Ethical Issues in Surrogate Motherhood: A Case Study of Baby M
Ethical Issues in Surrogate Motherhood: A Case Study of Baby M
Societal evolution and technological advancement propelled ethical issues on assisted reproduction that ranges from artificial insemination, gamete donation and surrogate motherhood. The primary contention on both sides had been whether it is ethical to produce children in such manners or conversely, will the legality of the act supercede the moral and ethical responsibility of the parties involved.
More aptly, can the bond formed in pregnancy between biological mother and infant supersede the bond of a legal contract? What are the responsibilities of the parents in the process? These are the moral questions that may have arisen for individuals who faced the controversies of the Baby M surrogate motherhood case in 1987. This evoked justice considerations of laws and contracts, pitting them against caring considerations of relationships and love.
This essay discussed the ethical issues surrounding the case of Baby M in terms of right to reproduce vs. the right or the best interest of the child, the morality of “creating children” from donor gametes, the reproductive rights of the mother, commercial surrogacy and the acceptance of technological advancement of technology in reproduction. This article contends that commercial surrogacy should not be allowed based on the following arguments: (1) it is a violation of the rights of the mother and the child; (2) it is considered as baby-selling; and (3) children are not commodities or properties that can be bought or sold.
Legal Background of the Baby M Case
The case of Baby M paved the way for an ethical and legal debate that disputed the issue of surrogacy. The case involved a custody dispute between the father, William Stern, who contracted the mother, Mary Beth Whitehead, to bear him a child through artificial insemination (Baby M, 217 N.J. Super 313 (1987). The contract shows that the mother shall receive $10,000 upon terminating her parental rights and giving up the child to him. The lower court ruled that the child be given to the father on the virtue of the child’s best interest. The court reached the Supreme Court when the mother appealed and argued that the contract is unenforceable. The verdict restored the mother’s parental rights, denied the adoption of Elizabeth Stern but granted a custody for William Stern (In the Matter of baby M, 1988). The SC ruled: (1) that the giving of money to a woman to induce her to surrender her child for adoption was unconstitutional; (2) that the state’s adoption laws permitted irrevocable surrender of a child only after birth; and (3) that the law requires proof of abandonment or unfitness prior to termination of parental rights or adoption without consent (Baby M, 217 N.J. Super 313 (1987).
Surrogacy agreements have been the subject of much academic debate (Allen, 1988). Separate from, and often prior to, the question of enforceability of such agreements is the question of legal parenthood (Gillers, 2001). Is the surrogate mother the original parent by virtue of having gestated the fetus? Are the genetic parents the original parents by virtue of having contributed the necessary genetic materials? Are the intending parents, those who orchestrated the creation of the newborn, the original parents by virtue of contract?
The Baby M court applied common law to settings of assisted reproductive technology (Gillers, 2001). In Baby M, the court prioritized the biological relationship in determining that both the biological father and the biological mother were the parents.
In the Baby M case, the New Jersey Supreme Court assumed that the biological father and the biological mother, Mr. Stern and Mrs. Whitehead, were the infant's parents and decided the issue with respect to the best interests of the child. Although the U.S. Supreme Court cases dealing with unwed fathers did not simply assume that biological fathers are automatically legal fathers, the unwed fathers in all of those cases argued for that simple equation (Quilloin v. Walcott 434 U.S. 246, 252 1978).
While the treatment of simple surrogacy and gestational surrogacy varies from state to state, the two most widely publicized cases have distinguished the types of surrogacy from one another. The well-publicized Baby M case rested on claims of biological parenthood. In the Baby M case, (Baby M, 537 A.2d 1227 N.J. 1988) where Mary Beth Whitehead was artificially inseminated with Mr. Stern's sperm, the New Jersey court voided the surrogacy agreement as being contrary to public policy, and gave Mr. Stern and Mrs. Whitehead equal claims to the child. Having determined that both of the claimants were legal parents, the court determined which home was better suited to the best interests of the child. In the court's assessment, Mr. Stern and his wife could provide a better home for Baby M, and hence it awarded custody to Mr. Stern.
