The debate about surrogacy revolves around the following issues: (a)
whether it is in the interests of the child involved or in the interests of society; or
(b) whether it is exploitative of the birth mother or in the interests of women, as a
whole. In considering the issues under (a) it is often argued that children are at risk of
harm from having socially constructed family relationships rather than natural ones. Many
commentators have likened the experience of children and birth mothers in surrogacy
arrangements to children and relinquishing mothers in adoption, and point to the potential
psychological and social harm that may result. (1) One
argument against surrogacy therefore revolves around the relationships which are involved.
Although talk of interests seems to couch the debate in utilitarian terms (2)
it is not the only way in which the arguments about surrogacy may be seen. Another way of
seeing the debate is in terms of whether surrogacy does harm to the respect due to other
human beings, the participants in the surrogacy process and the child who is conceived and
brought to term. This involves a consideration of the relationship between the husband and
wife (the infertile couple as well as the surrogate and her partner) and the relationship
between the child and his or her putative parents. The second argument against surrogacy
is concerned with the treatment of a person, generally the surrogate but may include
others, as a means to an end. I shall argue that if one takes relationships between
persons seriously, then surrogacy will be destructive of intimate relationships.
Furthermore, if surrogacy is to avoid this it can only do so by treating the surrogate as
a means to an end and not as a person. If this is so, then surrogacy is exploitative and
so immoral.
I shall begin with a consideration of the importance of relationships
in understanding of what it is to be a human person and how these relationships contribute
to what we understand by human flourishing. It is commonly thought that a person alone on
a desert island does not have any moral decisions to make because there is no one to be
affected by whatever actions she chooses. (3) Whether one
agrees with this or not, the salient point is that morality involves the idea of
relationships between persons and that we act immorally when we harm others. In injuring
others we fail to accord them the respect that they are due as persons and so our
relationships with them fail to fully support both our own flourishing as well as theirs.
There is a failure to see that the ‘I’ becomes the ‘I’ fully only
through the ‘Thou’, that is, through the other. A hallmark of ethical theorising
is that moral principles must be universalisable, which means that our moral decision
making is not restricted to a realisation of our own wants and needs. Necessarily, we are
obliged to respect the wants and needs of others because we respect the person and
recognise that it is through their flourishing that we ourselves flourish. We remain
attentive to the needs and wants of others by maintaining our relationships with them. (4)
Hence if surrogacy harms those relationships which contribute to our flourishing as human
persons then it must be considered morally wrong.
MacIntyre (5) argues that one should
resist the temptation to think of human life atomistically, and instead to think of it as
situated in a unity which encompasses the whole of a life and its social relationships. He
remarks that the Aristotelian virtues do not function at all except in the arena of social
relationships. That is, in order to make sense of human moral action we have to situate it
within the practices, traditions and commitments of the communities within which it is
practised. The realisation of human goods, therefore, does not take place in isolation
from others.
A similar argument is mounted by Taylor (6)
who says that to know who I am is a species of knowing where I stand. My identity, he
says, is defined by the commitments and identifications which provide the frame or horizon
within which I can try to determine from case to case what is good, valuable, or what
ought to be done, or what I endorse or oppose. That is to say, Taylor identifies the self
with the moral commitments that one makes. "To know who you are is to be oriented
in moral space." (7) Taylor’s view of the self
seems to be a very rich notion of what it is to be a person, involving our moral stance
and so our relationships with other human beings. I am a self only in relation to others
and so for Taylor who I am emerges from conversations with others. The notion of a human
life as a narrative inevitably means a consideration of that life in relation to those
other human lives with which it is entwined.
In considering the relationships involved in surrogacy, it is worth
noting that there are two main levels, those which involve intimate, face to face
relationships, Gemeinschaft, and those relationships which are more distant and
involve society, Gesellschaft. Within the first set of relationships we locate the
relationship between (i) the infertile couple, (ii) the surrogate and the infertile
couple, (iii) the child and its genetic and surrogate parents, (iv) the child and any
siblings. In addition, we might also consider the wider intimate relationships involving
grandparents and other relatives. Within the second set of relationships we might include
wider communal relationships, such as those scientists and medical practitioners involved
in assisted reproductive technologies, as well as the general community. It is the set of
relationships within the first set with which we shall be concerned.
In considering whether surrogacy is morally licit, it may be argued
that there can be fewer moral objections where the infertile couple are the genetic
parents of the child, that is, in a straightforward case of gestational surrogacy.
Arguments for surrogacy may face fewer objections in the case of gestational surrogacy
because the child is presumed to be incontrovertibly the child of the parents
commissioning the surrogate to carry their child for them. (8)
That is, it is presumed that the relationships between husband and wife and surrogate and
child are clear.
