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Susan R. Lamb
This article explores the ethics of surrogacy and examines categories of arguments pertaining to this issue, among them deontological concerns (objections and justi$cations), consequential concerns (objections and justiJications), contractual issues, and a feminist perspective. Also analyzed are competing alternatives. An overall assessment is provided.
By the action of Modem Industry, all family ties among the proletarians are tom asunder, and their children transformed into simple articles of commerce. -Karl Marx and Friedrich Engels, Manifesto o the Communist Party f
Surrogate motherhood,’ although practiced for centuries? has only recently sought legitimacy. This quest for acceptance has been intensified over recent years due to the effects of two mutually-reinforcing processes: increasing female infertility and a simultaneously declining number of healthy newborns available for ad~ption.~ Surrogacy involves a close and far from comfortable merger of both market and maternal forces. In consequence,events such as the well-publicized Baby ibf debacle seemed destined from the beginning to spark widespread ethical-legal controversy. It is therefore unsurprising that the issue of surrogacy provokes numerous responses. On one extreme, it has been argued that “a contract is a contract,” in much the same sense as any other commercial bargain. On the other, it is often felt that a baby is both personal and sacred and thus should be kept out of the marketplace. Accordingly, and as children are not items of barter, a total ban on surrogacy is advocated. The major concern of this article is to first categorize the various types of ethical arguments raised both in objection to and by way of justification for surrogacy. These arguments are critically evaluated and assessed. Official responses to controversial issues are inevitably both shaped and defined by cultural sensitivitiesand ethical concerns. This ethical framework
Editor’s Note: This article was originally submitted to the First Annual Law School Essay Contest.
FAMILY AND CONCILIATIONCOURTS REVIEW, Vol. 31 No. 4, October 1993 401-424 0 1993 Sage Publications, Inc.
FAMILY AND CONCILIATION COURTS REVIEW
for the assessment of surrogacy therefore serves, in the second part of this article, as a backdrop for an analysis of potential legal approaches to surrogacy. As the surrogacy agreementusually concernsthe unfortunateplight of the childless couple, the issues involved are invariably charged with emotion.’ Although the infertile couple’s plight deserves sympathy, this article asks an important question: Does the end justify the means?
CATEGORIES AND EXAMPLES OF ETHICAL ARGUMENTS PERTAINING TO SURROGACY
For a technique requiring no sophisticated medical or scientific knowledge (let alone biotechnological intervention),’ surrogacy invokes ethical debate of surprising complexity. As a preliminary, it is recognized that many variables can exist within individual surrogacy agreements that might influence opinions as to the desirability of surrogacy as a means for alleviating female infertility. Although this article is generally concerned with the classic instance of surrogacy,8 it is recognized that at least three factors can influence individual perceptions of surrogacy. First, the surrogate mother’s genetic relationship to the child may be an influential factor in the assessment of an individual case. In the vast majority of instances, the surrogate will be impregnated with the commissioning father’s sperm, either by artificial insemination or by natural intercourse. However, in the rare case, such as where in vitro fertilization or embryo transfer is involved, the child is the genetic child of both commissioning parents; the surrogate’s role is therefore purely gestational. Another variable would occur where the surrogate was inseminated with sperm donated by an additional party rather than by the commissioning father. The practical point of impact for the surrogacy arrangement comes if and when the surrogate refuses to relinquish the child to the commissioningparents. In the ensuing custody dispute, the claims of all parties must in some cases be assessed by the closeness of the genetic ties between each claimant and the child. Second, the commissioning mother’s motives for employing a surrogate can similarly affect personal perceptions of the arrangement. Some might condone recourse to surrogacy by a woman physically incapable of either becoming pregnant or carrying a child to full term but be less supportive of a surrogacy arrangement negotiated for social or even cosmeticreasons, such as to avoid major interference with career goals or to maintain a vouthful
