Enhancing autonomy in paid surrogacy

Bioethics

Volumn 22, Issue 5, 2008, Pages 269-277

  Damelio, Jennifer ^b   Sorensen, Kelly ^a  

^a URSINUS COLLEGE   (United States)

^b UNIVERSITY OF PITTSBURGH   (United States)

Author keywords

Contract pregnancy; Surrogacy; Surrogate motherhood

Indexed keywords

BIOETHICS; DECISION MAKING; ETHICS; FEE; FEMALE; HUMAN; LEGAL ASPECT; MOTHER; PERSONAL AUTONOMY; PERSUASIVE COMMUNICATION; PREGNANCY; PSYCHOLOGICAL ASPECT; REVIEW;

BIOETHICS; COERCION; DECISION MAKING; ETHICAL ANALYSIS; FEES AND CHARGES; FEMALE; HUMANS; PERSONAL AUTONOMY; PREGNANCY; SURROGATE MOTHERS;

EID: 43049094779     PISSN: 02699702     EISSN: 14678519     Source Type: Journal    
DOI: 10.1111/j.1467-8519.2008.00629.x     Document Type: Review

References (33)

1. Supreme Court of New Jersey. 1988. In the Matter of Baby M. 109 NJ 396, 537 A.2d 1227.
2. B. Steinbock. Surrogate Motherhood as Prenatal Adoption. Law Med Health Care 1988 16 (1 44 50.
3. The term was originally used in the context of international law for codes which have little or no binding force. Here we use it as a term for binding, enforceable laws that mandate some performance or activity in order for one to obtain a certain legal permission. We describe soft law further below.
4. The contractor may be a single person instead; but for simplicity, and since the majority of arrangements involve couples, we will use the term for the more common type of case.
5. J.K. Ciccarelli J.C. Ciccarelli. The Legal Aspects of Parental Rights in Assisted Reproductive Technology. J Soc Issues 2005 61 (1 129.
6. S.A. Ketchum. 1992. Selling Babies and Selling Bodies. In Feminist Perspectives in Medical Ethics. H.B. Holmes & L.M. Purdy, eds. Bloomington & Indianapolis: Indiana University Press: 290.
7. H.M. Malm. 1992. Commodification or Compensation: A Reply to Ketchum. In Feminist Perspectives in Medical Ethics. H.B. Holmes & L.M. Purdy, eds. Bloomington & Indianapolis. Indiana University Press: 297.
8. Ibid.
9. Ibid: 297.
10. L. M. Purdy. Surrogate Mothering: Exploitation or Empowerment? Bioethics 1990 3 (1 24 26.
11. Although our concern in this paper is with the surrogate herself, issues about child welfare are deservedly the focus of much work on surrogacy. We don't presume to answer all the concerns about the exploitation, commodification, and well-being of the child. For a collection of concerns about child welfare, see M. Brazier, M, A. Campbell, & S. Golombok. 1998. Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation. Report of the Review Team. London: Department of Health: 29-38. We do note that, as the Brazier Report speculates, enhancing surrogacy autonomy may lower some of the risk of psychological harm to the child.
12. One new concern that surrogacy does present is this: adoption involves relinquishing an existing child, while surrogacy involves payment for the creation of a future child. Our thanks to an anonymous referee for emphasizing this point.
13. K. Oliver. 1992. Marxism and Surrogacy. In Feminist Perspectives in Medical Ethics. H.B. Holmes & L.M. Purdy, eds. Bloomington & Indianapolis: Indiana University Press: 268.
14. Ibid.
15. Ibid.
16. Ibid: 275.
17. Kelly Oliver claims that surrogacy belongs in an especially invidious category of alienated labour: 'estranged labor.' But Oliver seems unclear about what qualifies certain labour as estranged. Ibid: 274-276. See also G. Corea. 1985. The Mother Machine. New York: HarperCollins; C. Overall. 1987. Ethics and Human Reproduction. Boston: Allen & Unwin.
18. See the data presented in argument seven below.
19. Supreme Court of California. 1993. Johnson v. Calvert. 851 P.2d 776.
20. S. Dodds K. Jones. Surrogacy and Autonomy. Bioethics 1990 3 (1 1 17
