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Theoretical ethics
PAPER
One mum too few: maternal status in host surrogate motherhood arrangements Stuart Oultram Correspondence to Dr Stuart Oultram, Department of Health Services Research, University of Liverpool, Liverpool L69 3GL, UK; [email protected] Received 12 July 2012 Revised 27 March 2014 Accepted 29 July 2014 Published Online First 19 August 2014
ABSTRACT In a host surrogate motherhood arrangement, the surrogate agrees to be implanted with, and carry to term, an embryo created from the commissioning couple’s gametes. When the surrogate child is born, it is the surrogate mother who, according to UK law, holds the legal status of mother. By contrast, the commissioning mother possesses no maternal status and she can only attain it once the surrogate agrees to the completion of the arrangement. One consequence of this is that, in the event that a host arrangement fails, the commissioning mother is left without maternal status. In this paper, I argue that this denial of maternal status misrepresents the commissioning mother’s role in the host arrangement and her relationship with the surrogate child. Consequently, I suggest that commissioning mothers participating in host surrogacy arrangements ought to be granted the status of mother in the event that the arrangement fails.
arrangement fails the commissioning mother has no legally recognised maternal status in relation to the surrogate child. In this paper, I intend, although tentatively, to advance a rationale in support of the idea that in the event that a host surrogacy arrangement fails the commissioning mother ought to be granted the status of mother. However, in doing so, I add the caveat that this should not come at the cost of the surrogate’s own maternal status, as established via the 2008 HFE Act.2 Finally, in the interest of simplicity, discussion will be limited to the maternal status of commissioning mothers participating in host surrogacy arrangements as they are typically organised, that is, as set out at the beginning of this paper, although I acknowledge there are other possible permutations of host arrangements, for example, the commissioning mother need not be part of a couple.
A BRIEF NOTE ON GENETICS INTRODUCTION
To cite: Oultram S. J Med Ethics 2015;41:470–473. 470
Surrogacy arrangements traditionally use the gametes of the commissioning father and the surrogate mother in order to create the embryo that will go on to be the surrogate child. However, in a typical host (or gestational) surrogacy arrangement, a heterosexual commissioning couple use their own gametes to create an embryo that is subsequently implanted into a surrogate mother who then carries that embryo to term on their behalf. However, host surrogacy arrangements, as practised in the UK, still conform to the same regulatory frameworks as traditional arrangements that use the gametes from the surrogate and commissioning father. For example, host surrogacy arrangements are unenforceable, meaning that the surrogate can change her mind with respect to handing over the child.1 2 This also means that in host arrangements it is the surrogate who is recognised as the surrogate child’s mother, as stipulated via Section 27 of the 2008 Human Fertilisation and Embryology Act (henceforth HFE Act 2008), ‘[T]he woman, who is carrying or has carried a child as a result of the placing in her of an embryo or a sperm and eggs, and no other woman, is to be treated as the mother of the child.’2 By contrast, the commissioning mother can only become the child’s mother upon completion of either a parental order or adoption process.2 3 In order for this to occur, the surrogate mother must consent to the completion of the arrangement, that is, she must agree to relinquish the child. One consequence of this is that if a host surrogacy
As host surrogacy arrangements use the commissioning mother’s own egg, it is tempting to consider genetics as a means to securing maternal status for commissioning mothers. Indeed, there are already arguments that do so, either by appealing to physical resemblances between children and their parents4 or by appealing to the essential nature of genetic contributions to the creation of children as a basis for conferring parental status.5 6 Indeed, this thinking appears to have been influential in a recent case in Ireland.7 8 However, aside from the potential philosophical problems arising from appeals to genetics,5 6 there is also a practical problem, in the UK at least, in that the 2008 HFE Act makes it clear that genetics cannot be the basis of motherhood.2 9 Of course, it could be argued that the philosophical problems with appeals to genetics can be overcome6 or that the law is wrong and reliance on gestation as a means of establishing maternity is arbitrary5 and inconsistent, given that genetics is sufficient for establishing paternity. However, for the purpose of this paper, my intention is to explore the possibilities of a non-genetic-dependent rational for granting maternal status to commissioning mothers participating in host surrogacy. Consequently, I will not be discussing genetics as a basis for maternal status for commissioning mothers in this paper.