Ethical Issues in the Baby M Case
The decision of the lower court and the Supreme Court had its own supporters; the debate however, had moved beyond the legal issues to extend to the more heated argument of the ethical considerations that the Baby M case had sparked. Primarily, the two sides had been that of Mr. Stern and Ms. Whitefield; the issue being who should get the custody of the child. The ethical and moral issue of the debate was however contextualized in an even bigger venue; the issue of assisted reproduction in general and surrogate motherhood In particular.
Right to Reproduce vs. Right of the Child
The first ruling of the lower court on the baby M case granted the custody to Mr. Stern because it argued that the best interest of the child is to be with Mr. Stern’s family. The argument holds a very important concept in the discussion- the right of the child or the best interest of the child. It presupposes that the dispute’s central contention must take into consideration of the child more than anything else.
There are two different versions of the genetic argument: the property version and the "best interests of the child" version. In the property version, adults' rights to their biological children stem from the property interest they have in their genes (Erickson and Saldeen, 1993). In the "best interests of the child" version, adults' rights to their biological children are justified because children are better off with their genetic parents (Erickson and Saldeen, 1993). However, in the case, the judge ruled otherwise. The child was given to Mr. Stern because he was deemed fit to raise the child.
More than the issue of custody though, the question that should be raised is on whether the mother and the father has the right in the first place to enter the contract. So we ask: Does the right to reproduce supercedes the right of the child specifically, the right to have a biological family and the right not to be treated as a property that can be bought or sold?
O’Rourke (1987) argued that children are not possessions and should not be treated as such. Thus, it is ethically wrong to base parenthood on the premise that it is a legal contract but rather as O’Rourke (1987) contend parenthood should be characterized by continuing generosity and self-sacrificed. Therefore, he concluded that surrogate motherhood be made illegal because it is unethical.
On the other hand Pollitt (1987) argued that the first ruling of the lower court (granting custody to the father) is right in the sense that it is not baby selling because a man has the right to pro-create and that the baby is half his. Thus, the judge has the right to rule on the basis of terminating the mother’s rights without finding that she abused or neglected her child.
It is arguably ethically wrong to presume that one’s own body is at one’s disposal. While I agree that the responsibility and the right to own one’s body should be exercised, such prerogative ends once another life is involved. The right to reproduce for the sake of one’s financial gain or to satisfy any desire to have a child in this sense ends, once the right of another life specifically that of a child begins.
Despite prevailing cultural norms to the contrary, there are currently several markets in which human commercial transactions do occur with regularity and, at the extreme, in which people are exchanged for money (Hirschman, 1991). Cooper and Glazer (1998) illustrated the history of the issue of secrecy and privacy in the relationship of donor and patient- this tradition they say provided for the basis for the confusion on the right to information regarding one’s genetic origins.
Gamete donation presents one way of surrogacy where a female receives a gamete from a donor. More often, the secrecy of such transaction is held and the parents walks away with the child who most often grows without knowing that he/she is living not with his/her biological parents.
Gamete donation’s ethical dilemma rests on the issue of the child knowing his or her biological history. From a medical standpoint, this prevents the proper tracing of medical history. Moreover, amidst the poverty in the world today and children lacking the care they need, is it ethically correct to produce babies from unknown gamete donors rather than to adopt? While we do recognize that the parents has the right not to adopt, it is also troubling to reconcile the fact that while there are homeless children, we would rather choose to reproduce.
Ethical Analysis of Commercial Surrogacy
Because of the commercial aspects of surrogacy technology and because it involves the intentional conception of a child who will be given up by its natural mother in return for money, this treatment for infertility has raised substantial ethical controversy (Hirschman, 1991). Undoubtedly the most vivid exemplar was the "Baby M" case, which involved two sets of parents, William and Elizabeth Stern and Richard and Mary Beth Whitehead, fighting over possession of one baby (Colen 1987; Diamond 1988). Reviewing this case, as presented in the popular press from 1986 to 1988, will help to highlight the consumer policy issues involved.
