Surrogate Motherhood Matthew J. Bulfin, MD Fort Lauderdale, Florida
S the Uterus a Fetal Factory?" and "When Motherhood Is for Sale" are just two of many attention-getting headings one comes across when seeking current information on surrogate motherhood. When Dr. Patrick Steptoe made his first appearance in the United States in 1979 following the birth of the first test tube baby in England, his huge audience of scientists and infertility specialists accorded him a rousing ovation. With the adulation, however, there were measured concerns. Dr. Luigi Mastroianni, noting Dr. Steptoe's admission of the complexity of the procedures, commented, "In our present medical legal climate it would be virtually impossible for us to have a proliferation of these services. If you can't prove expertise and the system goes wrong, it would be a minefield for malpractice. ''I Infertility clinics, however, have proliferated across the country, and thousands of childless couples are seeking help. During 1987, a total of about a billion dollars was spent in the United States to overcome infertility. Reproductive endocrinologists and the new in vitro fertilization specialists with their innovative procreation technology have created feelings of hope and awe among childless couples. Others among us, however, have experienced equally strong emotions of fear, distrust, and uncertainty. Many feel that the unborn child so created in vitro would be particularly vulnerable to exploitation. Surrogacy has already become commercialized, and the reproductive technologies involved can quickly become problem filled. When one tries to develop positions on surrogacy, countless problems can and do surface that are often seemingly unresolvable and that could spawn unlimited litigation. Strange situations can arise even in the preliminary stages of in vitro fertilization. A would-be mother and father sued the hospital and physician that terminated an in vitro experiment without the parents' consent. The plaintiffs claimed that the termination amounted to the deliberate inflicting of severe emotional distress in the would-be parents. The plaintiffs also charged that the defendants usurped and destroyed their property, the contents of the test tube. 2 Let me cite just a few somewhat imaginative but also somewhat realistic surrogate mother scenarios that can certainly lend themselves to litigation: Surrogate mother A, in her third month of pregnancy, develops panic attacks and severe, intractable anxiety, and she opts for abortion. The genetic father is totally opposed to abortion and values his unborn child as irreplaceable. Each principal including the unborn child has an attorney hired or appointed to protect his or her rights. The surrogate mother cannot find a doctor to do her abortion. Court dates are set.
I
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© 1991 by The Jacobs Institute of Women's Health 1049-3867/91/$3.50 WHI Vol. 1, No. 3 Summer 1991
Surrogate mother B, upon ultrasound examination at 4 months' gestation, is discovered to have a triplet pregnancy with marked variation in fetal sizes. The surrogate mother, in a moment of candor, admits to being sexually active following her artificial insemination. The commissioning couple becomes distraught as to which baby would be that of the genetic father. Reproductive endocrinologists, maternal and fetal medicine specialists, interventional radiologists, and superfecundation authorities are consulted as to what to do next. Legal counsel is sought by all parties. Surrogate mother C develops a fulminating preeclampsia at 61/2 months of pregnancy. Convulsions ensue. Emergency cesarean section is done. A 1-pound, 4-ounce infant is born alive, but severely compromised. The mother leaves the hospital after 2 weeks in intensive care. The infant is released from the neonatal intensive care unit after 62 days. The infant's condition is satisfactory, but outlook is guarded. The total hospital bill for mother and baby is $212,000. The commissioning couple refuse to accept the baby or the hospital bill. Attorneys for the baby, the commissioning couple, the surrogate mother, and the hospital begin their deposition proceedings. The baby is placed under the guardianship of the state. Surrogate mother D, the mother of a 5 year old, contracts with a commissioning couple to have, carry, and deliver their baby for an agreed-upon fee of $15,000. All goes according to schedule. The 5-year-old child, however, upon learning that his mother gave her baby away for money, becomes terrified and irreconcilable. He is panic filled, ever fearful, and convinced that his mother will be selling him next. He even asks how much she will get for him. Intensive counseling for both mother and child is needed. No one would deny the joy and happiness brought to a childless couple when surrogate motherhood proceeds according to expectations and fulfills its mission. Countless couples are willing to give enthusiastic testimony for surrogate motherhood. However, both sides of the equation should be looked at. The American Adoption Congress and the National Committee on Adoption v e h e m e n t l y o p p o s e surrogacy. France, Germany, Israel, and Japan, among other countries, have in recent years outlawed surrogacy. In surrogate motherhood, the attorney may spend more time with the surrogate mother than will her obstetrician. Second opinions and third opinions are just