or a priori. which could in turn assist in illuminating appropriate legal responses to it. One commonly employed distinction applied to arguments surrounding new birth technologies" comprises two distinct categories: deontological and consequential. it is arguably possible to categorize. As a result. In fact. the difficulties in drawing generalized conclusions as to the practice of surrogacy should not be underestimated. the motive behind the surrogate's participation in the arrangement can be equally important. Accordingly. the individual case of surrogacy contains any combination of variables. with pure financial gain at one extreme and wholly altruistic motives at the other. the objections and justifications often raised in the context of surrogacy. In this regard. consequential arguments judge practices to be right or wrong with reference only to their beneficial or detrimental consequences. most instances of surrogacy appear to fall somewhere between all the extremes mentioned above? Potentially therefore. This assessment would be entirely distinct from analyzingthe consequencesthat would follow from such an acceptance or endorsement of surrogacy. which could in turn affect the legitimacy accorded to that particular agreement.l1 Deontological. At this juncture. In reality. in general terms.'' The terms deontological and consequential are descriptive terms representing a fundamental and generalized distinction between certain types of ethical arguments. By contrast. A judgment. it should be noted that the deontological-consequential distinction is potentially applicable to many of the arguments raised in other sections of this article. as to whether surrogacy is right or wrong would therefore proceed on a principled basis. in these terms. such an attempt at categorizationcan promote a greater clarity in the ethical analysis of surrogacy.Lamb / THE ETHICS OF SURROGACY 403 Third. the deontologicalconsequential distinction should not be considered merely as one category of arguments applicable to the surrogacy context but as an overriding. arguments judge procedures to be right or wrong depending on whether they conform to or transgress some principle. a spectrum is often imagined. generally applicable criteria for the assessment of ethical argument. THE DEONTOLOGICAL-CONSEQUENTIALDISTINCTION Despite the myriad complexities potentially thrown up by an individual case. EXAMPLES OF DEONTOLOGICALOBJECTIONS AND JUSTIFICATIONS Numerousprincipled (a priori) objections and justifications have been put forward as factors that serve either to endorse or condemn the practice of .
’~ obvious counter to this The objection. This section identifies and critically assesses some of these arguments. the so-called “adulterous” nature of surrogacy is open to question. which has traditionally been contentious. this argument is difficult to reconcile with the status and rights of adopted children. One aspect of surrogacy. a distinction can be maintained between surrogacy and adoption on the grounds that adoption deals with the necessity of finding homes for . The moral integrity of sexual intercourse. However. The first a priori objection is that some cases of surrogacy involve a separation of the unitive and procreative elements of sexual interco~rse. In response to this.l~ Moreover. A third principled objection to surrogacy pertains to the status of the child born as a result of a surrogacy arrangement. In consequence. is that it cannot deal adequately with the married couple known to be infertile. certain principled objections have been raised. emerges from its capacity to link loving interpersonal intimacy with an openness to pr~creation.404 FAMILY AND CONCILIATIONCOURTS REVIEW surrogacy. who presumably also suffer from similarly confused genetic and uterine origins. however.16Nevertheless. by the Roman Catholic Church) to be wrong on principle. according to the Catholic Church. although the surrogacy arrangement inevitably involves third parties. l ~ A second objection is that surrogacy agreement inevitably introduces a third party into the marital relationship. is its unique capacity to isolate (and ultimately to reallocate) the various stages and functions involved in procreation.’~ This has traditionally been thought (for instance. in the sense that an injustice is done to the child by introducing confused genetic or uterine origins. Because the surrogacy arrangementis often initiated to relieve the sufferingof infertility. Thus the “unambiguous origins” argument breaks down.the logical extension of this principle is that such couples are obliged to abstain from sexual intercourse for their entire married 1 i ~ e s . Due to the actual inability of the infertile couple to combine the unitive and procreative aspects to sexual intercourse. as sexual intercourse is seen as having an intrinsic human meaning. Arguably however. especially when it is considered that adop tion is not only seen as an accepted practice but a laudable one. It has often been argued that surrogacy entails a violation of a child’s right to unambiguous origins. the marital bond might even be more consolidated by the spouses’ shared commitment to the birth and upbringing of a child.This is seen to entail an unacceptable violation of the marital bond and to pose a threat to the commitment of loyalty between spouses. it does not necessarily threaten the spousal commitment.most Christian and Jewish ethicists hold that the analogy to adultery breaks down because the fertile spouse is usually not sexually intimatewith the gametedonor or ~urr0gate.
