhood, Health Care for Women International, 11:3, 319-329, DOI: 10.1080/07399339009515901 To link to this article: http://dx.doi.org/10.1080/07399339009515901
Published online: 14 Aug 2009.
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Date: 14 November 2015, At: 02:25
EVOLVING ISSUES IN SURROGATE MOTHERHOOD Judith A. Erlen, PhD, RN School of Nursing University of Pittsburgh, Pittsburgh, Pennsylvania
Ian R. Holzman, MD
Downloaded by [Universite Laval] at 02:25 14 November 2015
Mt. Sinai School of Medicine New York, New York
Surrogate mothering is an arrangement whereby a woman who gives birth to an infant intends—through a contractual agreement— to give that baby to another couple. The recent Baby M case in the United States has raised numerous legal concerns causing many legislative bodies to consider possible statutes to regulate or prohibit surrogacy. The competing interests among and between the individuals involved in this relationship (i.e., the surrogate mother, the couple, the baby, and society) suggest various ethical issues related to benefits, risks, and autonomy. Legal and ethical concerns surrounding the technologically possible procedure of surrogate motherhood are discussed.
Few issues have generated as much public interest and discussion as the fate of the child, Baby M, born to a surrogate mother, Mary Beth Whitehead, in the United States in 1986. Baby M did not make medical history by her birth nor did her birth lead to the first litigation concerning surrogate motherhood. The resolution in the New Jersey courts of the question of who had legal custody of Baby M, however, created a heightened awareness of the legal and ethical issues in surrogate motherhood. Since this case there has been an increased flurry of activity by state legislatures and task forces to develop legislation that will provide
The authors acknowledge Kenneth Schaffner, MD, PhD, University of Pittsburgh, and Paul Lauritzen, PhD, John Carroll University, for their insightful comments and suggestions on an earlier version of this manuscript. Health Care for Women International 11:319-329, 1990 Copyright © 1990 by Hemisphere Publishing Corporation
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clear direction on this issue. The questions raised by surrogate motherhood remain unsettled. Resolution will require careful public debate about the private issues of reproduction and thoughtful legislative action to ensure that the interests of all parties and the public are best served. During these debates these parties must realize that a child is involved and that any decision will influence the child's life. The decisions will have implications for those couples desiring to have children and considering surrogacy as a possible means, the women who choose to be surrogates, and the children who are conceived. In this article we discuss the evolving legal and ethical issues surrounding the technologically possible procedure of surrogate motherhood. LEGAL ISSUES Any discussion of the legal issues involved in surrogate motherhood must address the complexity and ambiguity of this use of reproductive technology. The distinguishing characteristic of surrogate motherhood is that a woman who gives birth to a child intends—through a prior contractual arrangement—to give the child to another couple who has some genetic link to that infant. Dickens (1984) summarized the possible mechanisms by which surrogacy may occur as follows: 1. a woman is artificially inseminated in vivo by the sperm of a man and, on birth, the custody of her child is surrendered to the man's family; 2. a woman's extracted ovum is fertilized in vitro, the fertilized ovum is transplanted into the uterus of another woman who is able to bear a child, and on birth the child is surrendered to the woman whose ovum is fertilized; 3. a woman is fertilized in vivo, the fertilized ovum is flushed from her and transplanted into the uterus of another woman who is able to bear a child, and on birth the child is surrendered to the woman whose ovum is fertilized; 4. a woman's ovum is fertilized, either in vitro or in vivo, followed by recovery through flushing, and is transplanted into the uterus of a second woman; on birth, the child is surrendered to a third person, such as the wife of the man whose sperm are used for fertilization, (p. 184) The overriding legal issue, regardless of which surrogate possibility is being discussed, is whether or not it is legal in any given jurisdiction to enter into a contract involving any type of surrogate motherhood. Does state interference with such arrangements constitute an infringement on one's often reaffirmed rights to reproductive privacy? Is there
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any violation of existing laws on adoption, fetal research, trafficking in human beings, or medical practice acts? The Baby M case has spawned much legislative activity. Numerous states have proposed or passed legislation that deals specifically or tangentially with the issues of surrogate motherhood (Andrews, 1987). In general, there have been two approaches by lawmakers: (a) a prohibitory approach or outright ban of any contract or agreement in which a woman agrees to conceive a child through artificial insemination and then voluntarily relinquishes her rights to the child by consent, or (b) a regulatory approach or codification of the ingredients in a surrogate contract (Andrews, 1987; Cohen, 1984). Although states may pass laws, the courts determine the legality of these laws through lower court decisions and appeals via the state and federal judicial system. The Kentucky Supreme Court, for example, ruled that there was nothing in that state's laws that prohibited surrogate parent agreements (Cohen, 1984). Kentucky, however, is considering a bill banning paid surrogacy (Andrews, 1987). A lower court in New Jersey held that the surrogate parenting agreement in the Baby M case was a valid and enforceable contract; however, the New Jersey Supreme Court invalidated the surrogate contract and used existing law regarding out-of-wedlock births to determine custody of the child (Annas, 1988). Yet the child was not awarded to the natural mother but instead to the natural father and his wife because of what the court deemed to be the child's best interests. As appeals occur and new laws are passed, society can expect to see rapid changes in this area. When legislatures approach these thorny issues, crystal-clear definitions become mandatory. It is easy to see the commonalities between surrogacy and the generally acceptable practices such as uncomplicated adoption, artificial insemination by an unrelated male donor in a traditional marriage setting with the child remaining with the gestating mother and her husband, and the new in vitro fertilization programs where the ovum is fertilized in vitro and replaced in the uterus of the genetic mother. To understand the nuances of surrogacy, it is necessary to specify whose sperm and egg have been used to create the child and whether there are any implied legal rights. In at least some of the possible surrogate arrangements the sperm donor appropriately may be considered the genetic and legal father of the child. Since it is also possible for a woman to donate anonymously an ovum that can be fertilized in vitro and placed in another woman's uterus, it becomes crucial that any law or contract clearly spell out the differences between genetic and social parenthood. Another way to think about this issue is to decide exactly what is being donated—a gamete, an embryo, or the use of one's uterus—and what possession means for each of those (Page, 1986). In
