COMMERCIAL SURROGACY: Questions and Considerations of Parties with Vested Interests
During classroom discussion of human reproduction or current events, the question of surrogate motherhood often arises. The development of new reproductive technologies such as in vitro fertilization and embryo transfer has made it technically feasible for a woman to gestate a child for another woman. This possibility raises ethical questions and concerns for many different groups. Future U.S. Supreme Court rulings about the legitimacy or regulation of surrogate motherhood could polarize our country in much the same way as the debate over a woman's right to terminate a pregnancy. By providing students with background information and exposing them to the views and considerations of parties with vested interests, they will be better prepared to deal with this eventuality.
Intended Audience: Grades 9-12; units on human reproduction in health,life sciences, or biology classes
The students will expand their perceptions of the issue of surrogate motherhood.
The students will widen their circle of concern about an issue that may impact their lives or the life of someone they know.
The students will discuss and analyze the considerations of the various interest groups involved with the issue of surrogate motherhood.
Teacher background information on surrogate motherhood describing the technology involved, types of surrogacy and current laws and recommenda-tions (Appendix A), an envelope with questions and considerations for each interest group, instruction/worksheet for each student group ("Group Work-sheet" - one per group per period), homework sheet ("A National Policy on Surrogate Motherhood" - one per student).
In order to help students reflect on the views and positions of the various interest groups, they will take part in and listen to a panel discussion of surrogate motherhood. At the completion of the discussion, students will do an independent writing assignment, followed by a discussion of the assign-ment. The discussion will lead to a class consensus on a national policy for the legality and regulation of surrogate motherhood. Students will end by explaining, in writing, their agreement or disagreement with the class consensus.
One of the major goals of this, as any activity involving bioethical issues, is to provoke the student to expand his/her perceptions of both the problem and possible solutions. In order to accomplish this end, the students will participate in a panel discussion. Prior to the onset of this activity, the teacher should provide background information on surrogate motherhood. (See Appendix A: Background Information)
As students enter the room, instruct them to get out last night's homework. Quickly circulate and use a distinctive marker to put a check on completed work (or mark in gradebook that assignment was completed). Go over each question on homework, working toward reaching a consensus about the national policy. Instruct students to do part II on last night's homework sheet.
APPENDIX A: BACKGROUND INFORMATION
A woman who gestates a fetus for someone else is called a surrogate mother. Several new reproductive technologies have made the possibility of surrogate motherhood a reality. In vitro (from the Latin, "in glass") fertili-zation enables two people to conceive a child without physical contact. The egg is retrieved from the woman either surgically or vaginally with the assis-tance of laparoscope or ultrasound. The mature eggs are either produced as a result of a woman's natural ovulation or by using drugs or hormones to induce ovulation. (OTA, 123) The eggs may come from the wife of the couple, from the surrogate herself, or from another donor. The sperm may come from the husband of the couple or from another donor. The child usually receives at least one-half of its genetic material from one of the child-seeking parents. Alternatively, fertilization may occur in vivo, within the body of the rearing mother or the surrogate. Accomplishing a pregnancy within the surrogate's uterus requires one or more of the following new reproductive technologies: embryo transfer, zygote intrafallopian transfer (ZIFT), artificial insemination, gamete intrafallopian transfer (GIFT), or freezing of the embryo. For more information on these technologies, see "Gift of the Gods or Pandora's Box?" by Sherry Yarema.
Types of Surrogacy
Surrogacy may be undertaken voluntarily, without compensation other than care expenses. In many of these cases, the motivation is altruistic due to a familial relationship or close friendship with the couple seeking a child. Other voluntary surrogates are motivated by "compassion, curiosity, or the desire to experience pregnancy without responsibility for the results. " (McDowell, 53) These arrangements do not engender much discussion. Many people opposed to commercial surrogacy, for the reasons outlined below, may accept this form of surrogacy. However, very few surrogates are willing to carry a child for someone else in the absence of payment. Hence the notion of commercial surrogacy arises. In these arrangements, the surrogate mother receives payments ranging from $5,000 to $50,000.