A CAVEAT REGARDING MATERNAL STATUS AND SURROGATE MOTHERS The aim of this paper is to advance a rationale supporting the idea that, in the event that a host
Oultram S. J Med Ethics 2015;41:470–473. doi:10.1136/medethics-2012-100949
Downloaded from http://jme.bmj.com/ on August 25, 2015 - Published by group.bmj.com
Theoretical ethics surrogacy arrangement fails, commissioning mothers ought to be granted the status of mother. However, this should not be interpreted as advocating the denial of maternal status to the surrogate mother. In a host surrogacy arrangement, the surrogate child is not the genetic progeny of the surrogate. However, they both are still intimately linked through pregnancy, as Trusted notes, ‘The surrogate mother provides material from her own body for the developing [surrogate] foetus; everything it gets comes from her own body via the placenta. She feels it grow and move. Foetus and mother react on each other.’10 So while the surrogate mother may not be able to say of the surrogate child ‘gene of my genes’ she can still say ‘flesh of my flesh’, as Trusted states, ‘[W]hether the surrogate mother donated her own ovum or accepted a tenant embryo, she has actually given part of herself over and above any germ tissue.’10 Indeed, it is the intimate nature of pregnancy that leads some surrogates to change their minds. As this quote from a report on a host arrangement in which the surrogate changed her mind illustrates, ‘They may not have be my eggs but I grew these babies inside me…I bonded with these babies and now love them dearly.’11 Thus, to argue that, in the event that a host surrogacy arrangement fails, we ought to deny maternal status to a surrogate who has carried to term, and laboured to give birth to, the surrogate child makes little or no sense. This caveat means that I am, although indirectly, advocating a position whereby, in the event that a host arrangement fails, both the surrogate mother and the commissioning mother hold the status of mother. Therefore, while the main aim of this paper is to advance a rationale in favour of granting maternal status to the commissioning mother, in the event that a host arrangement fails. I shall, although very briefly due to restrictions on article length, sketch out some of the implications of this caveat. By advocating this position, what I envisage is the adoption of a kinship/child-sharing model, as mooted by Kandel12 and Wallbank,13 respectively. According to Kandel, kinship is an anthropological term used to describe and/or identify family forms in differing cultures, ‘A Kinship group is a network of people who are related by blood, marriage, or solemn social ties and linked through an enduring bundle of rights and responsibilities.’12 Thus, in the context of childrearing and parenthood, kinship denotes how parental rights, status and responsibilities are organised within differing family designs within differing cultures.12 For example, the ‘traditional’ nuclear family can be seen as a (small) type of kinship group through which parental rights, status and responsibilities are organised. Yet the nuclear family is not the only kind of kinship model with some showing marked differences in respect to how parental status, rights and responsibilities are attributed. In particular, as Kandel notes, in regions like Oceania and Western Africa, children can have multiple sets of parents and/or childrearing is undertaken collectively within kinship groups that are far larger than the nuclear family.12 Drawing on these examples, Kandel argues that we should resolve failed host arrangements through solutions premised on the idea that both the surrogate and the commissioning woman are mothers.12 Or as Wallbank states, ‘[The law should] provide a model that recognises and institutes that all parties involved (including the child) have a potential interest in the child’s welfare and that there should be no need to decide cases based on the either/or approach. Rather, the law might move away from a system whereby one mother is chosen over another, towards on whereby child sharing [or Kinship] becomes the norm.’13 Briefly, on a practical level, what this means is that both women—the surrogate and the commissioning woman—will Oultram S. J Med Ethics 2015;41:470–473. doi:10.1136/medethics-2012-100949
hold the status of mother, with the attendant rights and responsibilities. However, determinations of residency, visitations, the general organising of parental relationships with the child or even whether adoption of kinship would be preferable in a given individual case would still remain within the auspices of the courts and what it determines as being in the best interests of the particular child.12 Furthermore, as Kandel12 and Wallbank13 note, applying a kinship/child-sharing model to failed host surrogacy arrangements is not such a radical notion when one considers that blended families and multiple parenthood are a feature of contemporary society. For example, when a couple divorces, residency must be determined, and where a child’s parents have divorced and remarried different partners, there will exist a kinship group that differs from the traditional nuclear family. Such a child may have alternating places of abode and multiple parents, given that step parents can, in the UK at least, acquire parental responsibility for their new partner’s child.14 However, the pluralistic approach to motherhood advocated by the kinship model is likely to be a source of objection, with concerns centring on the welfare of the surrogate child and the fear that (1) increasing the number of parents beyond two, that is, by having two mothers, will lead to increased parental conflict that will run counter to the child’s best interest15 and/or (2) having two mothers will have deleterious consequences for the child’s psychological development.12 15 However, for the purpose of this paper, I will not discuss these objections in detail here, although, by way of priming the debate, I note the following in respect to them. One potential problem for such objections is the presumption that divergence from the nuclear family model necessarily runs counter to a child’s welfare and/or best interests. Kandel12 and Wallbank13 argue that this stems from cultural beliefs about the superiority of the nuclear family and the inferiority, by default, of any alternative. However, according to Kandel,12 where kinship models featuring multiple parenting and child sharing are practised, such as in Western Africa and Oceania, there is no evidence to suggest that they cannot be as conducive to a child’s welfare as the nuclear family. In addition, as Wallbank13 observes, ‘Multiple parenthood abounds in contemporary society through fostering, open adoption, and step parenting and in the best case scenario, without causing undue harm and distress to the child.’ Wallbank13 also suggests that a kinship/child-sharing model would chime with the prevailing view of the law, in the UK at least, regarding child/parent contact, where the presumption is that a child’s best interests are served by having contact with all of its parents. Indeed, by extension, such objections appear to overly focus on family structure at the expense of parental ability.15 Thus, they appear to assume that merely conforming to a particular structure, that is, the two parent nuclear family, guarantees a child’s welfare by default, irrespective of how good the aforementioned parents actually are. As Golombok states, ‘Just because children are conceived in unusual ways, or live in unusual family circumstances does not necessarily mean that they are more likely to grow up psychologically disturbed. Family structure, itself, makes little difference to children’s psychological development. Instead what really matters is the quality of family life.’16 Another potential problem for objections to kinship is that they are likely to be subject to the same problems that affect all objections to surrogacy that invoke child welfare. As Wilkinson observes (from his work on commercial surrogacy), those who object to surrogacy on the basis of child welfare face two questions, ‘First (the empirical question), is there any reason to be especially worried about the well-being of children brought into 471
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Theoretical ethics the world through commercial surrogacy?…will [the lives of surrogate children] be less happy than those of ‘normal’ children? Second (the philosophical question), if it turned out that the lives of children born of commercial surrogacy arrangements really were less happy than those of ‘normal’ children, would this be a reason to restrict commercial surrogacy.’17 Thus, the challenge for objectors to kinship is to answer the same questions: that is, that the lives of children with two mothers will be less happy than the lives of those with the ‘traditional’ one mother, and, even if it were the case, would this be a reason not to use a kinship approach to solve failed host surrogacy arrangements?