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other words, it is important to understand the biological issues involved in the donation process of surrogate motherhood and whether or not the donation of genetic material by any of the parties implies any legal rights. Legally there is a need to clarify the role of adoption in the surrogate mother arrangement since there are already laws in most jurisdictions that restrict the freedom to "trade" in babies (Mady, 1981). The requirement for involvement of licensed private agencies or state agencies is also specified in most states. Exactly where the surrogate process fits within these existing statutes is unclear. Does the genetic father's relationship to the child preclude the necessity for adoption? What happens if an anonymous sperm donor supplies genetic material for the child? These questions suggest that there may be a need for clarification of the law concerning adoption and the legitimacy of the child of a surrogate mother. Current law is also unclear about the status of the child of the surrogate mother. "The artificial insemination cases and the statutes apparently did not contemplate the surrogate mother arrangement and, therefore, arguably do not apply" (Mady, 1981, p. 343). Additionally, there is the question of whether or not the surrogate mother retains her right to change her mind about giving up the child to the other couple after birth. Several states are considering legislation that would give the surrogate time to change her mind (Andrews, 1987). At present, adoption proceedings in many states note that even though a prospective mother intends to place her child for adoption, this action is not final until after the baby is born and the mother has had time to change her mind. If similar practices occur in a surrogate relationship, what protection is there for the couple who entered into the contract in good faith expecting a child? What if the surrogate now decides to keep the baby? A further clarification is also required concerning the issue of money and the legal implications if payment is for the woman's service or for the child. The latter may suggest baby selling and treating the child as a commodity. Many jurisdictions prohibit profiteering from adoptions (Annas, 1988). Therefore, laws must clearly separate surrogate proceedings from any adoption if a financial arrangement between the couple and the surrogate mother implies more than simple cost for the woman's service (Mady, 1981). To make certain that there is no suggestion that baby selling is occurring, the New York State Task Force on Life and the Law recently recommended that New York consider a prohibition of fees to surrogate mothers (Miller, 1988). The legal roles, privileges, and duties of physicians and lawyers must also be addressed (Healey, 1984). The technology suggests that this is an area of medicine and science, yet in actual practice surrogacy
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has become a service provided by lawyers (Annas, 1986; "Surrogate ban," 1988). Lawyers have arranged through contracts whose ovum will be fertilized by whose sperm. While the physician remains ethically and legally responsible for the proper performance of the medical procedures, it is less clear where responsibility is to be placed for errors in counseling (e.g., the transmission of genetic diseases to the offspring) or illnesses in the surrogate mother. The American College of Obstetricians and Gynecologists (1983) has gone as far as to issue a policy statement, Ethical issues in surrogate motherhood, because of their concern with these problems. Equally pressing are the needs to codify the relationship the lawyer may have with the various parties in the process and to determine who is responsible for the legal interests of the child. There is a long history of social and philosophical disagreement about the proper policy concerning parental identification in adoptions. As the ability to detect, predict, and treat genetic diseases increases, parental identification will become an issue of greater importance. Surrogacy only magnifies the myriad problems because of the increased number of potential parties. The risk of the transmission of viral diseases incorporated within cells or genetic material is also of concern. Therefore any law that tries to incorporate the surrogacy process into statute will have to address identification and record keeping (Andrews, 1987; Elias & Annas, 1986). It is not possible to be exhaustive in reviewing all of the possible legal issues that can and have been mentioned. Concerns about freezing embryos and their eventual fate are a part of surrogacy as well as in vitro fertilization and are as much an ethical dilemma as a legal concern. Additionally, is there a need for laws about parental (genetic and social) age and social status? Is it necessary to have mandatory paternity (maternity) testing as part of the procedure? Will the whole process function better if the courts are involved on a routine basis? Is there a need for federal legislation as well as state legislation to regulate surrogate motherhood? What mechanisms are available when one of the parties (including the surrogate mother) dies before the birth of the child? Are penalties necessary for failure to adhere to part or all of the contractual agreements? Answers to each of the above questions are not easy to develop. The legal system is often not capable of formulating laws that take into account all of the possible outcomes and permutations. While this is not surprising, a consideration of the consequences of the surrogate arrangement does provide the impetus to proceed slowly and carefully because in the final analysis it is the child who has the most to lose. Conse-
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quently, the commercialization and statutory acceptance of the surrogate mother concept must never come before the best interests of the child.
