Revisiting child-based objections to commercial surrogacy

Bioethics

Volumn 24, Issue 7, 2010, Pages 341-347

  Hanna, Jason K M ^a  

^a NORTHERN ILLINOIS UNIVERSITY   (United States)

Author keywords

Adoption; Bioethics; Motherhood; Parental rights; Reproduction; Surrogacy

Indexed keywords

ARTICLE; BIOETHICS; CHILD; CHILD WELFARE; COMMERCIAL PHENOMENA; CONTRACT; ETHICS; FEMALE; HUMAN; MOTHER; ORGANIZATION AND MANAGEMENT; PARENT; PREGNANCY; REPRODUCTIVE RIGHTS; WOMEN'S RIGHTS;

BIOETHICAL ISSUES; CHILD; CHILD WELFARE; COMMERCE; CONTRACTS; FEMALE; HUMANS; OWNERSHIP; PARENTS; PREGNANCY; REPRODUCTIVE RIGHTS; SURROGATE MOTHERS; WOMEN'S RIGHTS;

EID: 77956003614     PISSN: 02699702     EISSN: 14678519     Source Type: Journal    
DOI: 10.1111/j.1467-8519.2010.01829.x     Document Type: Article

References (43)

1. For recent discussions of surrogacy's problematic effects on the surrogate.
2. J. Damelio & K. Sorenson. Enhancing Autonomy in Paid Surrogacy. Bioethics 2008; 22: 269-277.
3. S. Berkhout. Buns in the Oven: Objectification, Surrogacy, and Women's Autonomy. Soc Theory Pract 2008; 34: 95-117.
4. By contrast, many ethicists argue that even if surrogacy wrongly exploits women, we may have insufficient grounds for prohibition.
5. S. Wilkinson. The Exploitation Argument against Commercial Surrogacy. Bioethics 2003; 17: 169-187.
6. A. Wertheimer. Two Questions about Surrogacy and Exploitation. Philos Public Aff 1992; 21: 211-239.
7. The child-selling objection was raised by the New Jersey Supreme Court in the Baby M case. (Supreme Court of New Jersey. 1988. In the Matter of Baby M. 109 NJ 396, 537 A.2d 1227.) According to one recent US legal commentator, '[g]etting around the 'baby-selling' objection to surrogacy arrangements will likely be the greatest challenge for a legislature passing a new law legalizing the practice.' (S. Alexander. Who is Georgia's Mother? Gestational Surrogacy: A Formulation for Georgia's Legislature. Georgia Law Rev 2003; 38: 395-428: 415, n. 156.)
8. M. Brazier, M.A. Campbell & S. Golombok. 1998. Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation. London: Department of Health. Available at: http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4014373.pdf [Accessed 26 Oct 2009].
9. M. Meyer. The Idea of Selling in Surrogate Motherhood. Public Aff Q 1990; 4: 175-188.
10. E. Anderson. Is Women's Labor a Commodity? Philos Public Aff 1990; 19: 71-92: 76.
11. R. Arneson. Commodification and Commercial Surrogacy. Philos Public Aff 1992; 21: 132-164
12. R.J. Kornegay. Is Commercial Surrogacy Baby-Selling? J Appl Philos 1990; 7: 45-50
13. I. Davies. Contracts to Bear Children. J Med Ethics 1985; 11: 61-65.
14. For a defense of limited commercial adoption.
15. E. Landes & R. Posner. The Economics of the Baby Shortage. J Legal Stud 1978; 7: 323-348.
16. M. Radin. 1996. Contested Commodities. Cambridge, MA: Harvard: 140-141.
17. Meyer, op. cit. note 4, 77.
18. M. Roberts. Good Intentions and a Great Divide: Having Babies by Intending Them. Law Philos 1993; 12: 287-317.
19. R. Tong. The Overdue Death of a Feminist Chameleon: Taking a Stand on Surrogacy Arrangements. J Soc Philos 1990; 21 no. 2-3: 40-56.
20. Brazier et al., op. cit. note 3, 38.
21. For somewhat similar examples that do not involve reproduction, see Kornegay, op. cit. note 6.
22. Roberts, op. cit. note 9.
23. The most influential discussion of the non-identity problem is in D. Parfit. 1984. Reasons and Persons. Oxford: Oxford University Press. I am indebted to a referee from Bioethics for pointing out the need to respond to this issue.
24. One might argue, for example, that a person can be harmed even if she is not made worse off than she otherwise would have been.
25. M. Hanser. Harming Future People. Philos Public Aff 1990; 19: 47-70.
26. I am thus willing to accept the following conditional claim: If the prospective mother's drug-taking does not harm her child (or anyone else), then it is morally permissible.
27. D. Boonin. How to Solve the Non-Identity Problem. Public Aff Q 2008; 22: 127-157.
28. Roberts, op. cit. note 9, 297, emphasis added.
29. This analogy also shows how the argument offered in Section 2, above, can avoid an apparent problem. Suppose that a woman enters into an odd commercial adoption contract that requires her to relinquish one of her four existing children but does not specify which child she must give up. In this case, it appears that the woman has sold parental rights without selling parental rights over a particular child. But there is still an important difference between the odd adoption contract and the surrogacy contract. Compare a contract requiring a painter to relinquish any one of four existent paintings, on the one hand, with a commission to create a new painting, on the other. While the former does involve the sale of a painting, the latter does not. As this comparison suggests, the difference between a surrogacy contract and the odd adoption contract is that the surrogate does not have any parental rights to sell; like the painter who accepts the commission, she sells only her labor. I am indebted to a referee from Bioethics for bringing the odd adoption contract example to my attention.
30. For a somewhat similar point about gamete donation
31. T. Bayne. Gamete Donation and Parental Responsibility. J Appl Philos 2003; 20: 77-87.
32. Some argue that parental rights and obligations are acquired by those who, by performing certain types of acts, cause the child's existence.
33. J.L.Nelson. Parental Obligations and the Ethics of Surrogacy: A Causal Perspective. Public Aff Q 1991; 5: 49-61. Since the surrogate's causal contribution is her reproductive labor, the argument offered above would apply to the causal view, as well.
34. J.L. Hill. What Does It Mean to be a 'Parent'? The Claims of Biology as the Basis for Parental Rights. N Y Univ Law Rev 1991; 66: 353-420. According to Hill, if no one intends to raise the child prior to its conception, the genetic parents have parental rights.
35. Anderson, op. cit. note 5, 76. See also Radin, op. cit. note 8.
36. Tong, op. cit. note 9.
37. Arneson, op. cit. note 6.
38. Roberts, op. cit. note 9.
39. For a defense of the genetic view
40. D. Benatar. The Unbearable Lightness of Bringing into Being. J Appl Philos 1999; 16: 173-180. For a defense of the causal view, see Nelson, op. cit. note 18.
41. Roberts, op. cit. note 9.
42. Nelson, op. cit. note 18, 60. See also Tong, op. cit. note 9.
43. For a different objection to Nelson, see Bayne, op. cit. note 17.