Moreover. conditions of infertility can nevertheless be palliated. however. the very existence of such a right to unambiguous origins must itself by highly questionable. surrogacy is not actually curative of infertility in the same way as unblockage of Fallopian tubes or enhanced sperm production could cure the disease. EXAMPLES OF CONSEQUENTIAL OBJECTIONS AND JUSTIFICATIONS Consequentialobjections and justifications in the context of surrogacyare also numerous.As the traditional Western nuclear family is arguably no longer the norm. surrogacy entails the deliberate creation of new life. even if admitting that an infertile woman does have a right to the treatment of her condition. In consequence.*’ In surrogacy’s case. surrogacy could be considered contraindicated. even if surrogacy does do violence to some ‘‘right” to unambiguous origins (or is in fact threatening to the nuclear family). In fact. surrogacy agreements do not (and cannot) restore function and arguably do not serve to educate patients about their condition. In this sense. arguments based on principle can be adduced in support of surrogacy. some types of infertility cannot be cured. When surrogacy is judged according to its detrimental or . For instance. one could legitimately ask why surrogacy is singled out for condemnation. However. the right to employ a surrogate does not necessarily follow. it is difficult to view surrogacy as truly equatable with such a right. it might be inequitable to make such a finding. it can therefore still be indicated as a medical treatment. Because the potential medical risks (pregnancy) all accrue to one party and the potential medical benefits (relief of infertility) to another. even accepting this at face value. First. surrogacy might become a “quick fix” that substitutes for the social initiatives necessary to truly address the issue of infertility. In these instances. the right to employ a surrogate might be equated with a general right of access to health care.Lamb / THE ETHICS OF SURROGACY 405 unwanted or orphaned children.” If surrogacy can legitimately accomplish this goal.’*However. By contrast. bringing with it the suggestion that no such right exists. even for the palliation of infertility?’ In addition. Nevertheless. other practices might also be open to the same criticism.22 fact.= Consequently. increasing numbers of children are born outside of marriage. This is premised on infertility being viewed as having the same treatment priority as any disease or illness. In surrogacy might even deflect social attention away from the root causes of infertility and thus jeopardize attempts to prevent and cure female infertility. On the other side. to equate a right to some form of health care with a right of access to surrogacy arguably requires a quantum leap.
In surrogacycases involving the payment of a fee. There 2~ is no shortage. it seems is for healthy. so too should parents who commission a surrogate be willing to accept a handicapped child born as a result. This is because surrogacy usually involves not only a desire to have a child but a certain type of ~ h i l d . In practice.25 The shortage. Endorsing this quest for “designer children” through the endorsement of surrogacy therefore threatens to lower the standards of tolerance still further and to undermine human diversity?8 Furthermore. One intrinsically feels that it should not be possible to reject a child perceived as defective on the same terms as one would return a faulty piece of merchandise. surrogacy has the potential to permit commissioningparents to delegate the painful or dangerous process of childbirth to a surrogate while reservingthe “pleasurable” aspects (such as rearing the child) for themselves. the questioninevitably raised is “Did I get a good deal?’ This argument is probably nonapplicable to “altruistic” or unpaid sumogacy (or perhaps even to some types of remunerated surrogacy). Nevertheless. seek the assistance . this disappointment could potentially be accentuated in cases where money has changed hands. this concern could be minimized by restricting access to surrogacy only to the infertile couple. minority. who. in a sense. or older children to adopt. the following arguments emerge. “yuppie” parenthood.406 FAMILY AND CONCILIATIONCOURTS REVIEW beneficial consequences(both actual or perceived). Presumably however. surrogacy is often abhorred as it might precipitate undesirable changes in societal attitudes to parenting. however (and especially where money is involved). the demand for healthy White newborns sends a message of rejection and despair to the non-White and the handicapped” and serves to demonstrate society’s racist and elitist preferences. Although it is acknowledgedthat the birth of a handicapped child may cause disappointment (or even rejection) for natural parents also. This raises the concern that surrogacy could diminish the values of caring and parental responsibility and promote careless. It could be argued that just as natural parents must assume certain risks that their children may be born imperfect. First. of handicapped. which could underscore the difficulties involved in making generalizations about surrogacy as a whole. The Malahoff-Stiver controversy is a tragic illustration of the transparency of the motives that can underlie a surrogacy Moreover. people appear to accept only those children for which they bargained. the thought of children being ordered according to specifications is inherently uncomfortable. for instance. white newborns.