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ETHICAL ISSUES Besides the need for a clear identification of the legal questions related to surrogate motherhood, there is a need to define clearly the ethical issues. Initially the result of having a child that increases or has the potential to increase a couple's sense of well-being seems to be desirable. Yet, is this end desirable? Do the couple's or child's rights and interests take precedence or do the rights and interests of all need to be considered? Is it right in cases where the couple is not infertile to use surrogate mothering as a way to have a child without the social mother having to interrupt her lifestyle to become pregnant? Does society have a right to interfere with one's reproductive decision making? What are the rights of the surrogate mother? Is it right to create a family at the expense of another? Because of the complexity of the biological issues in surrogate motherhood, it is necessary when exploring the ethical concerns to focus on one or another of the standard mechanisms that were described earlier by which surrogacy can occur. In this discussion it is assumed that a woman has been artificially inseminated in vivo by the sperm of a man who takes custody of the child after birth. Regardless of the actual mechanics involved, the ethical issues raised in this discussion are generally applicable. In Roe v. Wade (1973) the United States Supreme Court argued that a woman's decision to have an abortion was based on the right to personal privacy as identified in the United States Constitution. The assertion of this right has enabled a woman to have control over her body. Is it possible to use a similar argument when considering the issue of surrogacy? If a woman is adequately informed and counseled about her responsibilities as a surrogate mother, there seems to be no reason why she cannot use her body and her womb to help another. She has made a private decision to be a surrogate; she " . . . agrees to be artificially inseminated with the sperm of the husband of the infertile woman" (Annas, 1981, p. 23). The surrogate mother makes a deliberate and informed choice to participate in such an arrangement and, at first glance, does not seem to be exploited or coerced to be a surrogate. If a woman freely chooses to be a surrogate mother, does society have any right to interfere with that decision? Is not this decision to be a surrogate a private one, just as the decision to have an abortion is a private one? Or is it that society has both an interest in and responsibility to its children to the extent that it can regulate or even prohibit this practice? "For some women, pregnancy and childbirth is not only a positive
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experience but is also a creative act" (Winslade, 1981, p. 154). Some women have an increased sense of well-being when they are pregnant. They enjoy being pregnant and like the additional attention that they receive. This may be the time when they feel most like women. Therefore this experience benefits the surrogate because she is able to fulfill her own desire to be pregnant. The surrogate may also benefit because she feels she is helping others; she is able to assist a couple to have a child who is genetically related to one of the social parents. The importance of such altruistic motives cannot be underestimated. Yet, on the other hand, altruism may not be the only motive for the surrogate if there is some payment for the woman's services. The possibility exists that the money serves as an inducement for the woman to become a surrogate. She is being paid for services rendered. The surrogate mother may be seen as instrumental in enabling the social parents to achieve their desired goal of having a child and as achieving her own financial goals, particularly if she is poor (McCormick, 1987; Robertson, 1983). This instrumental purpose can be further questioned because having children with the intention of giving them up is not the usual motivation for becoming pregnant. If this is the intent, then potentially women will be seen as "baby making machines" (Krimmel, 1983). Furthermore, when the surrogate mother's ability to conceive and bear a child is seen as being primary, then the importance of her personhood may be reduced or neglected and she may feel harmed. "Surrogate mothering is not just 'the use of an organ.' In such parenting the uterus must be viewed as an integral part of the total procreative event . . ." (McCormick, 1987, p. 128). The surrogate mother may also be harmed if a health problem occurs during the pregnancy. While the woman may not have experienced any difficulties with previous pregnancies, that may not be the case during this pregnancy, although proper medical management and self-care may reduce the risk of physical harm. While her other deliveries may have been vaginal deliveries, this one may be a cesarean section delivery. In addition, the surrogate mother may have to undergo genetic testing and amniocentesis, procedures that can possibly harm both mother and fetus. Likewise, the potential for harm exists when the surrogate mother gives the baby to the social parents (Robertson, 1983). Usually when a woman becomes pregnant, she intends to raise the child instead of giving the child to someone else to raise. Surrogacy is different. Throughout her pregnancy the surrogate may have tried to avoid becoming attached to the baby because of the agreement she made to relinquish the baby at birth. Once the baby is born, her job ends. However, breaking that psychological bond may not be as easy as it seemed when the contract was developed and may now leave a permanent scar because of the
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loss that occurs. In addition, the surrogate's family may have developed an attachment to the fetus during the pregnancy. They too may now feel the loss. The children in the family may even wonder how their mother can give the baby away, and may wonder if their mother had ever considered giving them to someone else. Couples who for reasons of infertility or other personal reasons consider the possibility of contracting with a surrogate mother do so with the intent of having a child who is genetically related to at least one of the parents. Surrogacy for them becomes an alternative to the traditional adoption process. This choice to use a surrogate mother is a personal decision requiring that the couple consider their personal values and have adequate information not only about the procedure and its risks and benefits, the contractual arrangement, and the legal implications, but also about other options that may enable them to have the desired child. As an alternative to adoption, however, surrogacy does not have wide acceptance in society because there are those persons who, based on religious or philosophical beliefs (Krimmel, 1983), view surrogacy as unnatural and unethical. While the couple may view their choice to use a surrogate as a private decision, the effect that their decision may have on various persons in society and on societal values cannot be dismissed. The surrogate motherhood arrangement can have a positive effect on the social parents. The couple does not have to go through the process of trying to adopt a child through an agency and at least one of the parents is biologically related to the child. Yet the couple may have desired a child who is biologically related to both of them. As a result, an asymmetrical relationship may develop within the family. If the social mother is not biologically linked to the child, she may shift responsibility for childrearing to the father. The possibility exists that the child may become a pawn used by the parents if disagreements arise about childrearing practices (Krimmel, 1983). While the couple may have wanted a child, they may not have fully realized all the responsibilities of parenting prior to the child's arrival. They may not have realized that one partner may now have a stronger bond with the child than the other partner. The problems that may arise may not be unlike those that may occur whenever there is a second marriage and the children of one partner are adopted by the other (Krimmel, 1983). Consideration needs to be given also to the possibility that the child has been created as a means to another's goal, in this case the happiness of the social parents. The instrumental value of the child has become important. "The child is conceived not because he is wanted by his biological mother, but because he can be useful to someone else" (Krimmel, 1983, p. 35). The child is valued because of his or her utility and not as an end or as a person in himself or herself. Instead the child is
