Christine Overall insists that the well-being of children born of “surrogacy” arrangements should be of paramount importance and, most certainly, should take precedence over the wants of prospective parents. This commentary was initially posted on July 18, 2013 on the Impact Ethics blog and is reposted here with permission of the author. Visit impactethics.ca
“Surrogacy” is not illegal in Canada; paying or offering payment to a “surrogate” mother is. According to Section 6 (1) of the Assisted Human Reproduction Act (AHCR Act), “No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.” This prohibition notwithstanding, the plan is to permit reimbursement for legitimate (receipted) expenses. Section 12 (1) of the AHR Act stipulates, “No person shall, except in accordance with the regulations, … (c) reimburse a surrogate mother for an expenditure incurred by her in relation to her surrogacy.” As the relevant regulations have not been crafted, this exception to the legal prohibition is not yet in force. Meanwhile, there are many media reports of cases of paid and altruistic “surrogacy” in Canada (click here for more information).
I use the words “surrogate” and “surrogacy” because they are the familiar terms used in cases where an individual or a couple hires a woman to gestate a child using the man’s (and sometimes the woman’s) gametes. However, I put “surrogate” and “surrogacy” in quotation marks to signal my scepticism about the appropriateness of the terms. A woman who gestates a baby for a commissioning couple or individual is a genuine mother: She is a gestational mother and (where an ovum is not provided to her) also a genetic mother to the infant whom she creates.
I have long argued that “surrogate” motherhood results in baby-selling (Overall 1993). Money changes hands; a baby is acquired; and above all, no effort is made to evaluate the parenting capacities of the prospective social parent(s), who are simply given the infant. The baby is like a commercial product that is bought and sold, with no attention to its wellbeing. The mere fact that the prospective social father provides the sperm and that (in some cases) the prospective social mother’s ovum may be used to create the infant does not give them an automatic entitlement to the infant; nor does it magically endow them with the ability to be good parents. In these cases a child changes hands, from the woman who gestates it to those who intend to raise it, without any reference to the baby’s own best interests. The exchange is primarily, and often entirely, a commercial transaction.
Now, in cases where the law is strictly followed in Canada, “surrogacy” does not literally involve the selling of a baby, although I would argue that “surrogacy” still results in baby-selling in much of the world. But what all cases of “surrogacy,” both Canadian and international, still have in common is an apparent indifference to the interests of the baby who is created. Unlike prospective adoptive parents, the prospective social parents of a child created through “surrogacy” are not screened. Because the infant is genetically related to one or both of the intended social parents, it is assumed that there is no need to evaluate the prospective social parents. Even in the case of so-called altruistic “surrogacy,” the focus is on what the intended parents want, not on the wellbeing of the baby, and not on their parental skills, experience, and knowledge, if any.
The question, then, is whether there is any way to preserve the practice of “surrogacy” while eliminating the current egregious indifference to the wellbeing of the children created. The answer, I suggest, lies in the compulsory screening and licensing of the prospective parents.
The reasons for parental licensing have been well-identified in the philosophical literature. They include the extreme vulnerability, dependence, and neediness of children; the requirement for competence, good practices, and knowledge on the part of parents; and the potential for great harm when parenting is inadequate. Licensing is routinely required for prospective adoptive parents.
Cases where prospective parents obtain a child by hiring a so-called “surrogate” mother are arguably very similar to cases of adoption. In both adoption and “surrogacy” there is a transfer of responsibility for the child from the genetic mother to the prospective parents; this transfer warrants the screening and licensing of all such prospective parents.
Most prospective parents in “surrogacy” cases might pass, but some might not. Genetic relatedness does not automatically confer parental entitlement or competence; hence, the prospective parents of a child created through “surrogacy” should not be presumed, without evidence, to be good parents. The mere fact of being genetically connected to one’s offspring does not make one automatically entitled to be a social parent and raise the child. Nor does genetic connectedness automatically make one a good parent, or give a person the capacity to provide the care that a child needs. Thus, if screening and licensing were applied in cases of “surrogacy,” then one of the most morally objectionable features of “surrogacy”—its indifference to the interests of the baby—would be obviated. The well-being of the infant should be paramount—just as it is in cases of adoption.
Christine Overall, FRSC
Professor of Philosophy and Queen’s University Research Chair
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I certainly agree with the sentiments expressed by Ms Overall, but am unsure that her answer is practical.
Commercial surrogacy is illegal here in NSW, as is seeking a surrogate outside our jurisdiction, and the ban is already leading to some pretty perverse responses from prospective parents and authorities alike.
The main problem is that when couples come back from overseas with their ‘black market baby’ it becomes pretty difficult to respond in any way that is in the best interest of the child – other than just turning a blind eye. So the laws are essentially a joke.
I can see parents who fail to pass surrogacy checks just doing the same thing prospective parents of such children are doing now in NSW.
It seems to me that adoption checks are more about protecting the agency from liability than protecting the child. And of course, having a child in the usual way is no guarantee of fitness for parenthood either.
Making the bar higher for adoptive and surrogative (?) parents is not only inconsistent, it lends weight to the arguments of those who would seek to dictate who should be a parent under any circumstances (I am an Australian Aborigine and my family suffered under the policies that led to the Stolen Generations. There is currently another stolen generation in the offing due to the wave of false white liberal propaganda to the effect that Aboriginal communities are hotbeds of child abuse.)
I too am very concerned about the commodification of children that comes with commercialised surrogacy. In fact almost all commercialisation of fertility makes me uneasy. But I think we need to find responses more sophisticated than that proposed by Ms Underhill. Unfortunately they would have to be too sophisticated for the likes of me to work out.
cabrogal, I’m not sure who Ms. Underhill is. Do you mean Professor Overall? Or this is humour rather than a mistake? You deliberately sought to deflate an academic ego by changing her title and her last name? Perhaps made tempting by the last name she happens to have?
I fear we are discussing closing the barn door after the cattle have left, but the discussion is worth having. I disagree with compulsory licensing for parents: in a perfect world where state power were not readily co-opted by the forces of classism, sexism and other forms of enforcing gender/sexual/relational norms, and racism, such a policy may be defensible. We don’t live in that world. Compulsory licensing of parents would be a tool of the state against the poor and already marginalized–an ever-present danger with the more limited systems we have devised to protect child welfare.
However, I agree with Dr. Overall that an under-examined (apart from her excellent work) aspect of “surrogacy” practices as they have developed is that we have entered an era of de facto buying and selling of children: parenthood for those who can afford it–in an era of widening socioeconomic inequalities. Apart from being problematic for children (buying and selling suggesting indifference to their welfare), it’s problematic for justice—for parents and would-be parents.
If we hadn’t abandoned assisted reproduction in general to the private sector, if we genuinely believed that it could be an act of social solidarity to help people create the families they want (financially through health insurance coverage; somatically through the labour of surrogates), surrogacy could proceed on the model of adoption. There remains much to be said about the scope of and rationale for differential treatment of “natural” and adoptive parents. I believe a principled distinction can be made, but I have certainly heard strong arguments against the distinction. It could be derived from the responsibility of stewards of the system; it could be derived from how the balance of well-being of children and state intrusiveness differs in this case from what it is in “natural” parenthood.
(I say “co-opted” as though state power were circulating in the world in all innocence and only came into consort with other kinds of power through being overwhelmed by unwelcome advances. Not an accurate form of expression.)