Monday, November 22, 2010

Reasonable or Unreasonable? (Reproductive Rights- Who's should win out?)

Don't let market forces govern human procreation

22 November 2010

By Dr Juliet Guichon
Juliet Guichon is Senior Associate in the Office of Medical Bioethics, Faculty of Medicine, University of Calgary

Appeared in BioNews 585

Canada's National Post reported last month that two British Columbians who had hired a 'surrogate' mother, changed their minds and wanted the woman to abort (1). The fetus apparently had Down's syndrome. The pregnant woman resisted abortion but then acquiesced.

Perhaps this case received so much media attention because it starkly pits an idealised vision of the practice of commercial 'surrogacy' against reality. This idealised vision is based on the view that technology, preconception intent and market-based demand for children combine to improve human procreation and thereby quality of life in society. But this British Columbia (BC) case reveals how those three notions fail, in practice, to operate in the best interests of the vulnerable.

Technology means the systematic application of scientific and other organised knowledge to practical tasks by their division into component parts (2). By reducing human procreation to component parts, technology causes sperm, egg and gestational capacity to become 'factors of reproduction' (3). The BC commissioning couple could purchase the missing factor of gestational ability, but contributing a factor to widget production is different from being pregnant, which involves the whole woman including her body and emotions.

When preconception intent is used to determine parenthood, a pregnant woman can become only a 'babysitter' (4). Commissioners also become entitled to interrupt the gestational process based on the presumed quality of the product - even though intentions about child rearing can alter before, during and after a pregnancy.

Preconception intent and genetic relatedness are used to claim that an embryo in another's body belongs to those commissioning. Discounted are the nine months of 24-hour days gestating and then labouring, delivering and lactating. As surrogacy broker Sally Rhoads said: 'The baby that's being carried is [the commissioners'] baby. It's usually their genetic offspring' (5). Market ideology makes technology and preconception intent more powerful. The market permits women to sell their gestational labour to the highest bidder and to permit those wishing to rear a child to pay to obtain one. Scholars argue this system is the best way to satisfy adult desires while maximising social welfare, and promoting autonomy and dignity (6). But where are autonomy and dignity when a pregnant woman is required to submit to highly-invasive gynaecological surgery she apparently doesn't want?

Market norms fail to govern human procreation ethically. As Elizabeth Anderson argued (7), there are four market norms. They include, first, impersonal relations. The goal of preconception arrangements is to create and maintain impersonal relations among all parties to the agreement and the fetus itself. Some agreements state the pregnant woman shall not bond with the fetus. Such terms implausibly require her to have an impersonal relationship with the fetus as it grows and moves inside her and to terminate the relationship almost immediately after birth.

The deal's structure also makes it difficult for the commissioners to have a personal relationship with the fetus. The fetus is unlikely to hear the commissioners' voices because of geographical distance. The commissioners are unlikely to be allowed to touch the woman's abdomen. Moreover the BC agreement also enabled the commissioners to refuse a personal relationship with their genetic offspring if born alive with Down's syndrome. But children have an interest in the love and care of their parents.

Anderson's second market norm is parties should have the ability to pursue their own advantage without consideration of others. This notion probably explains why the commissioners required the woman to abort a fetus they had hired her to carry. Under market norms, parties to a market transaction are expected to take care of themselves and not to depend on others to look after their own interests. As the broker asked: 'Why should the intended parents be forced to raise a child they didn't want? It's not fair' (8).

Anderson's third market assumption is the benefits of the 'good' should be limited exclusively to the purchaser. Denying the bodily participation of all three parties, the market claims only the commissioners are the child's true parents. In reality, the agreement makes them consumers or, at best, optional parents to their living child; as a Vancouver lawyer commented, agreements 'usually absolve the parents of responsibility when a defect is found and the surrogate refuses an abortion' (9).

The fourth market norm is parties' wants or desires are sufficient to justify their market participation if backed by the ability to pay. The market has no method of discriminating among the reasons people have for wanting things and aims to satisfy adult wants. Commissioners can and do remove themselves from transactions if their desires change. Ms. Rhoads said: 'In three other Canadian cases, surrogates are now raising the babies after the commissioning couples got divorced and backed out' (10).

Human procreation makes adults profoundly vulnerable and brings a needy and dependent human to life. This commercial 'surrogacy' case demonstrates how the ideologies of technology, preconception intent and the market exacerbate the vulnerability of adults and thwart the achievement of children's best interests.