COMMISSIONING MOTHERS, MATERNAL STATUS AND REPRODUCTIVE LABOUR In the UK, the legal status of motherhood is bound to gestation. That is to say, and bearing in mind what gestation encompasses, that maternal status is arguably linked to, or derived from, a woman’s reproductive labour. As to why maternal status tracks reproductive labour, Jonas offers two explanations. The first explanation is relatively straightforward and focuses on the essential role of reproductive labour in the creation of a child, as Jonas notes, ‘One of the reasons for thinking that a rights claim can be achieved on the basis of labour would relate to the essential nature of that labour to the creation of the object in question.’6 The second explanation begins with the following thought, ‘People tend to care about things they create more than other people do, and benefit from recognition of their labour through the extension of rights. This certainly seems to be the case where children are concerned.’6 That is to say that mothers, typically, love and care more for their own children than they do for the children of others, as Jonas observes, ‘[They] identify their own interests as being tied up with their children’s welfare in a way that they are not with others.’6 Therefore, mothers benefit, or profit, more from holding maternal status than others would, and suffer more when that status is lost. This also has important and beneficial ‘spin-off effects’6 for children, as Jonas notes, ‘[T]he identification and love that labour can produce in parents in turn generates a willingness to continue working to ensure that the child’s needs are met.’6 Thus, on this reading, maternal status tracks reproductive labour because there are good consequences for doing so, that is, reproductive labour provides the medium through which women bond with their children and thus both woman and child benefit. This is exemplified, notes Jonas, by the fact that when surrogacy arrangements fail it is almost always because the surrogate has bonded with the child, ‘Surrogate mothers, who did not (initially at least) intend to rear the children they bear, often develop strong emotional ties through the process of gestation and find themselves identifying with the fetus.’6 So, and sticking with Jonas’ explanations for the purpose of this paper, what might the above say with respect to granting commissioning mothers, participating in host surrogacy, the status of mother? While commissioning mothers participating in host surrogacy arrangements do not gestate or give birth, they are far from being passive observers. A host surrogacy arrangement requires that the commissioning mother provide her own eggs. This, in turn, requires that she takes drugs to bring about super-ovulation and undergo medical procedures to harvest those eggs, with all the attendant medical risks that follow from this. In short, the commissioning mother does undertake reproductive labour 472
which in turn constitutes an important contribution to the host arrangement. If one holds an essentialist view of reproductive labour, then it follows that the commissioning mother ought to be granted maternal status on the basis that the reproductive labour she contributes is, like that of the surrogate mothers, essential in achieving the host surrogacy arrangement and the creation of the child. However, essentialist appeals are problematic in so much as reproductive labour may not necessarily be the only essential contribution, for example, medical practitioners make essential contributions to many births6 or, alternatively, there may be no essential contributions, only lots of partial contributions.5 Of course, as Jonas notes, it might be possible to subdivide contributions into ‘essential’, or perhaps ‘identity effecting’, contributions and ‘supporting’ contributions in a way that ‘bears theoretical fruit’.6 However, I am inclined to agree with Jonas’ assessment that such an approach is likely to be, ‘[S]o problematic as to be worth avoiding’.6 So for the purpose of this paper I shall focus on the second explanation. Initially, Jonas’ second explanation may appear problematic given the aim of this paper. The reason for this is the following thought: that for the purpose of establishing maternity, the commissioning mother’s reproductive labour is not as important as that of a woman who gestates and gives birth. This is because the commissioning mother’s reproductive labour appears to lack the transformative element of the reproductive labour of a woman who carries and gives birth to a child, that is, the gestational element that leads to the identification described by Jonas. However, to my mind, the reason why this thought is ‘problematic’ is because the role of the commissioning mother in host surrogacy arrangements is being misrepresented. The law can only countenance a child having one legal mother.2 Therefore, when a host surrogacy arrangement fails, the commissioning mother is automatically regarded as being an egg donor, with the attendant position that egg donors have no parental claim on the children their donated gametes produce. Indeed, Wallbank argues that this is how the commissioning mother is regarded from the outset of the arrangement,13 that is, that she is an egg donor up until the point at which the adoption, or parental order, process is completed. The reason why this misrepresents the commissioning mother is because it, to my mind, fails to recognise the context within which commissioning mothers participating in host surrogacy arrangements exist. Women who act as egg donors direct their reproductive labour towards the creation of eggs for other women, and sometimes scientific researchers, to use. In short, women who donate eggs arguably do so in an alienated way in so much as they donate to assist others rather than because they want to become parents themselves. By contrast, a commissioning mother participating in a host surrogacy arrangement will have made a conscious decision to participate. She, along with the surrogate mother and her partner, if there is one, will have embarked on the host arrangement with the intent that at its conclusion the commissioning mother will be the child’s mother. In this regard, the commissioning mother’s reproductive labour is, like the reproductive labour of any woman seeking to become a parent, directed towards the creation of a child to which she will be the mother, that is, to the creation of her child. Indeed, beyond reproductive labour, Roberts notes that commissioning mothers and/or couples go through the same, or similar, bonding and parental processes and rituals that couples reproducing naturally do. For example, commissioning couples Oultram S. J Med Ethics 2015;41:470–473. doi:10.1136/medethics-2012-100949