it is argued by some that surrogacy should therefore be condemned. the acquisition of a child by means of a surrogacy agreement could in some instances strengthen the marital bond. The Baby M and Malahoff-Stiver cases are often cited as graphic illustrations of the numerous pitfalls inherent within surrogacy. In any event. Second. it is arguably unsafe to rule out a procedure simply on the grounds that sometimesthings go wrong.” The above arguments illustratetwo aspects of the ethical debate surrounding surrogacy. These fears thus transcend the merits or demerits of any individual case and represent generalizedrather than particularizedconcerns. It is unclear. Concerns. Because the practical effects of surrogacy appear to deviate so far from the ideals of its proponents. actual arrangements are often fraught with difficulty and controversy. however. These fears. such as resentment caused by the involvement of a surrogate and fears that the commissioningparents will not “bond” with the child. can nevertheless be marginalized. whether a majority of surrogacy arrangements do in fact end in disaster. By the end of 1986. comparatively few appear to have resulted in highly publicized and protracted litigation. Only the minority of cases that do go wrong tend to attract widespread media attention.Lamb / THE ETHICS OF SURROGACY 407 of a surrogate as a matter of last resort and usually out of a genuine desire to nurture and care for a child. Accordingly. they illustrate how differing types of surrogacy and variables within the individual case can give rise to moral arguments of a greater or lesser complexity. Because childlessness is a potent source of unhappiness. are commonly voiced. Two further concerns are relevant at this juncture. and restriction imposed on surrogacy on this basis alone could therefore call into question many other (legitimate) activities that nevertheless entail some risk to the parties involved. Although it is unfortunate that . about 500 children had been born as a result of surrogacy arrangements in the United States?’ Of these. First. Surrogacy is generally employed as a last-resort technique to alleviate infertility. undue emphasis on these cases serves only to distort an analysis of surrogacy as a whole. they indicate that surrogacy can be perceived as having a potential impact on societal attitudes and patterns as a whole. Certain objections can nevertheless be leveled against this argument. Certain commentators note that even if surrogacy is justifiable in the abstract. the efforts that the commissioning parents have to make to get a surrogacy arrangement operational is such that the resultant child is likely to be very much “wanted. In similar terms. Moreover. surrogacy is often denounced as having a potentially unsettling effect on infertile marriages. though probably not insignificant. in practice. for instance. This is becauserisks inhere in many procedures.
substantial issues of contract law. a typical contract to bear a child will raise.~’ most common “slippery slope” argument in the surrogacy The context is that the practice will lead to undesirable results?’ Accordingly.408 FAMILY AND CONCILIATION COURTS REVIEW the Stiver-Malahoff litigation occurred. assuming hurdles as to capacity and legality are surmounted and a contract is formed.36Several questions need to be answered: Who can contract to obtain a child in this manner? Who should not? Who can be a surrogate and who should not? Would such contracts violate public policy and therefore be void or unenforceable? In addition. they can presumably be guarded against by sensible regulation. from its very inception. indicates simply that surrogacy does have its dangers.38Hence critics of surrogacy describe surrogacy contracts as “the purest form of trafficking in human being^. This objection is simply that if surrogacy is allowed this will lead in turn to other practices that are inherently ~ndesirable. “looks”) being “monetized. they might just as easily be based on assertion and assumption.~~ concern in this context is often whether The a surrogacy agreement contravenes prohibitions (found in probably all jurisdictions) against baby selling. But so long as these dangers are not inevitable consequences of the practice itself. intelligence. The “slippery slope” argument."^' On .” By this it is meant that the market value attracted by potential surrogates might vary according to whether they have what are deemed desirable attributes or n0t. the critical question to be asked is how likely is it that the acceptanceof surrogacywill actuallyproduce these consequences?Although dire predictions often have a sound.34 However. some believe that surrogacy’s essence is therefore not science but c ~ m me r c e ? ~ In consequence. at most. In consequence. opponents of surrogacy argue that surrogacy would lead to a woman’s attributes (her color. empirical basis. an argument often raised in the context of surrogacy is the so-called “slippery slope” argument.3~ Thus surrogacy’s opponents fear such eventualities as men bypassing their wives and using surrogates (tested for the “right” qualities) to produce their children and similarly unpleasant scenarios. The most fundamentalobstacles facing the surrogacy contract is undoubtedly whether it would be considered as contrary to public policy and thus either void or ~nenforceable. height. the nature of the obligations involved will then raise complex issues concerning enforceability and remedies for breach. it would be wrong to draw too many conclusions from it?’ Finally. CONTRACTUALISSUES Surrogacy agreements often take the form of written contracts and can involve some form of remuneration.