Genetic reasons to use surrogate: Woman has a dominant disorder, carries an x-linked disorder, or both parents are carriers of a recessive disorder. American College of Obstetricians and Gynecologists: Recommended that doctor should screen couple and surrogate; discuss risks and benefits; not receive financial gain other than usual fee for services; not participate if financial exploitation of surrogate or couple is possible. Suggested that surrogate mother should have final consent for care and intervention. (Shannon, 73)
Churches: Catholic church firmly against all forms of surrogacy because it is "contrary to the unity of marriage and to the dignity of procreation of the human person." (Shannon, 160) Denominations other than the Christian Scientist and Reform Jewish are against surrogacy (OTA, 364) because of the disruptive effect on the family unit and the bonds of marriage.
State of the Law
Choice of law provisions: Outcome of surrogacy cases depends on which court hears the case and which state laws apply (OTA, 278). U.S. Constitution explicitly gives state legislatures the responsibility for framing health policy. States have the authority to protect public health and the power to regulate family relations including marriage, divorce, and marital duties. This has been interpreted as giving authority to the state governments to regulate reproductive techniques.
American Bar Association: recommends uniform treatment throughout U.S.; surrogacy as an option for married couples with infertile wife; up to 180 days after conception the surrogate mother can cancel the contract; after 180 days the child belongs to the married couple.
Most states do not allow commercial surrogacy, but do allow voluntary surrogacy, though contracts are not enforceable (OTA, 281).
Minnesota: criminal offense to enter or arrange surrogacy contracts.
Nevada: surrogacy approved with conditions (pre-insemination, court-approved agreement contingent upon fertility states of both women and clear-ance through the State Welfare Division; also court maintains jurisdiction until child is six months old).
New Jersey: not illegal, but contracts are unenforceable.
APPENDIX B: STUDENT MATERIALS
Recording Secretary:______________________________________________ Group Members: Our group represents/consists of _________________________________
Discuss surrogate motherhood and come up with a national policy for the regulation and legality of surrogate motherhood.
A NATIONAL POLICY ON SURROGATE MOTHERHOOD
Write an essay addressing the following questions:
Write one to two paragraphs in support of or against the class decision. Be sure to provide reasons why you agree or disagree with the class policy.
[To the teacher: the following sections are the views and considerations of the various interest groups. Each section should be placed into a separate envelope which will go inside the group folder. The group folder will also contain one "Group Worksheet." Also included is a list of general considerations that you may include in addition to, or in place of, the specific lists of considerations for each interest group.]
Lawyer for Surrogacy-seekers
"If there is no national policy, people will simply go to the state with the least restrictive law."
"Should only married couples be allowed to use surrogates? What about single men? Or single, infertile women?"
"How can I be sure the surrogate carries out her promise to give up the baby?"
"We're doing a real service to these couples by finding them a woman who will carry their child: We deserve to be paid for our work."
"We want to avoid custody battles between the surrogate mother and the married couple."
"Somehow we have to make sure the surrogate does all she can to deliver a quality product for our clients."
"Who is responsible if the surrogate dies due to pregnancy or child birth? If the baby is defective in some way?"
"Does the wife of the couple seeking a surrogate have to give her consent for the surrogate to carry her husband's child?"
"Surrogacy provides us with a child we otherwise couldn't have."
"We've tried to adopt, but unless we wait five years all the children are older, the wrong color or have a mental or physical defect."
"If my husband doesn't have a son, his name will go to the grave with him."
Wife: "I'm afraid my husband would leave me if I didn't allow him to have a child by a surrogate-this is really important to him."
"We carry a genetic disorder that we don't want our child to inherit. "
"These women are performing a valuable service to us."
"I can't take time out from my career to bear a child."
"A husband has a right to carry on his bloodline."
"What if she changes her mind? Would my/her husband have a financial responsibility to the child?"
"We can't have a child because my wife has a handicap (or some other physical problem that would make it impossible to bear a child)."
"Surrogacy provides me with an income I otherwise wouldn't have."
"I'd rather be exploited than starve or have my children starve."
"I'm helping this couple by giving them a baby of their own to love."
"I feel so good when I'm pregnant-people pay more attention to me."
"I'm worried about what my husband and other children will feel when I give the baby away."
"Throughout the pregnancy, I could feel the child moving within me, heard his heartbeat, saw him on the sonogram. It was really hard to give him up."
"I don't want anyone telling me what I can do, eat or drink and when I have to go to the doctor. The baby will turn out fine no matter what I do."
"What if I change my mind and want to keep the baby?"
"What if the couple change their mind?"