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Theoretical ethics will attend antenatal appointments with the surrogate and attend child birth education classes.18 Thus, on this reading, to treat, or reduce, the commissioning mother to an egg donor constitutes a failure to recognise the context of both the commissioning mother’s reproductive labour and of host surrogacy itself. As a consequence, the potential problem identified earlier, with respect to Jonas’ second explanation and the granting of maternal status to commissioning mothers, no longer constitutes a problem. This is because the commissioning mother’s reproductive labour, while lacking a gestational and birthing element, still, arguably, exhibits the transformative element that Jonas identifies in her second argument. Specifically, the commissioning mother’s reproductive labour is analogous to the reproductive labour of a woman who gestates and gives birth in so much as, when performed within the context of a host arrangement, it provides the medium through which (1) a woman bonds with and comes to identify her interests as being bound to that of their child, in accordance with the observation that mothers care more about their own children than they do about the children of others and (2) the advantages for both woman and child that accrue from maternal status being tracked in this way are realised.
Acknowledgements I would like to thank Dr Lucy Frith (University of Liverpool), Mr Adam Golberg and my anonymous reviewers for their helpful comments and advice. I would also like to thank the organisers, and attendees, of the 2010 meeting of the UK South West Bioethics Research Net Work (SouthWeb) for allowing me the opportunity to present the initial ideas that subsequently went on to inform this paper. Competing interests None. Provenance and peer review Not commissioned; externally peer reviewed.
REFERENCES 1 2
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CONCLUSION In this paper, I have, although tentatively, advanced a rationale in support of the idea that, in the event a host surrogacy arrangement fails, the commissioning mother ought to be granted the status of mother. This rationale, with reference to Jonas, was underpinned by the argument that the consequentialist reasons that justify tracking maternal status onto reproductive labour also apply to the reproductive labour of commissioning mothers participating in host surrogacy arrangements. Or that, in the context of host surrogacy, the reproductive labour of the commissioning mother is analogous to that of a woman who gestates and gives birth for the purpose of allocating maternal status. However, in advancing this rationale, I added the caveat that granting maternal status to the commissioning mother should not come at the cost of denying maternal status to the surrogate mother. Instead, and with reference to Kandel and Wallbank, I advocated a dualistic approach to motherhood that should be adopted through the use of a kinship/child-sharing model.
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9 10 11
12 13 14
15 16 17 18
Surrogacy Arrangements Act 1985. London: Her Majesty’s Stationery Office (HMSO). http://www.legislation.gov.uk/ukpga/1985/49/section/1 (accessed 10 Oct 2013). Human Fertilisation and Embryology Act 2008. London: Her Majesty’s Stationery Office (HMSO). http://www.legislation.gov.uk/ukpga/2008/22/contents (accessed 10 Oct 2013). Herring J. Medical law and ethics. 3rd edn. Oxford: Oxford University Press, 2010. Rae S. The ethics of commercial surrogate motherhood: brave new families. USA: Praeger (West Point), 1994. Kolers A, Bayne T. Are you my mommy? On the genetic basis of parenthood. J Appl Philos 2001;18:3. Jonas M. Choosing between claims: allocating parental responsibility in surrogacy disputes. In: Häyry M, Takala T, Herissone-Kelly P, eds. Bioethics and social reality. Amsterdam: Rodopi, 2005. Genetic parents win surrogate twins case. The Irish Times, 6 Mar 2013. http://www. irishtimes.com/news/crime-and-law/genetic-parents-win-surrogate-twins- case-1. 1318123 (accessed 17 Apr 2013). Wingfield M. Mary Wingfield: Surrogacy ruling will have disastrous fallout if we don’t legislate right away. Irish Independent, 7 Mar 2013. http://www.independent.ie/ opinion/analysis/mary-wingfield-surrogacy-ruling-will-have-disastrous-fallout-if-wedont-legislate-right-away-29114683.html (accessed 17 Apr 2013). McCandless J, Sheldon S. The Human Fertilisation and Embryology Act (2008) and the tenacity of the sexual family form. Mod Law Rev 2010;73:2. Trusted J. Gifts of Gametes: reflections about surrogacy. J Appl Philos 1986:3:1. Camber R. Couple launch custody battle after surrogate mother decides to keep babies. The Daily Mail, 21 Jan 2007. http://www.dailymail.co.uk/news/ article-431168/Couple-launch-custody-battle-surrogate-mother-decides-babies.html (accessed 14 Apr 2013). Kandel RF. Which came first: the mother or the egg? A Kinship solution to gestational surrogacy? Rutgers Law Rev 1994;47:165–239. Wallbank J. Too many Mothers? Surrogacy, Kinship, and the welfare of the child. Med Law Rev 2002;10. Gambel N. Legal status: parental responsibility. Natalie Gamble Associates. http:// www.nataliegambleassociates.co.uk/page/Parental-responsibility/58/ (accessed 20 Mar 2014). Cutas D. On triparenting. Is having three committed parents better than having only two? J Med Ethics 2011;37:8. Golombok S. Parenting. London: Routledge, 2000. Wilkinson S. Bodies for sale: ethics and exploitation in the human body trade. London: Routledge, 2003. Roberts E. “Native” narratives of connectedness. In: Davies-Floyd R, Dumit J, eds. Cyborg babies: from techno-sex to techno-tots. New York: Routledge, 1998.