especially where these services are of a highly personalized and individual nature. even though a still birth involves gestation in the same sense that Live birth does. For instance. it should be noted that even if surrogacy contracts were held not to constitutebaby selling but.most surrogacy contracts provide for the payment of a reduced fee if the child is miscarried or stillborn. The provisions in surrogacy contracts for the payment for 9 months of gestational services are thereforepossibly incidental to the primary purpose of the surrogacy arrangement and. who might be liable to pay a fee even if the surrogate refuses to relinquish the child to them. Thus the fact that payment is conditionalupon the handover of the child is arguably there only to protect commissioning parents from extortion by the surrogate. moreover. however. More likely. The .On this basis.Lamb / THE ETHICS OF SURROGACY 409 the other hand. in consequence. contracts for services. it is unlikely this would assist the proponent’s cause in any material sense. This argument. they claim that a surrogacy agreementinvolves the purchase of the surrogate’sgestationalservicesrather than a child per se. It could be argued that should the surrogate be entitled to payment simply for having undergone gestation. however. These examples tend to illustrate that surrogacy contracts are arguably for the purpose of obtaining a healthy child rather for someone’s gestational services. the nature of surrogacy agreements serves to illustrate that surrogacy agreements stipulate for the production of a child for a prescribed fee. If wanting to reap the full financialbenefits from a surrogacy arrangement. an injustice will be caused to the commissioning parents. restrictions might be desired to limit who can have access to surrogacy.40From its very essence. the surrogate was not remunerated (at least not in full) following the birth of the handicapped child. for instance. Presuming. rather. if constituting a service at all. issues as to capacity would still have to be addressed. Thus any surrogacy agreement is unlikely in any event to be specifically enforceable. The claim that surrogacy equates with baby selling is thus strengthened. that surrogacy contracts would not be void a b initio. however. However. would certainly be considered to be of a highly individualized and personalized nature. In the Stiver-Malahoff controversy. be held to be outside the ambit of contract law. surrogacy. supporters of surrogacy contend that a surrogacy agreement does not equate with baby selling. Similarly. the surrogate is therefore usually obliged to provide more than simply a womb for rent. surrogacy agreements could validly be described as contrary to public policy and might. In this regard. is highly contentious. are probably inserted to provide an inducement to the surrogate to uphold her part of the bargain. This is because courts are generally reluctant to order specific performance as a remedy for the breach of contract for services.
in this regard. An attempt to minimize the trauma for the surrogate in relinquishing her child has led to other surrogacy proponents to suggest that the surrogate should already have at least one child of her own. it is possible that a surrogacy arrangement might be held to be void ab initio and thus altogether outside the realm of contract law. the practical enforceability of the agreement would still be open to question. This is due to the nature of the surrogacy contract and the unique problems that could arise in the event of breach. The uniquely personal nature of the surrogate function. for instance. attractive quality of a proven track rec0rd. In fact. would probably ensure that specific performance would not be an appropriate remedy for the breach of a surrogacy c0ntract. Alternatively." Whereas limiting access to surrogacy in these terms might securethe supportof certain people. will be significant in resolving both the issue of whether contract law might govern surrogacy agreements in the first instance.Some proponents of surrogacy advocate a minimum age (and some a maximum age also) for surrogatesso as to protect the health and welfare of both the surrogate and the child to minimize the potential for exploitation. usually centers around whether the availability of surrogacy should be limited to certain groups or classes of people.4~ However. and if so.4~ The preceding examples all indicate that fundamental contractual issues are raised by a surrogacy agreement. the measures (if any) it would take to enforce the parties' THE FEMINIST RESPONSE Some of the most persuasive arguments raised in the surrogacy context are those raised by feminist commentators. Although feminist commentators also have regard to consequentialist considerations. attempts might be made to restrict the type of persons who can become surrogates.41 Restricting the availability of surrogacy to certain groups could have certain advantages. feminist critiques of . a surrogate who has successfully delivered at least one child would be seen by the commissioning parents to have the additional. In addition. such as those highlighted earlier in this article.4~ Similarly. some deem it desirable that only infertile married couples be permitted to contract with a surrogate to obtain a child. even assuming that the surrogacy contract is legally enforceable. it would also invite allegations of discrimination along the lines of sexual orientation or marital ~tatus.410 FAMILY AND CONCILIATIONCOURTS REVIEW controversy. It is likely that ethical considerations. such an agreement might be prima facie valid but still give rise to complex issues concerning who can become parties to a surrogacy contract and its enforceability. For instance.