Suppose a woman wishes to help another by bearing a child for her. She
carefully considers her action and its likely effect on others and then freely decides to
bear the child for the other woman. The woman may be a gestational surrogate or may
contribute the oocyte and the infertile woman’s husband the sperm. Alternatively, the
embryo may be formed by IVF from her own oocyte and donor sperm. Again, the question that
is raised concerns the status of a child who is the genetic child of the surrogate and her
husband, if he was the sperm donor. The child in fact is a child of that marriage. On the
other hand, if the infertile woman and her husband supply both ovum and sperm, then the
child is their genetic child. The surrogate’s role is limited to gestation. To say
this, however, should not be taken to mean that the relationship between the birth mother
and the child is to be viewed lightly. Many feminists argue that this relationship is at
least as important as the genetic relationship. (9) If so,
then the issue of parenthood is blurred. It is the importance of the various relationships
involved in surrogacy and the harm which is done to the persons whose relationships are
made so ambiguous that is of moral significance here.
An important consideration is the significance and strength of the
relationship between the infertile woman and her husband or partner and whether the
presence of the surrogate as a third party in the relationship constitutes a destructive
element which erodes the intimacy which exists in an exclusive, committed relationship. (10)
If we argue that the surrogate must not be treated as merely a means to an end, then she
must be recognised as a person. Recognising someone as a person means that we cannot treat
them as only serving to carry out a function. In using descriptive language about the role
of the surrogate, it is easy fail to convey the intimate relationship which the surrogate
has with the child she is carrying. The surrogate does not just bear a child, but the
child who is to be in an intimate relationship with the commissioning couple (that is, the
couple seeking and arranging the surrogacy, irrespective of whether it is a commercial
arrangement or not). The child is in an intimate relationship with the surrogate and so
also is the surrogate with the infertile couple. This suggests that the exclusive
relationship between the commissioning couple is no longer so, since there is another
intimately involved in the having of their child. This involvement is different from any
other individual who might be said to have a relationship with the couple, since the
involvement is directly with what is the most intimate expression of their love. When
couples seek out a surrogate it is not to extend their relationship to include a third
adult person, but to cement their relationship by extending it to include a child. A
couple intent on having a child at all costs sacrifices the exclusive bond between them
and both their relationship and that with their child is compromised. Doing this
intentionally is morally wrong.
The desire to have a child of "one’s own" is a
couple’s desire to embody, out of the conjugal union of their separate bodies, a
child who is flesh of their separate flesh made one. (11)
This is a very powerful image: the notion that a child is produced through the union of a
man and woman who have determined that this is the way in which they will express their
love for one another. It is a means of making their love incarnate. Surrogacy cuts across
this, even though in the case of gestational surrogacy the child is the genetic offspring
of the infertile couple. The involvement of a third person from whose flesh this child is
produced means that the child is linked with another whose presence in the intimate
conjugal relationship compromises that relationship. Kass believes that the largely
universal taboos against incest, and the prohibition against adultery, suggest that
clarity about who your parents are, clarity in the lines of generation, clarity about who
is whose, are the indispensible foundations of family life. Clarity about origins is
crucial for self-identity, itself important for self-respect. (12)
Surrogacy comes between the union of husband and wife in a crucially
fundamental way so that obtaining a child by this means is immoral. At present, technology
is making great strides in keeping premature babies alive at earlier and earlier stages of
development and it is not inconceivable that full ectogenetic gestation will be possible
in the not too distant future. Suppose now that an infertile couple are told that
ectogenetic gestation is available, but great secrecy is needed since the technology needs
to be trialled. They are offered the chance to take part in this trial. Assuming that the
couple are able to conceive in the normal way, but the woman is unable to carry the child,
there does not seem to be any moral objection to ectogenetic gestation, since we can
regard it as an extension of the technology used to keep premature babies alive at earlier
and earlier stages. The couple gratefully agree to be part of the trial. Unbeknowns to
them, however, the reproductive technologist involved with their case has not in fact
perfected ectogenetic gestation (it is still some way off, but he needs results to keep
his research work going and the funds flowing in) and has secretly arranged for a
surrogate to be paid to carry the child. In this case, we would have to say that the union
between husband and wife has not been affected. Although we might not regard the surrogacy
arrangement as moral for other reasons, it is not immoral because a third party has come
between the conjugal union of the married couple.
We are now faced with the situation that in order to conform to the
insistance that no third party be allowed to come between the husband and the wife the
surrogate becomes objectified. The surrogate is not regarded as a third person coming
between the husband and wife, but rather as, in our example, a "hired artificial
womb" or " artificial baby carrier". If now we consider the case where the
infertile couple hire a real (natural) surrogate, but treat her as merely a
"breeder", (13) then we fail to treat her as a
person, but merely as an object or a means to an end. She becomes like the artificial
womb. From this point of view, she is no longer a third party intruding on the unity of
the spouses. This concern for the unity of the spouses seems to be why artificial
insemination of a surrogate in cases where the wife cannot supply a fertile ovum is
preferred, rather than natural insemination, since it does not involve any relationship
with the surrogate, but the price of this seems to involve treating her as a thing. There
are now other reasons to claim that surrogacy is morally illicit, not the claim that it
involves interference in the conjugal relationship, but the failure to treat the surrogate
as a person.