as likely to be sought from attorneys as from other obstetricians and gynecologists. The American College of Obstetricians and Gynecologists (ACOG) Committee on Ethics has recently stated that a physician may justifiably decline to participate in initiating surrogate motherhood arrangements. ACOG obviously feels that an obstetrician-gynecologist who refuses to become involved in surrogate motherhood arrangements is not breaching the standards of quality care espoused by the College. Then, too, the Committee on Ethics, in its wisdom, may feel that this ruling could help to reduce litigation exposure. Procreative technology continues to stay well ahead of society's ability to find the universally acceptable ethical norms to justify some of its science fiction advances. This whole new arena of surrogate parenting is begging for acceptance and respect from a public with variegated religious and cultural backgrounds. Where might we turn nowadays for a restudy of fundamental values? In 1987, the Catholic Church, not unexpectedly, issued strong statements against both in vitro fertilization and surrogate motherhood. In recent years, the Vatican's refusal to conform to changing contemporary morality, espedally regarding artificial contraception, has often brought denunciation labeling the church as antiquated, misogynist, and unreasonable. However, this new pronouncement on in vitro fertilization and surrogate motherhood WHI Vol. 1, No. 3 S u m m e r 1991
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141
evoked little, if any, critical response. Public support for surrogate motherhood is far from universal. It may be that some of those in the scientific community who would ordinarily pay little attention to Vatican views may welcome an unambiguous set of principles clearly espoused in the latest Vatican document, "Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation. ',3 However, contemporary society's magnetic attraction to the concepts of cultural pluralism and ethical relativism may outweigh its possible support for the Catholic Church's age-old predilection for fundamental values. What is happening in the world today may well dramatize the tragic consequences of not having any fundamental or universal absolutes. The Catholic Church may not be all wrong. In years to come, it may take a wise child to know her own mother.
142 BULFIN:COMMENTARY
REFERENCES 1. American MDs urged to proceed cautiously on in vitro fertilization. AMA News, 23 February, 1979, p 16. 2. Del Zio v Presbyterian Hospital, 74 CIV 3588 (SDNY 1976). 3. Frawley J. Catholic morality has lesson for us all (editorial). Wall Street Journal, 7 April, 1987.
WHI Vol. I, No. 3 Summer 1991
S the Uterus a Fetal Factory?" and "When Motherhood Is for Sale" are just two of many attention-getting headings one comes across when seeking current information on surrogate motherhood. When Dr. Patrick Steptoe made his first appearance in the United States in 1979 following the birth of the first test tube baby in England, his huge audience of scientists and infertility specialists accorded him a rousing ovation. With the adulation, however, there were measured concerns. Dr. Luigi Mastroianni, noting Dr. Steptoe's admission of the complexity of the procedures, commented, "In our present medical legal climate it would be virtually impossible for us to have a proliferation of these services. If you can't prove expertise and the system goes wrong, it would be a minefield for malpractice. ''I Infertility clinics, however, have proliferated across the country, and thousands of childless couples are seeking help. During 1987, a total of about a billion dollars was spent in the United States to overcome infertility. Reproductive endocrinologists and the new in vitro fertilization specialists with their innovative procreation technology have created feelings of hope and awe among childless couples. Others among us, however, have experienced equally strong emotions of fear, distrust, and uncertainty. Many feel that the unborn child so created in vitro would be particularly vulnerable to exploitation. Surrogacy has already become commercialized, and the reproductive technologies involved can quickly become problem filled. When one tries to develop positions on surrogacy, countless problems can and do surface that are often seemingly unresolvable and that could spawn unlimited litigation. Strange situations can arise even in the preliminary stages of in vitro fertilization. A would-be mother and father sued the hospital and physician that terminated an in vitro experiment without the parents' consent. The plaintiffs claimed that the termination amounted to the deliberate inflicting of severe emotional distress in the would-be parents. The plaintiffs also charged that the defendants usurped and destroyed their property, the contents of the test tube. 2 Let me cite just a few somewhat imaginative but also somewhat realistic surrogate mother scenarios that can certainly lend themselves to litigation: Surrogate mother A, in her third month of pregnancy, develops panic attacks and severe, intractable anxiety, and she opts for abortion. The genetic father is totally opposed to abortion and values his unborn child as irreplaceable. Each principal including the unborn child has an attorney hired or appointed to protect his or her rights. The surrogate mother cannot find a doctor to do her abortion. Court dates are set.