  1. Surrogacy has shifted from a miracle of life and has become a scientific equation. The aspect of human procreation is reduced to its component parts, and technology causes sperm, egg and gestational capacity to become “factors of reproduction”. Although the surrogate is donating her body and emotions to carry this child, the procreative decisions still lie in the hands of the commissioners, because preconception intent and genetic relatedness claim that an embryo in another's body belongs to those commissioning. In the British Columbia case, the woman has sacrificed her body to these commissioners to carry their child, and in turn must be willing to give up her position on any decisions regarding the fetus in question. The surrogate has a contractual obligation to grant all decisions to the commissioners, even the decision stating they are “entitled to interrupt the gestational process based on the presumed quality of the product”, which includes abortion. Also, based on the four market norms, the benefits of the 'good' should be limited exclusively to the purchaser. The surrogate is not considered a purchaser, therefore I would have to agree with the argument that she should not be allowed to partake in any of the decisions made regarding the fetus. Having said that, we as humans are given the right to procreate and the right to rear our children as seen fit. When the issue of procreation is turned into a business however, there are more opportunities for couples to take the decision to have children lightly, and by paying, they are allowed to change their minds on having a baby even after gestation has begun. I don’t see how this thwarts the achievement of children's best interests, instead it seems as though it gives expecting parents an easy way out of child rearing if they change their minds.

  2. This article brings up many ethical debates. Many may disagree with the idea of surrogacy. Of course there might not be as much proximity while the child is in the womb, but can the child really recognize and identify this? As long as the child is kept in a safe and healthy environment from conception throughout his or her life, we should be able to procreate in any way. In my opinion, as long as both sides are compliant and agree to the process, it should be allowed. This allows couples that are unable to bear their own children to have them by an alternative method. Through our advances in technology,
    The second issue at hand is the rights of the surrogate mother. She is donating her body to birth a child. Nine months of protection, hormone changes, and delicate handling all for a child that she cannot have any say over. Should she have the right to decline an abortion, a “highly-invasive gynecological surgery”? Do the parents have the right to make her have an abortion? On one hand, it can be argued that it is her body and she has the right to refuse this maybe unnecessary procedure. But on the other hand, it is not her biological child. She agreed to the surrogacy under the grounds that this would not be her child. She should have been informed of this possibility and have been prepared to accept it if need be. She was given a stipend for being the surrogate and she should have accepted all possibilities regarding the process. The procedure to implant the sperm and egg would be just as invasive. If she is very much against abortion and knowingly accepts to keep the unwanted child for herself, she should have that option. In this case, a formal adoption could be arranged, if both the surrogate and the biological parents agree. A happy median would allow for autonomy and dignity for both sides.
    Finally, is the issue of ending a life. It can be argued that because the child knowingly has Down’s syndrome, it can be aborted. Some parents may not be able to handle such a burden in their lives. Despite the many ethical debates behind abortions, it is ultimately the parents’ decision.

  3. In regards to the surrogate mother's rights, she should have the right to refuse an abortion because it is her body and also could cause some psychological problems involving regret and anxieties over the lost child. Because the egg and sperm donors do not want the child, the surrogate should have the option to keep it herself or put the child up for adoption if it means not aborting it. Although I believe she should have the right to refuse abortion, I agree with Alexandra in that the surrogate should have considered possible outcomes when initially deciding to become a surrogate. She agreed to basically allow her body to be used to birth a child and not to have an attachment to that child.

  4. When potential parents engage in an agreement with a surrogate mother, they obviously have expectations about their future child. Therefore, I feel the parents do have the right to ask a surrogate mother to abort a child if that child those not live up to those expectations. However as a surrogate mother, one must not do so on a whim and one must clearly understand all parts of an agreement with the child's parents. The surrogate mother must understand and accept the fact that if the child's parents ask for a abortion that she should be willing to get one. The surrogate mother in the case, may not have comfortable with this and therefore all the options should have been explored before the embryo was implanted. The rights of a surrogate mother are basically relinquished when she engages in an agreement like this one and if she doesn't abide then she may potentially be left with a child.

  5. This article definitely points out some of the more glaring flaws in commercial surrogacy. However, as this is such a complicated and emotionally-charged topic, it is difficult to say for sure what the most ethical solutions are to any of the problems. It does not seem fair to me to apply the typical market-based solutions to a situation in which the "product" is a living child, however. As the article says, it does not take into consideration the surrogate mother's body and emotions either. The whole process just seems cold to me.

    As things stand, however, it is the biological parents' right to decide whether or not they want to raise the child that they have created. The idea that they can bully the surrogate mother into having an abortion does not sit well with me, but the article does mention other cases in which the surrogate instead raised the child herself. It seems to me as though the biological parents should have as many of the same rights as they would have had if they had been carrying the child themselves, excepting those that would infringe on the rights of the surrogate. For example, they should not be forced to raise a child that they do not want, for their sake and for the sake of said child, but they also should not be able to force their surrogate to have an abortion. The main problem is where exactly this line should be drawn.

