THE HUMAN LIFE REVIEW, The Perils of Surrogacy
By Rachel Lu
September 28, 2014
The goal posts keep moving in the legal limbo surrounding artificial human reproduction. We’ve finally reached the point where the American public is starting to take notice, as evidenced by a recent New York Times story on foreign couples who come to the United States to hire surrogates to carry their children. With surrogacy illegal in most Western countries, the United States has become the most attractive destination for wealthy foreign couples looking to obtain a baby through third-party reproduction.
With legislation varying significantly from state to state, so-called “intended parents” must engage in some research to find the kind of legal support that would enable them to commission a baby, confident that the state will give them a significant measure of control over the process. Some states (notably Michigan) still ban surrogacy, while others permit it under “altruistic” conditions, meaning that the birth mother can be compensated only for pregnancy-related expenses. Other states, such as California, have embraced surrogacy as a commercial transaction, allowing a woman to gestate for money while assuring intended parents that the law will back their contractual claim should their surrogate have second thoughts about surrendering the infant postpartum.
Accordingly, the debate about surrogacy takes place on multiple fronts at the same time. Last June, Governor Bobby Jindal was subject to withering criticism when he vetoed a bill that had easily passed the Louisiana state legislature. Although it did not permit commercial transaction, if enacted the law would have provided a legal structure for altruistic surrogacy. This was the second time in two years that Jindal vetoed such a bill. There can be little doubt that surrogacy supporters will try again.
This is only the latest development in what is certain to be an ongoing struggle. Although it is not precisely new, third-party reproduction represents a significant threat to the dignity of women and especially children. Owing to a variety of technological and social changes, the pressures to bring third-party reproduction into the mainstream, along with legal support and perhaps even financial subsidy, are certain to increase.
New Pressures in Third-party Reproduction
For those not familiar with the term, “third-party reproduction” can describe any situation in which a person deliberately contributes an essential ingredient (either genetic or gestational) to the life of a child, without intending to act as a parent in the child’s upbringing. Third-party reproduction could involve sperm donation, ova donation, embryo donation, or the enlisting of a surrogate to carry a child she does not intend to raise.
Humans have always realized, of course, that it is possible to help beget a child without contributing to the parenting effort. One could argue that there are Biblical examples of third-party reproduction, as, for example, in the Book of Genesis when Leah and Rachel (the wives of Jacob) offer their handmaidens to their husbands in their stead, with the understanding that the wives would have some parental-type relationship to the resulting children. (At the same time, it should be noted that the natural mothers of these children are also part of the family, and are remembered in the genealogical records. Their maternity cannot simply be overridden by their mistresses’ whim.) From ancient times, there has always been a good measure of sympathy for those who desperately desire children and are unable to have them. This generous impulse moves many people today to support third-party reproduction as a means of helping the infertile fulfill their parental dreams.
Generous motivations do not guarantee happy endings, however. Significant social changes almost always have complex ramifications, and so it will be with third-party reproduction. So far it has been a relatively fringe phenomenon. But we are now moving rapidly towards a new threshold, beyond which third-party reproduction could fundamentally transform the way we think about parenthood and family. This transition could pose a far graver threat to human dignity than any of the fertility practices we have seen to date.
It’s only relatively recently that the relevant technologies have become available and (moderately) affordable for ordinary couples. Although artificial insemination is comparatively uncomplicated, in-vitro fertilization (IVF) has opened up whole new vistas when it comes to third-party reproduction. It is now possible, for example, for any couple to employ a woman to carry a child to whom she is not biologically related. It is likewise possible for a woman whose eggs are not viable to combine her husband’s sperm with another woman’s ovum, and then gestate the child herself. With IVF, any viable sperm, ovum, and hospitable womb can be used to produce a child—without the necessity of sexual intercourse. At this point the rate of success is still well shy of 100%. Even so, this is a game-changer in the world of third-party reproduction.
The game is changing on social fronts as well. These days, more and more married couples are struggling with infertility. There are a number of reasons for this. One is a rise in fertility-related diseases like endometriosis. Another is a move towards late marriage, as young people increasingly wait until their late twenties or thirties before tying the knot. Older couples tend to be less fertile, and by the time these late-marrieds start trying to have children, some are unable to conceive. This has created a sizable market for assisted reproduction.
More significant still is the rise of same-sex marriage. Now that same-sex pairing is widely accepted and even celebrated as an acceptable basis for family formation, homosexual couples increasingly express an interest in raising children. But changing social norms cannot alter the fact that people of the same sex lack the necessary ingredients to make a child together. Some homosexual couples opt for adoption, but our adoption system is messy and filled with pitfalls; moreover, this alternative is at least in principle limited by the number of available adoptive children. Third-party reproduction supplies the reproductive components the couple naturally lacks, thus opening an avenue for family formation that is more firmly under the would-be parents’ control. Advocates for the LGBT community (lesbian, gay, bisexual, transgender) thus praise third-party reproduction as an ideal way of enabling same-sex partners to “become a family.”
As the demand for children is more firmly established, the market predictably adapts. It is now possible to search for human sperm, human eggs, a surrogate, or an assisted-reproduction lawyer all from the comfort of your home laptop. At present, gestational surrogacy is still prohibitively expensive for many people, costing at least $60,000 and sometimes much more. Uncertainties in the legal climate also deter many from pursuing this option. Medical costs create additional controversy, since insurance companies are predictably unhappy when they are asked to underwrite the medical expenses for women who gestate for money.
In short, third-party reproduction is still subject to a host of sticky financial and legal issues. These, however, are the sorts of disputes that can be ironed out over time. Should that happen, the Western world is poised to enter a new era in which parenthood is almost entirely unshackled from the realities of human fertility. It may soon be common practice for children to be made to order for any person or combination of persons, according to their specifications and on their preferred timetable. Most unsettling of all is the fact that the United States is in the vanguard of this new development, poised to cross yet another threshold in the area of family formation. The moral ramifications could be enormous.