There are in these objections at least two individuals who are being
treated as means to an end, the surrogate mother and the child. Charlesworth argues that
the child is not being considered as a means to an end because in surrogacy arrangements
the child is being brought into existence because the infertile woman wants the same as
the fertile woman does, namely to have child and so does not claim a right to have a child
any more than the fertile woman does in the same circumstances. Charlesworth sees no
difference in the intentions of the two women. (14) There
is, however, one major and obvious difference and that is that the infertile woman cannot
have a child in the same way that the fertile woman can. (15)
In an ideal situation, as we have seen, a couple will want to bring a child into existence
as a manifestation of their love for one another and out of a disinterested wish to give
life to a new human being. An infertile couple who want to do the same are not wanting
something illicit. The difference is that it is not possible for the infertile couple,
except through the use of a surrogate. This is a relevant difference, since it involves a
third party in the relationship. It is this third party that is being used as a means to
an end. There is no doubt that the presence of a third party will bring a degree of
ambiguity, at the very least to the relationship between the husband and wife. The
assumption by Charlesworth seems to be that the surrogate mother has no relevance whatever
to the infertile couple and the child that will result. This is a devaluing of the
surrogate and so is misguided. To argue that one does not have a relationship with the
person that bore one is false. The person who carried a child has an intimate relationship
with that child which cannot be ignored or devalued. (16)
Many feminist writers argue that surrogacy is so exploitative and
oppressive of women that it is not morally licit in any circumstances. Rowland, for
example, points out that it is assumed that genetics determine the most important
relationships, that a woman who has carried a child for nine months is somehow less
connected to the child than a woman who is genetically a child’s mother. There is an
assumption that if a woman carries a child from an egg which is not her own, then the
child is not her own. Rowland claims that women’s experiences contradict these views.
She notes that both a birth mother and a social mother have formed a relationship with the
child, whereas a genetic donor has not necessarily done this. (17)
Szikla says that attempts to reject the birth mother’s undeniable experience of
relationship with her developing baby make use of a number of alienating phrases which
serve to disconnect the birth mother with the child. For example, she is said to provide
an endocrinological vehicle", she performs nothing more than "a basically
gestational role, etc. Language is used to reduce and denigrate the miracle of life which
she carries within her. Szikla makes the point that reproductive technology reinforces the
belief that women must pursue every possible avenue available to them in order to have a
child because the only proper form of parenting is biological. Szkila quotes Margaret
Radin as warning against commercial surrogacy because it could make both women and
children be seen as having only monetary value and so alienating them from their
personhood in a way that brings about an inferior conception of human flourishing. (18)
That is, women and children are seen as commodities.
Both the woman whom supplies the ovum and the woman who gestates the
child have a claim to being the mother of the child and there does not seem to be any easy
way to determine which of the two contributors should be considered the mother — the
woman who supplies the ovum or the woman who carries the child. Both have a claim to being
the mother of the child. If neither claim can be dismissed, then surrogacy by its very
nature must involve three people and so either the notion of an exclusive bond between a
husband and wife is destroyed or if this is to be preserved, then the surrogate has to be
treated as a commodity. (19) Even if we were to find a
satisfactory resolution to this dilemma, there are larger questions concerning the
identity of the individual. Personhood is not solely determined by either genetic or
biological makeup. Identity is constructed in addition to these from one’s social
relationships. It is these which become problematic for someone with two mothers. It might
be argued that it leads to a richer set of relationships, but on the other hand, it might
lead, as it often does for children of migrant families living in a foreign culture, to
ambiguity and a sense of alienation from those with whom he or she ought to be intimately
connected. The child does not have a complete knowledge of the complex web of
interrelationships which contribute to his or her identity. (20)
In considering the issue of surrogacy, we find ourselves on the horns
of a dilemma. Assuming that the relationship between the infertile woman and her partner
is a marriage relationship or a fully committed one and part of treating the surrogate as
a person involves having a relationship with her, we find that surrogacy erodes the
exclusive union between the infertile couple. Solving this by rejecting the notion that
the relationship between the couple ought to be exclusive changes the model of marriage
and family with which we have been working. Much further argument would need to be given
to show that alternative models, such as surrogacy implies, satisfactorily enable human
flourishing to occur. In any case, this solution seems to be at odds with the very reasons
why infertile couples seek treatment for their infertility — they are not seeking
extra partners in their relationship. If we assume that there is no relationship to be had
with the surrogate then we reduce her to the status of a "baby carrier" a
"breeder", a means to an end. In either case, we arrive at the conclusion that
surrogacy is in all of the usual cases morally wrong.
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