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One mum too few: maternal status in host surrogate motherhood arrangements Stuart Oultram J Med Ethics 2015 41: 470-473 originally published online August 19, 2014
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Theoretical ethics
PAPER
One mum too few: maternal status in host surrogate motherhood arrangements Stuart Oultram Correspondence to Dr Stuart Oultram, Department of Health Services Research, University of Liverpool, Liverpool L69 3GL, UK; [email protected] Received 12 July 2012 Revised 27 March 2014 Accepted 29 July 2014 Published Online First 19 August 2014
ABSTRACT In a host surrogate motherhood arrangement, the surrogate agrees to be implanted with, and carry to term, an embryo created from the commissioning couple’s gametes. When the surrogate child is born, it is the surrogate mother who, according to UK law, holds the legal status of mother. By contrast, the commissioning mother possesses no maternal status and she can only attain it once the surrogate agrees to the completion of the arrangement. One consequence of this is that, in the event that a host arrangement fails, the commissioning mother is left without maternal status. In this paper, I argue that this denial of maternal status misrepresents the commissioning mother’s role in the host arrangement and her relationship with the surrogate child. Consequently, I suggest that commissioning mothers participating in host surrogacy arrangements ought to be granted the status of mother in the event that the arrangement fails.
arrangement fails the commissioning mother has no legally recognised maternal status in relation to the surrogate child. In this paper, I intend, although tentatively, to advance a rationale in support of the idea that in the event that a host surrogacy arrangement fails the commissioning mother ought to be granted the status of mother. However, in doing so, I add the caveat that this should not come at the cost of the surrogate’s own maternal status, as established via the 2008 HFE Act.2 Finally, in the interest of simplicity, discussion will be limited to the maternal status of commissioning mothers participating in host surrogacy arrangements as they are typically organised, that is, as set out at the beginning of this paper, although I acknowledge there are other possible permutations of host arrangements, for example, the commissioning mother need not be part of a couple.
A BRIEF NOTE ON GENETICS INTRODUCTION
To cite: Oultram S. J Med Ethics 2015;41:470–473. 470
Surrogacy arrangements traditionally use the gametes of the commissioning father and the surrogate mother in order to create the embryo that will go on to be the surrogate child. However, in a typical host (or gestational) surrogacy arrangement, a heterosexual commissioning couple use their own gametes to create an embryo that is subsequently implanted into a surrogate mother who then carries that embryo to term on their behalf. However, host surrogacy arrangements, as practised in the UK, still conform to the same regulatory frameworks as traditional arrangements that use the gametes from the surrogate and commissioning father. For example, host surrogacy arrangements are unenforceable, meaning that the surrogate can change her mind with respect to handing over the child.1 2 This also means that in host arrangements it is the surrogate who is recognised as the surrogate child’s mother, as stipulated via Section 27 of the 2008 Human Fertilisation and Embryology Act (henceforth HFE Act 2008), ‘[T]he woman, who is carrying or has carried a child as a result of the placing in her of an embryo or a sperm and eggs, and no other woman, is to be treated as the mother of the child.’2 By contrast, the commissioning mother can only become the child’s mother upon completion of either a parental order or adoption process.2 3 In order for this to occur, the surrogate mother must consent to the completion of the arrangement, that is, she must agree to relinquish the child. One consequence of this is that if a host surrogacy
As host surrogacy arrangements use the commissioning mother’s own egg, it is tempting to consider genetics as a means to securing maternal status for commissioning mothers. Indeed, there are already arguments that do so, either by appealing to physical resemblances between children and their parents4 or by appealing to the essential nature of genetic contributions to the creation of children as a basis for conferring parental status.5 6 Indeed, this thinking appears to have been influential in a recent case in Ireland.7 8 However, aside from the potential philosophical problems arising from appeals to genetics,5 6 there is also a practical problem, in the UK at least, in that the 2008 HFE Act makes it clear that genetics cannot be the basis of motherhood.2 9 Of course, it could be argued that the philosophical problems with appeals to genetics can be overcome6 or that the law is wrong and reliance on gestation as a means of establishing maternity is arbitrary5 and inconsistent, given that genetics is sufficient for establishing paternity. However, for the purpose of this paper, my intention is to explore the possibilities of a non-genetic-dependent rational for granting maternal status to commissioning mothers participating in host surrogacy. Consequently, I will not be discussing genetics as a basis for maternal status for commissioning mothers in this paper.