"Can they force me to abort the fetus if it is defective or the wrong sex?"
"What if there is something wrong with the baby when it is born?"
"What if I change my mind and want to get an abortion?"
"Can we pass laws that do not allow women to control their own bodies?"
"Do infertile couples have the right to use the gametes or bodies of others?"
"Surrogate arrangements are based on principles of contract and family law and so remain under the domain of state laws."
"Maybe we should fund research to find out about the effects of surrogacy on the family of the surrogate, the adoptive couple and society."
"Could we coordinate state laws so that people won't just go the state with a law that lets them do as they please?"
"Should we work on international agreements to make sure women in other countries are not exploited?"
"We must support people's right to govern themselves and create children."
"A man has a right to carry on his bloodline."
"Surrogacy is not unjust to the poor-it does not take anything from them or hurt them."
"The ability of a woman to reproduce should not be a commodity that can be bought and sold."
"What are the consequences to society of allowing surrogacy?"
"A busy career woman can't always take the time and energy from her work to bear a child."
"Must a woman give up her nature as woman in order to be treated equally?"
"Are women to be viewed as whole persons or as vehicles for bearing children?"
"Women agree to be surrogates because they are consistently underpaid and defined by their ability to reproduce."
"A woman has a right to do as she wishes with her body."
"Nobody should be allowed to enslave herself no matter what."
"Can we restrict a woman's behavior and diet and require her to submit to medical treatments on behalf of the fetus?"
"A wife might feel she has to agree to find a surrogate if her husband really wants a child that is partly his."
"Poor women (here or in other countries) could feel, in effect, "forced" to become surrogates if they saw no other way to provide for their families."
"I would want to perform available prenatal screening tests to be sure the child is okay."
"In order to ensure a "good" baby, the mother must avoid all drugs and alcohol, eat a well-balanced diet and get plenty of exercise and rest."
"Could the surrogate abort the fetus if it was defective, or if she became too ill, or something happened to the couple who wanted the baby?"
"What happens if the surrogate drinks, smokes or does drugs and the baby is defective as a result?" (How do you determine if the defect is due to the mother's behavior?)
"Surrogacy allows a couple to bear children who have a genetic link to them."
"If one or both of a couple carry a genetic disorder, they could still have a child who is partially theirs."
"Should the surrogate mother undergo genetic screening?"
"Surrogacy is a 'treatment' or solution to female infertility."
"Who is responsible if the baby is born defective?"
"Can doctors make extra money by arranging surrogate situations?"
"Who makes final decisions about medical care and treatment of the surrogate?"
"What are the effects on child and mother of removing the baby from its mother at birth?"
"Bringing a third person into a marriage in order to create a child disrupts the family structure."
"Couples must accept God's will."
"The Bible has two examples where a surrogate was used because a wife could not bear her husband a son. In one of these, the surrogate eventually ends up with the child."
"Surrogacy depersonalizes motherhood and women."
"Surrogacy is a form of adultery."
"It offends the dignity of the child and can set up divisions within a marriage." "Using a surrogate womb is to treat the body as a mere incubator and destroy the meaning of the bond of love and procreation."
"Children should not be commodities to be bought and sold."
Children born as a result of surrogacy
"Would I exist if my parents hadn't chosen a surrogate?"
"How does it feel to be sold at birth?"
"I would possibly have had (sickle cell anemia, Tay-Sachs, PKU, Huntington's Disease, etc.) if I was a product of both my mom and dad."
"My parents violated my right to be conceived, born and raised by my natural parents."
"I'll always wonder who my 'real' mom is."
"My parents really wanted me."
Should surrogacy ever be allowed?
Who should/may be a surrogate?
Should payment be allowed? (to surrogate, to lawyers?)
What limits should be placed on surrogate during pregnancy in regard to required medical care and procedures, diet, behavior?
Under what conditions may a couple employ a surrogate?
Should the couple seeking the surrogate undergo any type of screening?
What qualifications/ characteristics should be required of the surrogate?
Does the surrogate have the right to terminate the pregnancy?
Does the surrogate have the right to change her mind? Any limits on this?
"American Bar Association Outlines Plan for Legalization and
Enforcement of Surrogacy Contracts." Charo, R. Alta. "Problems in Commercialized Surrogate Mothering.:
In Embryos, Ethics and Women's Rights, edited by Elaine Hoffman
Bauch, Amadeo F. D'Adamo, Jr. and Joni Seager, New York: Harrington Park
Corea, Gena. The Mother Machine. New York: Harper and Row,
Downe, Susan. Baby Making: The Technology and Ethics.