I
140
BULFIN: COMMENTARY
© 1991 by The Jacobs Institute of Women's Health 1049-3867/91/$3.50 WHI Vol. 1, No. 3 Summer 1991
Surrogate mother B, upon ultrasound examination at 4 months' gestation, is discovered to have a triplet pregnancy with marked variation in fetal sizes. The surrogate mother, in a moment of candor, admits to being sexually active following her artificial insemination. The commissioning couple becomes distraught as to which baby would be that of the genetic father. Reproductive endocrinologists, maternal and fetal medicine specialists, interventional radiologists, and superfecundation authorities are consulted as to what to do next. Legal counsel is sought by all parties. Surrogate mother C develops a fulminating preeclampsia at 61/2 months of pregnancy. Convulsions ensue. Emergency cesarean section is done. A 1-pound, 4-ounce infant is born alive, but severely compromised. The mother leaves the hospital after 2 weeks in intensive care. The infant is released from the neonatal intensive care unit after 62 days. The infant's condition is satisfactory, but outlook is guarded. The total hospital bill for mother and baby is $212,000. The commissioning couple refuse to accept the baby or the hospital bill. Attorneys for the baby, the commissioning couple, the surrogate mother, and the hospital begin their deposition proceedings. The baby is placed under the guardianship of the state. Surrogate mother D, the mother of a 5 year old, contracts with a commissioning couple to have, carry, and deliver their baby for an agreed-upon fee of $15,000. All goes according to schedule. The 5-year-old child, however, upon learning that his mother gave her baby away for money, becomes terrified and irreconcilable. He is panic filled, ever fearful, and convinced that his mother will be selling him next. He even asks how much she will get for him. Intensive counseling for both mother and child is needed. No one would deny the joy and happiness brought to a childless couple when surrogate motherhood proceeds according to expectations and fulfills its mission. Countless couples are willing to give enthusiastic testimony for surrogate motherhood. However, both sides of the equation should be looked at. The American Adoption Congress and the National Committee on Adoption v e h e m e n t l y o p p o s e surrogacy. France, Germany, Israel, and Japan, among other countries, have in recent years outlawed surrogacy. In surrogate motherhood, the attorney may spend more time with the surrogate mother than will her obstetrician. Second opinions and third opinions are just as likely to be sought from attorneys as from other obstetricians and gynecologists. The American College of Obstetricians and Gynecologists (ACOG) Committee on Ethics has recently stated that a physician may justifiably decline to participate in initiating surrogate motherhood arrangements. ACOG obviously feels that an obstetrician-gynecologist who refuses to become involved in surrogate motherhood arrangements is not breaching the standards of quality care espoused by the College. Then, too, the Committee on Ethics, in its wisdom, may feel that this ruling could help to reduce litigation exposure. Procreative technology continues to stay well ahead of society's ability to find the universally acceptable ethical norms to justify some of its science fiction advances. This whole new arena of surrogate parenting is begging for acceptance and respect from a public with variegated religious and cultural backgrounds. Where might we turn nowadays for a restudy of fundamental values? In 1987, the Catholic Church, not unexpectedly, issued strong statements against both in vitro fertilization and surrogate motherhood. In recent years, the Vatican's refusal to conform to changing contemporary morality, espedally regarding artificial contraception, has often brought denunciation labeling the church as antiquated, misogynist, and unreasonable. However, this new pronouncement on in vitro fertilization and surrogate motherhood WHI Vol. 1, No. 3 S u m m e r 1991
BULFIN: COMMENTARY
141
evoked little, if any, critical response. Public support for surrogate motherhood is far from universal. It may be that some of those in the scientific community who would ordinarily pay little attention to Vatican views may welcome an unambiguous set of principles clearly espoused in the latest Vatican document, "Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation. ',3 However, contemporary society's magnetic attraction to the concepts of cultural pluralism and ethical relativism may outweigh its possible support for the Catholic Church's age-old predilection for fundamental values. What is happening in the world today may well dramatize the tragic consequences of not having any fundamental or universal absolutes. The Catholic Church may not be all wrong. In years to come, it may take a wise child to know her own mother.
142 BULFIN:COMMENTARY
REFERENCES 1. American MDs urged to proceed cautiously on in vitro fertilization. AMA News, 23 February, 1979, p 16. 2. Del Zio v Presbyterian Hospital, 74 CIV 3588 (SDNY 1976). 3. Frawley J. Catholic morality has lesson for us all (editorial). Wall Street Journal, 7 April, 1987.
WHI Vol. I, No. 3 Summer 1991