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considered in relation to the amount of benefit he or she can bring to others. The process of the child's birth has been manipulated and, in a sense, the child has been manipulated. This potential devaluation of the child as a person can have far-reaching effects for society because others may also be devalued and used by those persons who are in positions of control. Another potential problem may occur if the child is born with a defect. Parents, not infrequently, have fantasies about what the baby will be like and the same is probably true of the couple who has a contractual arrangement with a surrogate. If the newborn is not perfect, will the surrogate be blamed for not caring for herself during the pregnancy? Will the couple's marriage be affected if the wife blames the husband (the biological father) for contributing defective genetic material when die child was conceived? Will the parents decide that they do not want the less than perfect child? Is this child now avoided? If a less than perfect child is born, who will then care for the child— the surrogate, the parents, or society? In the surrogate relationship, no one might want to be responsible for the child who is not perfect. Krimmel (1983) notes that when natural parents have a child with a defect, they are likely to accept the child even though there is a problem. Yet, in the surrogate relationship when there is a malformed child, the parents may be reluctant to care for the child whom they now see as being a burden to them. When the parents entered into the contract, they did not bargain for this outcome. As the child develops, a problem that the social parents will have to face is what to tell the child about his or her birth. Sooner or later the child will ask questions about where he or she was born or where he or she came from. Adoptive parents are frequently advised to give a child information about his or her birth that is appropriate for the child's level of development. Concealing information from the child has the potential to harm the child. Additionally, if the child does learn about her or his background from someone other than the parents, the child may begin to wonder what other information has been withheld. This may result in a lack of trust in the family, and relationships within the family may disintegrate. Yet, does telling a child about his or her birth mean that the child should be told who her or his natural mother is? At present, adopted children often search for their biological mothers. This process can create considerable pain for all persons involved. In the case of a surrogate mother, the social parents may or may not know who the woman is who gave birth to their child. To tell the child of his or her parentage may result in a breach of confidentiality if the surrogate mother does not want her identity known. Yet, to not know one's genealogy may be
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psychologically damaging to a person (McCormick, 1987). There is also the concern about future incestuous relationships that may arise if these children of surrogate relationships marry a half-brother or half-sister. Finally, an ethical question facing society is, if surrogate motherhood is a realistic option for couples, must it be available to all members of society? Childlessness is a problem for both the rich and the poor. At present, the option to use this reproductive technology is only available to those who can afford it because paying the medical expenses of the surrogate is generally part of the agreement. This arrangement is not necessarily unfair or discriminatory because there are other ways to adopt a child. To be fair, one can argue, individuals need to have the opportunity to adopt; they do not have to have the same available options or means by which to adopt a child. CONCLUSIONS In this article we have demonstrated that there is a need for careful delineation and explication of both the legal and ethical issues related to surrogate motherhood. The Baby M case has vividly pointed to the complexity of those issues with a consequence that many states are at present considering legislation to regulate surrogacy. When decisions about the surrogate relationship are made, not only must the interests of all parties who entered the contract and of society be served, but also the outcome that is in the best interest of the child must be considered. Although the technology for reproduction by means of a surrogate relationship is available, the questions raised by the use of this technology remain unsettled.
REFERENCES American College of Obstetricians and Gynecologists. (1983). Ethical issues in surrogate motherhood. Washington, DC: Author. Andrews, L. B. (1987). The aftermath of Baby M: Proposed state laws on surrogate motherhood. Hastings Center Report, 77(5), 31-40. Annas, G. J. (1981). Contracts to bear a child: Compassion or commercialism? Hastings Center Report, 11(2), 23-24. Annas, G. J. (1986). The baby broker boom. Hastings Center Report, 16(3), 30-31. Annas, G. J. (1988). Death without dignity for commercial surrogacy: The case of Baby M. Hastings Center Report, 18(2), 21-24. Cohen, B. (1984). Surrogate mothers: Whose baby is it? American Journal of Law & Medicine, 10, 243-285. Dickens, B. M. (1984). Surrogate motherhood, legal and legislative issues. In A. Milunsky & G. J. Annas (Eds.), Genetics and the law III (pp. 183-214). Boston: Plenum.
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Elias, S., & Annas, G. J. (1986). Social policy considerations in noncoital reproduction. Journal of the American Medical Association, 255, 62-68. Healy, J. M. (1984). Legal regulation of artificial insemination and the new reproductive techniques—the search for clarification continues. In A. Milunsky & G. J. Annas (Eds.), Genetics and the law III (pp. 139-145). Boston: Plenum. Krimmel, H. T. (1983). The case against surrogate parenting. Hastings Center Report, 15(5), 35-39. Mady, T. M. (1981). Surrogate mothers: The legal issues. American Journal of Law and Medicine, 7, 323-352. McCormick, R. A. (1987). Surrogate motherhood: A stillborn idea. Second Opinion, 5, 128-132. Miller, T. E. (1988). A resounding no to commercial surrogacy. Hastings Center Report, 78(4), 4. Page, E. (1986). Review article: Warnock and surrogacy. Journal of Medical Ethics, 12, 45-52. Roe v. Wade, 410 U.S. 113 (1973). Surrogate ban OK'd in Michigan. (1988, June 28). The Pittsburgh Press, p. A5. Robertson, J. A. (1983). Surrogate mothers: Not so novel after all. Hastings Center Report, 75(5), 28-34. Winslade, W. J. (1981). Surrogate mothers: Private right or public wrong. Journal of Medical Ethics, 7, 153-154.