according to whether they transgress or conform to the applicable principles. for instance. second. the merits of surrogacy are often assessed on an a priori basis. This principle is therefore difficult to reconcile with many surrogacy contracts that stipulate. she is labeled the surrogate?’ Because the pregnant woman is both the genetic and birth mother.” Hence this labeling alone arguably indicates how the surrogacy arrangement serves to demean the role of the birth mother. all these stipulationsare aclear attempt to curtail the autonomy of the surrogateduring pregnancy. the humanity of everyone involved would be better served by recognizing everyone as a real something-or-other and no one as a surrogate?’ For instance. it seems unreasonable to suggest that her mothering. Although the woman who becomes pregnant pursuant to a surrogacy contract is usually both the genetic and gestational mother of the child. In consequence. it is generally recognized in feminist discourse that not all principles will be equally applicable in a particular context. the surrogate mother) and no one else should direct the course of their medical treatment and pregnancy. instead of surrogate parenting. it would be just as accurate to describe the arrangement as “contractual parenting” or “collaborativeparenting. In particular. that the woman has the right to control her own fertility. or her body. the application of the principle that women should have control over their own bodies (and hence their reproduction) gives rise to a further set of arguments and controversies. such as an obligation to refrain from smoking and consuming alcohol or narcotics during pregnancy. Nevertheless. the usefulness of any principle in the surrogacy debate might depend on whether one is focusing on a woman’s individual rights or on the group rights of women as a whole!’ Subject to these qualifications. is surrogatein nature. the logical extension of the principle is that only the pregnant woman (in this case. Hence this principle authorizes the complete autonomy of the surrogate mother in relation to the entire course and direction of her pregnancy.”53 Aside from linguistic concerns. For example. a feminist assessment of surrogate parenting usually involves an application of the following three principles:“ first. However. Consequently.Lamb / THE ETHICS OF SURROGACY 411 surrogacy are generally concerned with the application of certain (feminist) principles to the practice of surrogacy. a direct conflict is created between the surrogate’s autonomy (which is arguably a right) and the commissioning . that the surrogate must undergo amniocentesis and even abortion if amniocentesis reveals a particular type of abn~rmality?~ addition. that a woman should have control over her own body. that the women should not be objectified. most agreements have perhaps In more innocuous restraints. Consequently.and third.“ A preliminary objection raised by feminists concernsthe terminology that is often employed within the surrogacy context.