A surrogate mother is defined by the Ethics Committee of the American Fertility Society as a woman who is artificially inseminated with the sperm of a man who is not her husband; she carries the pregnancy and then turns the resulting child over to the man to rear. In almost all instances, the man has chosen to use a surrogate because his wife is infertile. After the birth, the wife will adopt the child. The primary reason for the use of this technology is to produce a child who is genetically linked to the father. (1986, 62)
Although surrogate motherhood is often depicted in the press (Keane 1981) as the converse of artificial insemination, in fact it differs in several important respects. First, it represents a significantly greater physiological and emotional commitment on the part of the surrogate mother. The surrogate mother not only provides genetic material, her egg, but also gestates and gives birth to the child. Because of these latter contributions, she is paid a substantially larger fee for her services. Further, because under normal circumstances a baby is legally presumed to belong to the woman who gives birth to it, the surrogate mother must sign a contract prior to conception abdicating her possession of the child and agreeing to surrender it upon birth to the man with whose sperm she was impregnate (Keane 1981).
An article in Time notes that the contract in which the Sterns agreed to pay Mary Beth Whitehead to have a child fathered by Mr. Stern raised several issues relating to the sacred/profane exchange dilemma: "Is a womb a rentable space? Should the use of a surrogate mother be a legitimate option for couples who cannot have children? Or is it an odious trade in babies?" (Lacayo 1986, 36). The article also introduced several socioeconomic distinctions between the parties to the exchange. In a subsequent article in People, Mary Beth raised the issue of exploitation of the poor by the rich: "You cannot contract to sell a baby. If they legalize this contract, they may soon start bringing in poor women from other countries just to be breeders (like me)" (Whitehead 1986, 52).
Simultaneously, a piece in Newsweek (Kantrowitz 1987) makes it clear that a valuable product was at stake in the controversy: a blond, blue-eyed little girl. In April 1987, Judge Sorkow rendered his decision, awarding custody of Melissa to the Sterns. "At birth, mother and father have equal rights to the child . . . the biological father pays the surrogate for her willingness to be impregnated and carry his child to term," wrote Sorkow. "At birth the father does not purchase the child. It is his own, biologically, genetically related child. He cannot purchase what is already his" (Colen 1987, 64). an editorial in time counters,
As many sources suggest, human life is considered sacred in our society (Andrews 1988; Bazell 1988), and the creation of human life is considered the most sacred act in which a couple can engage (Rifkin 1988). Several commented explicitly on the sanctity of the fetus and the sanctified role of the mother.
Birth and children have traditionally functioned as symbols of promise, continuity, and renewal. And the fetus . . . serves even more dramatically as a symbol of innocence and hope. . . . It has become a symbol of nature; a token of people's reverence for the universe, for natural processes and for creation itself. (Gallagher 1988, 166)
The desire to bear a child is a deep and natural one for couples, their inability to reproduce is often a source of sorrow. Unfortunately, adoption is not an easy alternative today. Because of the availability of legal abortions and because an increasing number of unwed mothers are choosing to keep their babies, there are fewer babies available through adoption agencies. Under these circumstances, it's not surprising that when the wife is infertile, some couples are turning to "surrogate mothers," women who will bear the husband's baby for a fee, and give it up to the birth father and his wife for legal adoption (Crandall, Goldman, Pennington and Tsang, 1999). A broker, usually a lawyer, puts a potential surrogate mother in touch with a couple, and if the couple and the surrogate agree, they sign a contract specifying in detail the surrogate's responsibilities for care for her health during the pregnancy, the transfer of legal custody, the fee paid to the surrogate, etc.
Yesilyurt (1995) in his review of Chesler’s Sacred Bond (1988) agreed that surrogacy is immoral- it is the equivalent of selling babies. He also argued in line with Chesler that surrogacy is highly related to class but disagreed on the patriarchal relationship of surrogacy. Yesilyurt argued that despite the central role of the mother in a child, the role of the father should not be ignored.
Even with the advent of mothers who are not genetically related to the children they carry or gestational carriers, the practice of commercial surrogacy (as opposed to a woman who carries a baby for her sister or friend) remained to be one of the most controversial issues after the Baby M controversy (Smith, 1997). According to Smith’s report, it is an attempt to commodify the act of child-bearing and the children, which is equivalent to baby-selling.
Despite the commercialism described, there is another side to surrogacy. Contrary to the negative publicity and torn emotions engendered by the "Baby M" trials, over 500 children have been born as a result of surrogacy and only a handful have experienced contested custody; the vast majority of transactions have gone smoothly with satisfied parties on both sides of the exchange (Overhold 1988). Thus, most participants have ended up happy, and 500 children have experienced a life that otherwise would never have occurred (Ethics Committee of the American Fertility Society 1986).