ISSN: 0739-9332 (Print) 1096-4665 (Online) Journal homepage: http://www.tandfonline.com/loi/uhcw20
Evolving issues in surrogate motherhood Judith A. Erlen PhD, RN & Ian R. Holzman MD To cite this article: Judith A. Erlen PhD, RN & Ian R. Holzman MD (1990) Evolving issues in surrogate motherhood, Health Care for Women International, 11:3, 319-329, DOI: 10.1080/07399339009515901 To link to this article: http://dx.doi.org/10.1080/07399339009515901
Published online: 14 Aug 2009.
Submit your article to this journal
Article views: 41
View related articles
Citing articles: 3 View citing articles
Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=uhcw20 Download by: [Universite Laval]
Date: 14 November 2015, At: 02:25
EVOLVING ISSUES IN SURROGATE MOTHERHOOD Judith A. Erlen, PhD, RN School of Nursing University of Pittsburgh, Pittsburgh, Pennsylvania
Ian R. Holzman, MD
Downloaded by [Universite Laval] at 02:25 14 November 2015
Mt. Sinai School of Medicine New York, New York
Surrogate mothering is an arrangement whereby a woman who gives birth to an infant intends—through a contractual agreement— to give that baby to another couple. The recent Baby M case in the United States has raised numerous legal concerns causing many legislative bodies to consider possible statutes to regulate or prohibit surrogacy. The competing interests among and between the individuals involved in this relationship (i.e., the surrogate mother, the couple, the baby, and society) suggest various ethical issues related to benefits, risks, and autonomy. Legal and ethical concerns surrounding the technologically possible procedure of surrogate motherhood are discussed.
Few issues have generated as much public interest and discussion as the fate of the child, Baby M, born to a surrogate mother, Mary Beth Whitehead, in the United States in 1986. Baby M did not make medical history by her birth nor did her birth lead to the first litigation concerning surrogate motherhood. The resolution in the New Jersey courts of the question of who had legal custody of Baby M, however, created a heightened awareness of the legal and ethical issues in surrogate motherhood. Since this case there has been an increased flurry of activity by state legislatures and task forces to develop legislation that will provide
The authors acknowledge Kenneth Schaffner, MD, PhD, University of Pittsburgh, and Paul Lauritzen, PhD, John Carroll University, for their insightful comments and suggestions on an earlier version of this manuscript. Health Care for Women International 11:319-329, 1990 Copyright © 1990 by Hemisphere Publishing Corporation
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clear direction on this issue. The questions raised by surrogate motherhood remain unsettled. Resolution will require careful public debate about the private issues of reproduction and thoughtful legislative action to ensure that the interests of all parties and the public are best served. During these debates these parties must realize that a child is involved and that any decision will influence the child's life. The decisions will have implications for those couples desiring to have children and considering surrogacy as a possible means, the women who choose to be surrogates, and the children who are conceived. In this article we discuss the evolving legal and ethical issues surrounding the technologically possible procedure of surrogate motherhood. LEGAL ISSUES Any discussion of the legal issues involved in surrogate motherhood must address the complexity and ambiguity of this use of reproductive technology. The distinguishing characteristic of surrogate motherhood is that a woman who gives birth to a child intends—through a prior contractual arrangement—to give the child to another couple who has some genetic link to that infant. Dickens (1984) summarized the possible mechanisms by which surrogacy may occur as follows: 1. a woman is artificially inseminated in vivo by the sperm of a man and, on birth, the custody of her child is surrendered to the man's family; 2. a woman's extracted ovum is fertilized in vitro, the fertilized ovum is transplanted into the uterus of another woman who is able to bear a child, and on birth the child is surrendered to the woman whose ovum is fertilized; 3. a woman is fertilized in vivo, the fertilized ovum is flushed from her and transplanted into the uterus of another woman who is able to bear a child, and on birth the child is surrendered to the woman whose ovum is fertilized; 4. a woman's ovum is fertilized, either in vitro or in vivo, followed by recovery through flushing, and is transplanted into the uterus of a second woman; on birth, the child is surrendered to a third person, such as the wife of the man whose sperm are used for fertilization, (p. 184) The overriding legal issue, regardless of which surrogate possibility is being discussed, is whether or not it is legal in any given jurisdiction to enter into a contract involving any type of surrogate motherhood. Does state interference with such arrangements constitute an infringement on one's often reaffirmed rights to reproductive privacy? Is there
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any violation of existing laws on adoption, fetal research, trafficking in human beings, or medical practice acts? The Baby M case has spawned much legislative activity. Numerous states have proposed or passed legislation that deals specifically or tangentially with the issues of surrogate motherhood (Andrews, 1987). In general, there have been two approaches by lawmakers: (a) a prohibitory approach or outright ban of any contract or agreement in which a woman agrees to conceive a child through artificial insemination and then voluntarily relinquishes her rights to the child by consent, or (b) a regulatory approach or codification of the ingredients in a surrogate contract (Andrews, 1987; Cohen, 1984). Although states may pass laws, the courts determine the legality of these laws through lower court decisions and appeals via the state and federal judicial system. The Kentucky Supreme Court, for example, ruled that there was nothing in that state's laws that prohibited surrogate parent agreements (Cohen, 1984). Kentucky, however, is considering a bill banning paid surrogacy (Andrews, 1987). A lower court in New Jersey held that the surrogate parenting agreement in the Baby M case was a valid and enforceable contract; however, the New Jersey Supreme Court invalidated the surrogate contract and used existing law regarding out-of-wedlock births to determine custody of the child (Annas, 1988). Yet the child was not awarded to the natural mother but instead to the natural father and his wife because of what the court deemed to be the child's best interests. As appeals occur and new laws are passed, society can expect to see rapid changes in this area. When legislatures approach these thorny issues, crystal-clear definitions become mandatory. It is easy to see the commonalities between surrogacy and the generally acceptable practices such