A CAVEAT REGARDING MATERNAL STATUS AND SURROGATE MOTHERS The aim of this paper is to advance a rationale supporting the idea that, in the event that a host
Oultram S. J Med Ethics 2015;41:470–473. doi:10.1136/medethics-2012-100949
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Theoretical ethics surrogacy arrangement fails, commissioning mothers ought to be granted the status of mother. However, this should not be interpreted as advocating the denial of maternal status to the surrogate mother. In a host surrogacy arrangement, the surrogate child is not the genetic progeny of the surrogate. However, they both are still intimately linked through pregnancy, as Trusted notes, ‘The surrogate mother provides material from her own body for the developing [surrogate] foetus; everything it gets comes from her own body via the placenta. She feels it grow and move. Foetus and mother react on each other.’10 So while the surrogate mother may not be able to say of the surrogate child ‘gene of my genes’ she can still say ‘flesh of my flesh’, as Trusted states, ‘[W]hether the surrogate mother donated her own ovum or accepted a tenant embryo, she has actually given part of herself over and above any germ tissue.’10 Indeed, it is the intimate nature of pregnancy that leads some surrogates to change their minds. As this quote from a report on a host arrangement in which the surrogate changed her mind illustrates, ‘They may not have be my eggs but I grew these babies inside me…I bonded with these babies and now love them dearly.’11 Thus, to argue that, in the event that a host surrogacy arrangement fails, we ought to deny maternal status to a surrogate who has carried to term, and laboured to give birth to, the surrogate child makes little or no sense. This caveat means that I am, although indirectly, advocating a position whereby, in the event that a host arrangement fails, both the surrogate mother and the commissioning mother hold the status of mother. Therefore, while the main aim of this paper is to advance a rationale in favour of granting maternal status to the commissioning mother, in the event that a host arrangement fails. I shall, although very briefly due to restrictions on article length, sketch out some of the implications of this caveat. By advocating this position, what I envisage is the adoption of a kinship/child-sharing model, as mooted by Kandel12 and Wallbank,13 respectively. According to Kandel, kinship is an anthropological term used to describe and/or identify family forms in differing cultures, ‘A Kinship group is a network of people who are related by blood, marriage, or solemn social ties and linked through an enduring bundle of rights and responsibilities.’12 Thus, in the context of childrearing and parenthood, kinship denotes how parental rights, status and responsibilities are organised within differing family designs within differing cultures.12 For example, the ‘traditional’ nuclear family can be seen as a (small) type of kinship group through which parental rights, status and responsibilities are organised. Yet the nuclear family is not the only kind of kinship model with some showing marked differences in respect to how parental status, rights and responsibilities are attributed. In particular, as Kandel notes, in regions like Oceania and Western Africa, children can have multiple sets of parents and/or childrearing is undertaken collectively within kinship groups that are far larger than the nuclear family.12 Drawing on these examples, Kandel argues that we should resolve failed host arrangements through solutions premised on the idea that both the surrogate and the commissioning woman are mothers.12 Or as Wallbank states, ‘[The law should] provide a model that recognises and institutes that all parties involved (including the child) have a potential interest in the child’s welfare and that there should be no need to decide cases based on the either/or approach. Rather, the law might move away from a system whereby one mother is chosen over another, towards on whereby child sharing [or Kinship] becomes the norm.’13 Briefly, on a practical level, what this means is that both women—the surrogate and the commissioning woman—will Oultram S. J Med Ethics 2015;41:470–473. doi:10.1136/medethics-2012-100949
hold the status of mother, with the attendant rights and responsibilities. However, determinations of residency, visitations, the general organising of parental relationships with the child or even whether adoption of kinship would be preferable in a given individual case would still remain within the auspices of the courts and what it determines as being in the best interests of the particular child.12 Furthermore, as Kandel12 and Wallbank13 note, applying a kinship/child-sharing model to failed host surrogacy arrangements is not such a radical notion when one considers that blended families and multiple parenthood are a feature of contemporary society. For example, when a couple divorces, residency must be determined, and where a child’s parents have divorced and remarried different partners, there will exist a kinship group that differs from the traditional nuclear family. Such a child may have alternating places of abode and multiple parents, given that step parents can, in the UK at least, acquire parental responsibility for their new partner’s child.14 However, the pluralistic approach to motherhood advocated by the kinship model is likely to be a source of objection, with concerns centring on the welfare of the surrogate child and the fear that (1) increasing the number of parents beyond two, that is, by having two mothers, will lead to increased parental conflict that will run counter to the child’s best interest15 and/or (2) having two mothers will have deleterious consequences for the child’s psychological development.12 15 However, for the purpose of this paper, I will not discuss these objections in detail here, although, by way of priming the debate, I note the following in respect to them. One potential problem for such objections is the presumption that divergence from the nuclear family model necessarily runs counter to a child’s welfare and/or best interests. Kandel12 and Wallbank13 argue that this stems from cultural beliefs about the superiority of the nuclear family and the inferiority, by default, of any alternative. However, according to Kandel,12 where kinship models featuring multiple parenting and child sharing are practised, such as in Western Africa and Oceania, there is no evidence to suggest that they cannot be as conducive to a child’s welfare as the nuclear family. In addition, as Wallbank13 observes, ‘Multiple parenthood abounds in contemporary society through fostering, open adoption, and step parenting and in the best case scenario, without causing undue harm and distress to the child.’ Wallbank13 also suggests that a kinship/child-sharing model would chime with the prevailing view of the law, in the UK at least, regarding child/parent contact, where the presumption is that a child’s best interests are served by having contact with all of its parents. Indeed, by extension, such objections appear to overly focus on family structure at the expense of parental ability.15 Thus, they appear to assume that merely conforming to a particular structure, that is, the two parent nuclear family, guarantees a child’s welfare by default, irrespective of how good the aforementioned parents actually are. As Golombok states, ‘Just because children are conceived in unusual ways, or live in unusual family circumstances does not necessarily mean that they are more likely to grow up psychologically disturbed. Family structure, itself, makes little difference to children’s psychological development. Instead what really matters is the quality of family life.’16 Another potential problem for objections to kinship is that they are likely to be subject to the same problems that affect all objections to surrogacy that invoke child welfare. As Wilkinson observes (from his work on commercial surrogacy), those who object to surrogacy on the basis of child welfare face two questions, ‘First (the empirical question), is there any reason to be especially worried about the well-being of children brought into 471
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Theoretical ethics the world through commercial surrogacy?…will [the lives of surrogate children] be less happy than those of ‘normal’ children? Second (the philosophical question), if it turned out that the lives of children born of commercial surrogacy arrangements really were less happy than those of ‘normal’ children, would this be a reason to restrict commercial surrogacy.’17 Thus, the challenge for objectors to kinship is to answer the same questions: that is, that the lives of children with two mothers will be less happy than the lives of those with the ‘traditional’ one mother, and, even if it were the case, would this be a reason not to use a kinship approach to solve failed host surrogacy arrangements?
COMMISSIONING MOTHERS, MATERNAL STATUS AND REPRODUCTIVE LABOUR In the UK, the legal status of motherhood is bound to gestation. That is to say, and bearing in mind what gestation encompasses, that maternal status is arguably linked to, or derived from, a woman’s reproductive labour. As to why maternal status tracks reproductive labour, Jonas offers two explanations. The first explanation is relatively straightforward and focuses on the essential role of reproductive labour in the creation of a child, as Jonas notes, ‘One of the reasons for thinking that a rights claim can be achieved on the basis of labour would relate to the essential nature of that labour to the creation of the object in question.’6 The second explanation begins with the following thought, ‘People tend to care about things they create more than other people do, and benefit from recognition of their labour through the extension of rights. This certainly seems to be the case where children are concerned.’6 That is to say that mothers, typically, love and care more for their own children than they do for the children of others, as Jonas observes, ‘[They] identify their own interests as being tied up with their children’s welfare in a way that they are not with others.’6 Therefore, mothers benefit, or profit, more from holding maternal status than others would, and suffer more when that status is lost. This also has important and beneficial ‘spin-off effects’6 for children, as Jonas notes, ‘[T]he identification and love that labour can produce in parents in turn generates a willingness to continue working to ensure that the child’s needs are met.’6 Thus, on this reading, maternal status tracks reproductive labour because there are good consequences for doing so, that is, reproductive labour provides the medium through which women bond with their children and thus both woman and child benefit. This is exemplified, notes Jonas, by the fact that when surrogacy arrangements fail it is almost always because the surrogate has bonded with the child, ‘Surrogate mothers, who did not (initially at least) intend to rear the children they bear, often develop strong emotional ties through the process of gestation and find themselves identifying with the fetus.’6 So, and sticking with Jonas’ explanations for the purpose of this paper, what might the above say with respect to granting commissioning mothers, participating in host surrogacy, the status of mother? While commissioning mothers participating in host surrogacy arrangements do not gestate or give birth, they are far from being passive observers. A host surrogacy arrangement requires that the commissioning mother provide her own eggs. This, in turn, requires that she takes drugs to bring about super-ovulation and undergo medical procedures to harvest those eggs, with all the attendant medical risks that follow from this. In short, the commissioning mother does undertake reproductive labour 472