21. J. Oakley. Altruistic Surrogacy and Informed Consent. Bioethics 1992 6 (4 269 287.
22. A. Wertheimer. 1997. Coercion. Princeton: Princeton University Press: 229.
23. J.A. Robertson. Surrogate Mothers: Not So Novel After All. Hastings Cent Rep 1983 13 (5 29.
24. Office of Technology Assessment. 1988. Infertility: Medical and Social Choices. Washington, D.C. Government Printing Office: 273- 274. This is the largest study of gestational surrogates in the USA. The study provides income amounts in 1988 dollars; we have adjusted these to 2005 dollars. There is very little more recent data on surrogate demographics, especially with the large sample size of the 1988 data. A problem with all such data is that it does not include the many surrogacy arrangements that are informal and unrecorded.
25. E.J. Emanuel. Undue Inducement: Nonsense on Stilts? Am J Bioeth 2005 5 (5 9 13
26. N.R. Elster. Assisted Reproductive Technologies: Contracts, Consents, and Controversies. Am J Fam Law. 2005 18 (4).
27. Contracts are not an ideal model for many of the most crucial and intimate of human relationships, as feminist ethicists such as Virginia Held have argued (V. Held. 1987. Feminism and Moral Theory. In Women and Moral Theory. E.F. Kittay & D.T. Meyers, eds. Totowa, NJ: Rowman & Littlefield: 111-128). But we believe that in certain limited domains, including surrogacy, contracts can be autonomy protecting and freedom enhancing.
28. Utah bill S.B. 14, signed into law 16 March 2005.
29. Information in this section on Connecticut's 'Parenting Education Program' is from the following two websites. For the full text of the Connecticut divorce statute outlining the 'Parenting Education Program', see: State of Connecticut General Assembly. Section 46b-69b Parenting Education Program. Hartford, CT: State of Connecticut. Available at: http://www.cga.ct. gov/2005/pub/Chap815j.htm#Sec46b-69b.htm [Accessed 9 Jul 2007]. For further state-issued information on the program, see: State of Connecticut Judicial Branch. 2005. Parenting Education Programs. Hartford, CT: State of Connecticut. Available at: http://www.jud2.state.ct.us/webforms/forms/fm151.pdf [Accessed 9 Jul 2007].The Connecticut program is successful: 'Over 90% rate the course very beneficial in the initial evaluation and two-thirds continue to see benefits from the course six to twelve months later' (Connecticut Council of Family Service Agencies. Parenting Education Program (PEP). Hartford, CT: State of Connecticut. Available at: http://www.ctfsa.org/programs/pep.html [Accessed 9 Jul 2007]).
30. E. Biondi. Legal Implementation of Parent Education Programs for Divorcing and Separating Parents. Fam Concil Courts Rev 1996 34 (11 82 95.
31. There are similar solutions outside the USA context, our focus in this paper. Some states in Australia already use a soft law approach for other assisted reproductive technologies; in Victoria, for example, people who seek IVF treatment are required to obtain pre-treatment counseling about the treatment's risks and benefits. In the UK, the required counseling already provided by the HFEA could be expanded to include surrogate education. (We thank two anonymous referees for these suggestions.)
32. Legal limitations on what contracts can demand of surrogates, and the idea of an opt-out clause that lets the surrogate change her mind about keeping the child, can also help address the vulnerability arguments. But even so, we argue that required surrogacy classes are indispensable: these other approaches are useless if the surrogate doesn't know about them.
33. If they do decide against paid surrogacy, the Baby M case suggests that both the candidate surrogate and the contracting couple will be better off - and fewer children will face the sort of parental limbo that Baby M herself faced.