as uncomplicated adoption, artificial insemination by an unrelated male donor in a traditional marriage setting with the child remaining with the gestating mother and her husband, and the new in vitro fertilization programs where the ovum is fertilized in vitro and replaced in the uterus of the genetic mother. To understand the nuances of surrogacy, it is necessary to specify whose sperm and egg have been used to create the child and whether there are any implied legal rights. In at least some of the possible surrogate arrangements the sperm donor appropriately may be considered the genetic and legal father of the child. Since it is also possible for a woman to donate anonymously an ovum that can be fertilized in vitro and placed in another woman's uterus, it becomes crucial that any law or contract clearly spell out the differences between genetic and social parenthood. Another way to think about this issue is to decide exactly what is being donated—a gamete, an embryo, or the use of one's uterus—and what possession means for each of those (Page, 1986). In
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other words, it is important to understand the biological issues involved in the donation process of surrogate motherhood and whether or not the donation of genetic material by any of the parties implies any legal rights. Legally there is a need to clarify the role of adoption in the surrogate mother arrangement since there are already laws in most jurisdictions that restrict the freedom to "trade" in babies (Mady, 1981). The requirement for involvement of licensed private agencies or state agencies is also specified in most states. Exactly where the surrogate process fits within these existing statutes is unclear. Does the genetic father's relationship to the child preclude the necessity for adoption? What happens if an anonymous sperm donor supplies genetic material for the child? These questions suggest that there may be a need for clarification of the law concerning adoption and the legitimacy of the child of a surrogate mother. Current law is also unclear about the status of the child of the surrogate mother. "The artificial insemination cases and the statutes apparently did not contemplate the surrogate mother arrangement and, therefore, arguably do not apply" (Mady, 1981, p. 343). Additionally, there is the question of whether or not the surrogate mother retains her right to change her mind about giving up the child to the other couple after birth. Several states are considering legislation that would give the surrogate time to change her mind (Andrews, 1987). At present, adoption proceedings in many states note that even though a prospective mother intends to place her child for adoption, this action is not final until after the baby is born and the mother has had time to change her mind. If similar practices occur in a surrogate relationship, what protection is there for the couple who entered into the contract in good faith expecting a child? What if the surrogate now decides to keep the baby? A further clarification is also required concerning the issue of money and the legal implications if payment is for the woman's service or for the child. The latter may suggest baby selling and treating the child as a commodity. Many jurisdictions prohibit profiteering from adoptions (Annas, 1988). Therefore, laws must clearly separate surrogate proceedings from any adoption if a financial arrangement between the couple and the surrogate mother implies more than simple cost for the woman's service (Mady, 1981). To make certain that there is no suggestion that baby selling is occurring, the New York State Task Force on Life and the Law recently recommended that New York consider a prohibition of fees to surrogate mothers (Miller, 1988). The legal roles, privileges, and duties of physicians and lawyers must also be addressed (Healey, 1984). The technology suggests that this is an area of medicine and science, yet in actual practice surrogacy
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has become a service provided by lawyers (Annas, 1986; "Surrogate ban," 1988). Lawyers have arranged through contracts whose ovum will be fertilized by whose sperm. While the physician remains ethically and legally responsible for the proper performance of the medical procedures, it is less clear where responsibility is to be placed for errors in counseling (e.g., the transmission of genetic diseases to the offspring) or illnesses in the surrogate mother. The American College of Obstetricians and Gynecologists (1983) has gone as far as to issue a policy statement, Ethical issues in surrogate motherhood, because of their concern with these problems. Equally pressing are the needs to codify the relationship the lawyer may have with the various parties in the process and to determine who is responsible for the legal interests of the child. There is a long history of social and philosophical disagreement about the proper policy concerning parental identification in adoptions. As the ability to detect, predict, and treat genetic diseases increases, parental identification will become an issue of greater importance. Surrogacy only magnifies the myriad problems because of the increased number of potential parties. The risk of the transmission of viral diseases incorporated within cells or genetic material is also of concern. Therefore any law that tries to incorporate the surrogacy process into statute will have to address identification and record keeping (Andrews, 1987; Elias & Annas, 1986). It is not possible to be exhaustive in reviewing all of the possible legal issues that can and have been mentioned. Concerns about freezing embryos and their eventual fate are a part of surrogacy as well as in vitro fertilization and are as much an ethical dilemma as a legal concern. Additionally, is there a need for laws about parental (genetic and social) age and social status? Is it necessary to have mandatory paternity (maternity) testing as part of the procedure? Will the whole process function better if the courts are involved on a routine basis? Is there a need for federal legislation as well as state legislation to regulate surrogate motherhood? What mechanisms are available when one of the parties (including the surrogate mother) dies before the birth of the child? Are penalties necessary for failure to adhere to part or all of the contractual agreements? Answers to each of the above questions are not easy to develop. The legal system is often not capable of formulating laws that take into account all of the possible outcomes and permutations. While this is not surprising, a consideration of the consequences of the surrogate arrangement does provide the impetus to proceed slowly and carefully because in the final analysis it is the child who has the most to lose. Conse-
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quently, the commercialization and statutory acceptance of the surrogate mother concept must never come before the best interests of the child.