which in turn constitutes an important contribution to the host arrangement. If one holds an essentialist view of reproductive labour, then it follows that the commissioning mother ought to be granted maternal status on the basis that the reproductive labour she contributes is, like that of the surrogate mothers, essential in achieving the host surrogacy arrangement and the creation of the child. However, essentialist appeals are problematic in so much as reproductive labour may not necessarily be the only essential contribution, for example, medical practitioners make essential contributions to many births6 or, alternatively, there may be no essential contributions, only lots of partial contributions.5 Of course, as Jonas notes, it might be possible to subdivide contributions into ‘essential’, or perhaps ‘identity effecting’, contributions and ‘supporting’ contributions in a way that ‘bears theoretical fruit’.6 However, I am inclined to agree with Jonas’ assessment that such an approach is likely to be, ‘[S]o problematic as to be worth avoiding’.6 So for the purpose of this paper I shall focus on the second explanation. Initially, Jonas’ second explanation may appear problematic given the aim of this paper. The reason for this is the following thought: that for the purpose of establishing maternity, the commissioning mother’s reproductive labour is not as important as that of a woman who gestates and gives birth. This is because the commissioning mother’s reproductive labour appears to lack the transformative element of the reproductive labour of a woman who carries and gives birth to a child, that is, the gestational element that leads to the identification described by Jonas. However, to my mind, the reason why this thought is ‘problematic’ is because the role of the commissioning mother in host surrogacy arrangements is being misrepresented. The law can only countenance a child having one legal mother.2 Therefore, when a host surrogacy arrangement fails, the commissioning mother is automatically regarded as being an egg donor, with the attendant position that egg donors have no parental claim on the children their donated gametes produce. Indeed, Wallbank argues that this is how the commissioning mother is regarded from the outset of the arrangement,13 that is, that she is an egg donor up until the point at which the adoption, or parental order, process is completed. The reason why this misrepresents the commissioning mother is because it, to my mind, fails to recognise the context within which commissioning mothers participating in host surrogacy arrangements exist. Women who act as egg donors direct their reproductive labour towards the creation of eggs for other women, and sometimes scientific researchers, to use. In short, women who donate eggs arguably do so in an alienated way in so much as they donate to assist others rather than because they want to become parents themselves. By contrast, a commissioning mother participating in a host surrogacy arrangement will have made a conscious decision to participate. She, along with the surrogate mother and her partner, if there is one, will have embarked on the host arrangement with the intent that at its conclusion the commissioning mother will be the child’s mother. In this regard, the commissioning mother’s reproductive labour is, like the reproductive labour of any woman seeking to become a parent, directed towards the creation of a child to which she will be the mother, that is, to the creation of her child. Indeed, beyond reproductive labour, Roberts notes that commissioning mothers and/or couples go through the same, or similar, bonding and parental processes and rituals that couples reproducing naturally do. For example, commissioning couples Oultram S. J Med Ethics 2015;41:470–473. doi:10.1136/medethics-2012-100949
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Theoretical ethics will attend antenatal appointments with the surrogate and attend child birth education classes.18 Thus, on this reading, to treat, or reduce, the commissioning mother to an egg donor constitutes a failure to recognise the context of both the commissioning mother’s reproductive labour and of host surrogacy itself. As a consequence, the potential problem identified earlier, with respect to Jonas’ second explanation and the granting of maternal status to commissioning mothers, no longer constitutes a problem. This is because the commissioning mother’s reproductive labour, while lacking a gestational and birthing element, still, arguably, exhibits the transformative element that Jonas identifies in her second argument. Specifically, the commissioning mother’s reproductive labour is analogous to the reproductive labour of a woman who gestates and gives birth in so much as, when performed within the context of a host arrangement, it provides the medium through which (1) a woman bonds with and comes to identify her interests as being bound to that of their child, in accordance with the observation that mothers care more about their own children than they do about the children of others and (2) the advantages for both woman and child that accrue from maternal status being tracked in this way are realised.
Acknowledgements I would like to thank Dr Lucy Frith (University of Liverpool), Mr Adam Golberg and my anonymous reviewers for their helpful comments and advice. I would also like to thank the organisers, and attendees, of the 2010 meeting of the UK South West Bioethics Research Net Work (SouthWeb) for allowing me the opportunity to present the initial ideas that subsequently went on to inform this paper. Competing interests None. Provenance and peer review Not commissioned; externally peer reviewed.
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CONCLUSION In this paper, I have, although tentatively, advanced a rationale in support of the idea that, in the event a host surrogacy arrangement fails, the commissioning mother ought to be granted the status of mother. This rationale, with reference to Jonas, was underpinned by the argument that the consequentialist reasons that justify tracking maternal status onto reproductive labour also apply to the reproductive labour of commissioning mothers participating in host surrogacy arrangements. Or that, in the context of host surrogacy, the reproductive labour of the commissioning mother is analogous to that of a woman who gestates and gives birth for the purpose of allocating maternal status. However, in advancing this rationale, I added the caveat that granting maternal status to the commissioning mother should not come at the cost of denying maternal status to the surrogate mother. Instead, and with reference to Kandel and Wallbank, I advocated a dualistic approach to motherhood that should be adopted through the use of a kinship/child-sharing model.
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One mum too few: maternal status in host surrogate motherhood arrangements Stuart Oultram J Med Ethics 2015 41: 470-473 originally published online August 19, 2014
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