Commercial surrogacy should not be regarded as a right of the parents or a pre-requisite that can be disposed of when a person has the urgent need for some financial sustainability. It is ethically wrong to presume that survival is enough reason to surrogate a child. In this context, children should not be regarded as properties or commercial products that can be disposed of.
Liberation vs. Exploitation of Women
Arguments favoring the enforcement of surrogacy agreements point out that they are not exploitive, as they represent contracts which are mutually beneficial to both parties. Couples would not enter into surrogacy contracts if they did not believe they would derive a value from having the baby which would be greater than the fee paid to the surrogate. Likewise, women serving as surrogates must also believe that the experience of giving birth to a child for another couple will be worth the payment received.
Opponents of commercial gestational surrogacy argue that the fee paid to surrogate constitutes an undue inducement, forcing the woman to do something [that she] ordinarily would not do. However, commentators point out that the prospect of compensation is an inducement to virtually all potential surrogates, except perhaps for close friends and family, since it is rare for a woman to serve as a surrogate voluntarily. Furthermore, it is not in the commissioning couple's interests to find a surrogate whom they can exploit, as they do not want the surrogate engaging in behavior that could harm the child, or reconsidering her decision mid-course. Also, commissioning couples are certainly aware that the traditional remedies of fraud and misrepresentation are available to the surrogate if some type of exploitation does occur; the determinative factor here is whether the surrogate herself is aware of the forms of recourse that may be available to her.
Another argument addressing exploitation asserts not that surrogacy arrangements are not exploitive, but rather that they are justified in their exploitation because they reflect the conscious decision of the surrogate to engage in a particular type of work. Commentators point out that a court that prohibits a woman who is willing to serve as a surrogate and who greatly needs the money is demonstrating a hypocritical concern for her interests since it has no other way to provide relief from her financial constraints. This discrepancy has been viewed as patronizing to women because it purports to protect them from doing what they want to do. Moreover, a woman's overall right to contract might be endangered if surrogacy contracts, involving her own body, are not enforced.
Technology in Reproductive Policies
The emergence of new reproductive technologies has ushered in new possibilities not only for women unable to bear children, but also for women willing to bear children for another, and for individuals interested in facilitating the introduction of these two groups for a profit. One product of this new technology, gestational surrogacy, has forced society to reconsider established notions about the beginning of life and the identity of the biological mother. In so doing, it has brought into question the ethics of paying women to bear children and the potential for exploiting surrogates through those payments. Faced with international gestational surrogacy arrangements and no corresponding policy to address them, the need for a comprehensive policy is exigent.
The Stern-Whitehead case was important in that it established some legal precepts for consumer policy decisions in a heretofore largely unregulated human market. Over the past decade 2,000 infertile couples have contracted with women to bear them babies for a fee averaging $10,000 (Kantrowitz 1990). The vast majority of these transactions are arranged by surrogate parenting clinics, at least nine of which advertise regularly in local or national newspapers (Overhold 1988, 165).
Prior to the new technologies for engineering human reproduction, conception was viewed as an uncontrollable natural force, the miracle of life, as many of the present texts termed it. Similarly, prior to novel medical technologies for prolonging life and eradicating disease, death was also viewed as an uncontrollable, natural event. Secularization -- the ability of humans to control natural processes through technology -- has altered society's views of life and death. Through technology, people can now assist the creation of life and prevent or at least stave off death.
Several ethicists view any technological intervention into the sanctity of life and death as harmful. Rifkin (quoted in Frank and Vogel 1988) states:
Those things we can't control, we tend to regard as sacred. . . . As parts of nature come under our control, we desacralize them, turning them into mere utilities. In other words, the part of the [life] process that cannot be anticipated and manipulated remains in the realm of the sacred; the part that can be anticipated and made to serve human ends becomes profane. . . . It is also true that familiarity breeds contempt or indifference. As we gain control over things, they lose their fascination for us. What was once the object of our respect becomes mundane appendage. (254)
Reproduction is a right of people who do it for the right reasons. Definitely, having a child based on the premise that a child could be bought or sold is ethically and morally wrong. Children are not properties nor are they commodities to be produced at one’s own volition and be exchanged for something. This act reduces human beings to the barbaric beings we used to be.
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