London: The Bodley Head, 1988.
Field, Martha A. Surrogate Motherhood. Cambridge, Mass.:
Harvard University Press, 1990.
Greenhouse, Steven. "Surrogate plans banned in France."
New York Times 2 June 1991: 12N.
Hanley, Robert. "Jersey Panel Backs Limits on Unpaid Surrogacy
Pacts." New York Times 12 March 1989: 38L.
Hiskes, Anne L. and Richard P. Hicks. Science, Technology and Policy
Decisions. Boulder: Westview Press, 1986.
Holtzman, Neil A.. Proceed With Caution. Baltimore: Johns
Hopkins University Press, 1989.
Keane, Noel P. The Surrogate Mother. Cambridge, Mass.:
Harvard University Press, 1990.
Matheson, William. "Germany's New Genetic Laws." Wall
25 October 1990: A16.
McDowell, Janet Dickey. "Surrogate Motherhood." In
Questions About the Beginning of Life, edited by Edward D. Schneider,
Minneapolis: Augsburg Pub. House, 1985.
"Nevada Bill to Legalize Surrogate Motherhood Agreements."
New York Times 30 May 1989: A18.
Nsiah-Jefferson, Laurie. "Reproductive Laws, Women of Color and
Low-Income Women." In Reproductive Laws For the 1990s,
edited by Sherrill Cohen and Nadine Taub, Clifton, New Jersey: Humana Press,
Office of Technology Assessment. Infertility: Medical and Social
Choices. Washington, D.C.: U.S. Government Printing Office, 1988.
Overall, Christine. Ethics and Human Reproduction. Boston:
Allen and Unwin, 1987.
Shannon, Thomas A.. Religion and Artificial Reproduction.
New York: Crossroad, 1988.
Whitehead, Mary Beth. A Mother's Story. New York: St.
Martin's Press, 1989.
Charo, R. Alta. "Problems in Commercialized Surrogate Mothering.: In Embryos, Ethics and Women's Rights, edited by Elaine Hoffman Bauch, Amadeo F. D'Adamo, Jr. and Joni Seager, New York: Harrington Park Press, 1988.
Corea, Gena. The Mother Machine. New York: Harper and Row, 1985.
Downe, Susan. Baby Making: The Technology and Ethics. London: The Bodley Head, 1988.
Field, Martha A. Surrogate Motherhood. Cambridge, Mass.: Harvard University Press, 1990.
Greenhouse, Steven. "Surrogate plans banned in France." New York Times 2 June 1991: 12N.
Hanley, Robert. "Jersey Panel Backs Limits on Unpaid Surrogacy Pacts." New York Times 12 March 1989: 38L.
Hiskes, Anne L. and Richard P. Hicks. Science, Technology and Policy Decisions. Boulder: Westview Press, 1986.
Holtzman, Neil A.. Proceed With Caution. Baltimore: Johns Hopkins University Press, 1989.
Keane, Noel P. The Surrogate Mother. Cambridge, Mass.: Harvard University Press, 1990.
Matheson, William. "Germany's New Genetic Laws." Wall Street Journal 25 October 1990: A16.
McDowell, Janet Dickey. "Surrogate Motherhood." In Questions About the Beginning of Life, edited by Edward D. Schneider, Minneapolis: Augsburg Pub. House, 1985.
"Nevada Bill to Legalize Surrogate Motherhood Agreements." New York Times 30 May 1989: A18.
Nsiah-Jefferson, Laurie. "Reproductive Laws, Women of Color and Low-Income Women." In Reproductive Laws For the 1990s, edited by Sherrill Cohen and Nadine Taub, Clifton, New Jersey: Humana Press, 1989.
Office of Technology Assessment. Infertility: Medical and Social Choices. Washington, D.C.: U.S. Government Printing Office, 1988.
Overall, Christine. Ethics and Human Reproduction. Boston: Allen and Unwin, 1987.
Shannon, Thomas A.. Religion and Artificial Reproduction. New York: Crossroad, 1988.
Whitehead, Mary Beth. A Mother's Story. New York: St. Martin's Press, 1989.