    In my opinion, the biological parents should retain their right to back out of the arrangement, as they can during normal pregnancies in cases of having abortions and giving children up for adoption. However, once they absolve themselves of responsibility, it seems only right that the surrogate should have her say in what happens to the child. Even though she is technically not supposed to form any kind of attachment to the fetus, this seems like kind of a ridiculous request. She should be able to decide whether or not she terminates the pregnancy, gives the baby up for adoption, or keeps it for her own.

    - Rachel Corrado

  6. It is very important that the details of the surrogacy be discussed very thoroughly prior to the agreement, so that all parties involved known exactly what they are agreeing to and what their options are. It should be clearly laid out in a contract that the commissioners have the right to absolve themselves of any responsibility for the child if they choose, and in that case the surrogate mother should be aware of what her rights are. All of this should be discussed before the surrogacy begins, so that no party is caught off guard.

    In this case, if the parents do not want to take care of a child with Down’s syndrome, they have the right to remove themselves from responsibility for the child, just as a natural mother can choose to abort a child. However, the biological parents do not have the right to force an abortion onto the surrogate mother. If the surrogate mother does not want to risk such an invasive procedure, she should not have to. In recruiting surrogate mothers, fertility clinics should make sure that the women they choose are aware of the possibility that the biological parents will not want the child and that they decide beforehand what they want to do if such a situation arises. All surrogate mothers should be comfortable with abortion, adoption, or raising the child themselves.

  7. This case shows how horrifyingly wrong the beautiful act of creating a child can go. The approach taken by the article truly shows how human life can be commodity. When presented in this manner it makes me wonder how I anyone can view surrogacy or even in vitro fertilization as processes that respect the sanctity of life. If one were to accidentally purchase a defective good we would expect to have the ability to return or exchange the good. Employing a surrogate mother or purchasing donated eggs or sperm is sadly much like buying a good. But, because of the use of these things for the biological action of procreation, a process that goes wrong all the time in nature, one should not have these expectations for perfection even if purchasing the needed components.
    I honestly cannot decide if I personally think it was ethically justified for the commissioner’s to demand the abortion of the child. It is afterall their child. Had the child been in the female’s womb and she chose to abort this case would not have received any publicity.
    When entering into a contract as a surrogate mother and the commissioning couple there must be a process where terms and conditions are laid out. Before entering into the process with one another the surrogate mother should be fully informed of the parents rights to make decisions such as this one. There should be a pre-devised contractual plan regarding how to handle an issue such as this one.

  8. Making childbirth into a market transaction, in which the baby is a product has changed a natural event into impersonal and emotionless contract. However, a surrogate mother openly agrees to such a business exchange at the onset of the process. She willingly gives up a portion of her autonomy for a financial gain.

    In this case, it seems ethical to require the mother to have an abortion. Because the fetus is not her biological child in that the sperm and the egg were that of the commissioners, the baby is not her own. By signing a legal agreement that commits her body to the baby for nine months gives the commissioners an active stance to require this operation. The psychological consequences of having the abortion must be dealt with in a similar manner to which any psychological consequences of not creating an emotional connection to the "product" and baby during the nine month period. Both options are fraught with possible emotional damage, but one is always required at the end of the transaction.

    In this case, it also does not seem ethical to raise the child on her own, due to the fact that it is a commissioned child from the two purchasing the surrogacy. The genetic material, sperm and egg of the baby, belong only to the commissioners and not to the surrogate mother. Of course if the commissioners agreed to this option in the initial contract, then it should be allowed.

    Overall to me, the ethics are based on the market transaction of surrogacy. Allowing emotions to guide the process is in the overall best interest for either of the parents, as the surrogate always has to limit such interaction with the baby, as the parents due to their geological distance. As long as the required abortion, although invasive, would do no further harm to the mother besides the standard risks with the surgery, due to the genetic material belonging solely to the commissioners, it seems ethical to require an abortion.

    -Caitlin Giuggio

  9. The practice of surrogacy -in today's world of reproductive practices and technologies- comes with a whole array of ethical and social problems. However, when it comes to the question of who wins out in a dispute over the fetus, I think the commissioning parents win and not the surrogate mother. In many ways, the surrogate mother surrenders her right to the implanted embryo by virtue of accepting money. Quite simply, it is a business arrangement. The surrogate is paid a fee to carry out a duty (some call it a "babysitting" duty) and that is the extent of her rights and responsibilities. Given this line of reasoning, I think the commissioning parents described in the article had merit when they demanded that the surrogate mother abort the fetus (determined to have Down syndrome). Even though arguments can be made for the rights of the surrogate mother (carrying the fetus for 9 months, labor and delivery, lactation ,etc), I believe these rights are moot because the surrogate forgoes some of her autonomy by accepting money in the first place.

    The larger implication of this story, however, is the dissonance that can sometimes exist between reality and goals of commercial surrogacy and other forms of reproductive technologies.