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ETHICAL ISSUES Besides the need for a clear identification of the legal questions related to surrogate motherhood, there is a need to define clearly the ethical issues. Initially the result of having a child that increases or has the potential to increase a couple's sense of well-being seems to be desirable. Yet, is this end desirable? Do the couple's or child's rights and interests take precedence or do the rights and interests of all need to be considered? Is it right in cases where the couple is not infertile to use surrogate mothering as a way to have a child without the social mother having to interrupt her lifestyle to become pregnant? Does society have a right to interfere with one's reproductive decision making? What are the rights of the surrogate mother? Is it right to create a family at the expense of another? Because of the complexity of the biological issues in surrogate motherhood, it is necessary when exploring the ethical concerns to focus on one or another of the standard mechanisms that were described earlier by which surrogacy can occur. In this discussion it is assumed that a woman has been artificially inseminated in vivo by the sperm of a man who takes custody of the child after birth. Regardless of the actual mechanics involved, the ethical issues raised in this discussion are generally applicable. In Roe v. Wade (1973) the United States Supreme Court argued that a woman's decision to have an abortion was based on the right to personal privacy as identified in the United States Constitution. The assertion of this right has enabled a woman to have control over her body. Is it possible to use a similar argument when considering the issue of surrogacy? If a woman is adequately informed and counseled about her responsibilities as a surrogate mother, there seems to be no reason why she cannot use her body and her womb to help another. She has made a private decision to be a surrogate; she " . . . agrees to be artificially inseminated with the sperm of the husband of the infertile woman" (Annas, 1981, p. 23). The surrogate mother makes a deliberate and informed choice to participate in such an arrangement and, at first glance, does not seem to be exploited or coerced to be a surrogate. If a woman freely chooses to be a surrogate mother, does society have any right to interfere with that decision? Is not this decision to be a surrogate a private one, just as the decision to have an abortion is a private one? Or is it that society has both an interest in and responsibility to its children to the extent that it can regulate or even prohibit this practice? "For some women, pregnancy and childbirth is not only a positive
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experience but is also a creative act" (Winslade, 1981, p. 154). Some women have an increased sense of well-being when they are pregnant. They enjoy being pregnant and like the additional attention that they receive. This may be the time when they feel most like women. Therefore this experience benefits the surrogate because she is able to fulfill her own desire to be pregnant. The surrogate may also benefit because she feels she is helping others; she is able to assist a couple to have a child who is genetically related to one of the social parents. The importance of such altruistic motives cannot be underestimated. Yet, on the other hand, altruism may not be the only motive for the surrogate if there is some payment for the woman's services. The possibility exists that the money serves as an inducement for the woman to become a surrogate. She is being paid for services rendered. The surrogate mother may be seen as instrumental in enabling the social parents to achieve their desired goal of having a child and as achieving her own financial goals, particularly if she is poor (McCormick, 1987; Robertson, 1983). This instrumental purpose can be further questioned because having children with the intention of giving them up is not the usual motivation for becoming pregnant. If this is the intent, then potentially women will be seen as "baby making machines" (Krimmel, 1983). Furthermore, when the surrogate mother's ability to conceive and bear a child is seen as being primary, then the importance of her personhood may be reduced or neglected and she may feel harmed. "Surrogate mothering is not just 'the use of an organ.' In such parenting the uterus must be viewed as an integral part of the total procreative event . . ." (McCormick, 1987, p. 128). The surrogate mother may also be harmed if a health problem occurs during the pregnancy. While the woman may not have experienced any difficulties with previous pregnancies, that may not be the case during this pregnancy, although proper medical management and self-care may reduce the risk of physical harm. While her other deliveries may have been vaginal deliveries, this one may be a cesarean section delivery. In addition, the surrogate mother may have to undergo genetic testing and amniocentesis, procedures that can possibly harm both mother and fetus. Likewise, the potential for harm exists when the surrogate mother gives the baby to the social parents (Robertson, 1983). Usually when a woman becomes pregnant, she intends to raise the child instead of giving the child to someone else to raise. Surrogacy is different. Throughout her pregnancy the surrogate may have tried to avoid becoming attached to the baby because of the agreement she made to relinquish the baby at birth. Once the baby is born, her job ends. However, breaking that psychological bond may not be as easy as it seemed when the contract was developed and may now leave a permanent scar because of the
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loss that occurs. In addition, the surrogate's family may have developed an attachment to the fetus during the pregnancy. They too may now feel the loss. The children in the family may even wonder how their mother can give the baby away, and may wonder if their mother had ever considered giving them to someone else. Couples who for reasons of infertility or other personal reasons consider the possibility of contracting with a surrogate mother do so with the intent of having a child who is genetically related to at least one of the parents. Surrogacy for them becomes an alternative to the traditional adoption process. This choice to use a surrogate mother is a personal decision requiring that the couple consider their personal values and have adequate information not only about the procedure and its risks and benefits, the contractual arrangement, and the legal implications, but also about other options that may enable them to have the desired child. As an alternative to adoption, however, surrogacy does not have wide acceptance in society because there are those persons who, based on religious or philosophical beliefs (Krimmel, 1983), view surrogacy as unnatural and unethical. While the couple may view their choice to use a surrogate as a private decision, the effect that their decision may have on various persons in society and on societal values cannot be dismissed. The surrogate motherhood arrangement can have a positive effect on the social parents. The couple does not have to go through the process of trying to adopt a child through an agency and at least one of the parents is biologically related to the child. Yet the couple may have desired a child who is biologically related to both of them. As a result, an asymmetrical relationship may develop within the family. If the social mother is not biologically linked to the child, she may shift responsibility for childrearing to the father. The possibility exists that the child may become a pawn used by the parents if disagreements arise about childrearing practices (Krimmel, 1983). While the couple may have wanted a child, they may not have fully realized all the responsibilities of parenting prior to the child's arrival. They may not have realized that one partner may now have a stronger bond with the child than the other partner. The problems that may arise may not be unlike those that may occur whenever there is a second marriage and the children of one partner are adopted by the other (Krimmel, 1983). Consideration needs to be given also to the possibility that the child has been created as a means to another's goal, in this case the happiness of the social parents. The instrumental value of the child has become important. "The child is conceived not because he is wanted by his biological mother, but because he can be useful to someone else" (Krimmel, 1983, p. 35). The child is valued because of his or her utility and not as an end or as a person in himself or herself. Instead the child is
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considered in relation to the amount of benefit he or she can bring to others. The process of the child's birth has been manipulated and, in a sense, the child has been manipulated. This potential devaluation of the child as a person can have far-reaching effects for society because others may also be devalued and used by those persons who are in positions of control. Another potential problem may occur if the child is born with a defect. Parents, not infrequently, have fantasies about what the baby will be like and the same is probably true of the couple who has a contractual arrangement with a surrogate. If the newborn is not perfect, will the surrogate be blamed for not caring for herself during the pregnancy? Will the couple's marriage be affected if the wife blames the husband (the biological father) for contributing defective genetic material when die child was conceived? Will the parents decide that they do not want the less than perfect child? Is this child now avoided? If a less than perfect child is born, who will then care for the child— the surrogate, the parents, or society? In the surrogate relationship, no one might want to be responsible for the child who is not perfect. Krimmel (1983) notes that when natural parents have a child with a defect, they are likely to accept the child even though there is a problem. Yet, in the surrogate relationship when there is a malformed child, the parents may be reluctant to care for the child whom they now see as being a burden to them. When the parents entered into the contract, they did not bargain for this outcome. As the child develops, a problem that the social parents will have to face is what to tell the child about his or her birth. Sooner or later the child will ask questions about where he or she was born or where he or she came from. Adoptive parents are frequently advised to give a child information about his or her birth that is appropriate for the child's level of development. Concealing information from the child has the potential to harm the child. Additionally, if the child does learn about her or his background from someone other than the parents, the child may begin to wonder what other information has been withheld. This may result in a lack of trust in the family, and relationships within the family may disintegrate. Yet, does telling a child about his or her birth mean that the child should be told who her or his natural mother is? At present, adopted children often search for their biological mothers. This process can create considerable pain for all persons involved. In the case of a surrogate mother, the social parents may or may not know who the woman is who gave birth to their child. To tell the child of his or her parentage may result in a breach of confidentiality if the surrogate mother does not want her identity known. Yet, to not know one's genealogy may be
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psychologically damaging to a person (McCormick, 1987). There is also the concern about future incestuous relationships that may arise if these children of surrogate relationships marry a half-brother or half-sister. Finally, an ethical question facing society is, if surrogate motherhood is a realistic option for couples, must it be available to all members of society? Childlessness is a problem for both the rich and the poor. At present, the option to use this reproductive technology is only available to those who can afford it because paying the medical expenses of the surrogate is generally part of the agreement. This arrangement is not necessarily unfair or discriminatory because there are other ways to adopt a child. To be fair, one can argue, individuals need to have the opportunity to adopt; they do not have to have the same available options or means by which to adopt a child. CONCLUSIONS In this article we have demonstrated that there is a need for careful delineation and explication of both the legal and ethical issues related to surrogate motherhood. The Baby M case has vividly pointed to the complexity of those issues with a consequence that many states are at present considering legislation to regulate surrogacy. When decisions about the surrogate relationship are made, not only must the interests of all parties who entered the contract and of society be served, but also the outcome that is in the best interest of the child must be considered. Although the technology for reproduction by means of a surrogate relationship is available, the questions raised by the use of this technology remain unsettled.
REFERENCES American College of Obstetricians and Gynecologists. (1983). Ethical issues in surrogate motherhood. Washington, DC: Author. Andrews, L. B. (1987). The aftermath of Baby M: Proposed state laws on surrogate motherhood. Hastings Center Report, 77(5), 31-40. Annas, G. J. (1981). Contracts to bear a child: Compassion or commercialism? Hastings Center Report, 11(2), 23-24. Annas, G. J. (1986). The baby broker boom. Hastings Center Report, 16(3), 30-31. Annas, G. J. (1988). Death without dignity for commercial surrogacy: The case of Baby M. Hastings Center Report, 18(2), 21-24. Cohen, B. (1984). Surrogate mothers: Whose baby is it? American Journal of Law & Medicine, 10, 243-285. Dickens, B. M. (1984). Surrogate motherhood, legal and legislative issues. In A. Milunsky & G. J. Annas (Eds.), Genetics and the law III (pp. 183-214). Boston: Plenum.
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Elias, S., & Annas, G. J. (1986). Social policy considerations in noncoital reproduction. Journal of the American Medical Association, 255, 62-68. Healy, J. M. (1984). Legal regulation of artificial insemination and the new reproductive techniques—the search for clarification continues. In A. Milunsky & G. J. Annas (Eds.), Genetics and the law III (pp. 139-145). Boston: Plenum. Krimmel, H. T. (1983). The case against surrogate parenting. Hastings Center Report, 15(5), 35-39. Mady, T. M. (1981). Surrogate mothers: The legal issues. American Journal of Law and Medicine, 7, 323-352. McCormick, R. A. (1987). Surrogate motherhood: A stillborn idea. Second Opinion, 5, 128-132. Miller, T. E. (1988). A resounding no to commercial surrogacy. Hastings Center Report, 78(4), 4. Page, E. (1986). Review article: Warnock and surrogacy. Journal of Medical Ethics, 12, 45-52. Roe v. Wade, 410 U.S. 113 (1973). Surrogate ban OK'd in Michigan. (1988, June 28). The Pittsburgh Press, p. A5. Robertson, J. A. (1983). Surrogate mothers: Not so novel after all. Hastings Center Report, 75(5), 28-34. Winslade, W. J. (1981). Surrogate mothers: Private right or public wrong. Journal of Medical Ethics, 7, 153-154.