surrogacy contracts are thus seen as an inappropriateplatform from which to launch the claim that women are eminently competent to participate in all forms of public life. According to this view. by acting as a surrogate. surrogacy has been historically viewed alongsidecertain reproductivetechnologiescapable of freeing women from the tyranny of their biological destinies. the meaning of informed consent in the surrogacy context must be identified. in graphic terms. perhaps they will not be viewed as responsible contractual agents generally. It is therefore felt that although it is important to promote. Due to their numerous pitfalls. . however. This is because surrogacy is able to demonstrate. a dilemma will result if women find themselves unable to follow through with surrogacy contracts. a woman might even be striking a blow for freedom. consent to act as a surrogate. This in turn. Complexities nevertheless ensue when it is considered that other feminists. as the greater the extent to which women can control their reproductive capacities.412 FAMILY AND CONCILIATIONCOURTS REVIEW parents’desire to oversee and direct her pregnancy (which they have arguably paid for).56If women are seen to be unreliable contractual agents in the field of surrogate motherhood. and subject to changes of mind. some feminists therefore endorse the right of women to enter into surrogacy contracts.the mere signing of a surrogacycontractshould be unable to suffice as a waiver of what are. as this failure would instead confirm the unfavorable stereotypes about women as flighty. This has been heralded as a step forward. that the woman’s right to complete autonomy over her own body and reproductive capacities in a sense guarantees her right to act as a surrogate mother. Other feminists. lead women to endorse the practice of surrogacy. fundamental rights. the view of women as reliable contractual agents this should not. For this reason. after all. in any real and informed sense. Hence some feminists would see a surrogacy contract as an unacceptable encroachment on the surrogate’sautonomy and a violation of her basic rights. the less it can be said that anatomy equals destiny. In fact. To answer this. In consequence. aware of the pitfalls of surrogacy. emotional. point to the double-bind this argument might create. Any feminist endorsement of surrogacy tends to be closely linked to the right of women to undertake all obligations to which they have freely consented. In consequence. on application of identical principles. on its own. arrive at the diametrically opposite conclusion: namely. begs the question as to whether a woman can. surrogacy is viewed by some as capable of challenging the popular stereotype that women’s natures lead them inevitably and inexorably toward domesticity and child rearing.” As women might in some ways be empowered by surrogacy. the very real extent to which women can exercise complete control over their reproductive functions.
but a baby is one thing I can sort of give back. for instance. her ability to accurately predict what her responses to her pregnancy will be. the quest of an infertile couple to obtain a much-wanted child. participation in a surrogacy arrangement gives expression to deep. gave much insight into the hidden psychological traps that exist for the surrogate mother when she said. For others.”57Even before the New Jersey Supreme Court decision.Whitehead and Elizabeth Kane. ” ~1987.’’60 some women For therefore. a clone of my other little girl. altruistic instincts.they derive much satisfaction from knowing that they have been able to help. Perhaps the most. other feminists feel that this does not address the question as .Consequently. they threw doubt on many justifications given for surrogacy. claiming that surrogacy succeeds only in “transferring the pain from one woman to another. Mary Beth Whitehead (the surrogate in the notorious Baby M case). that can be said about surrogacy arrangements is that individual reactions to the experience are unpredictable. therefore. other women who have acted as surrogates report that they actually gained much satisfaction from their participation in a sumgacy arrangement. it is submittedthat it should include a woman’s ability to appreciate all the aspects and implications of the contract she is signing. in a unique and personal way. Some women actually enjoy the physiological and physical changes brought about by pregnancy and view surrogacy simply as a job they can do well. and in particular. One woman. Whitehead was actively casting aspersions on the practice of surrogacy. It is this last aspect to informed consent to sumgacy that usually provides the focus of any doubt about informed consent in the context of surrogacy. appeared before the United States Congress to ask that surrogacy be made a federal offense.62 Nevertheless. explained. “I signed on an egg. who had In ~ also previously acted as a surrogate.Doubt arises because the majority of surrogacy arrangements that end in custody disputes result from the surrogate’s underestimation of the difficulties involved in handing over a child she had carried and delivered. There.”” By contrast. something I can give to someone who couldn’t have it any other way. from a woman who is in pain from her infertility to a woman who has to give up her baby. even if conceding that surrogacy is capable of working for some women. however. the act of bearing a child for another woman constitutes an “act of love and generosity. they conclude that it is patronizing for other people to determine in advance that surrogacy falls into some category of agreements to which women are incapable of freely consenting.“I’m not going to cure cancer or become Mother Teresa.”61 Accordingly.claiming “that she had been chosen by God to show people not to do surrogate m ~ t h e r i n g .Lamb / THE ETHICS OF SURROGACY 413 Whatever definition of informed consent is adopted for this purpose. I didn’t sign on a baby girl. for instance.
while the dangers of reproductive technologies should not be underestimated. women.63This conviction could be due to many factors. preeminent among them being a concern that surrogacy could have potentially unsettling effects on the surrogate’s other children. A further concern of feminist commentators is that the transfemng of conception to a technological-type environment extends the range of male domination over women’s bodies and their reproductive powers.414 FAMILY AND CONCILIATION COURTS REVIEW to whether it should be allowed to operate at all. A commonly expressed sentiment is that children should not grow up with the knowledge that some people have babies only to give them away. This analogy breaks down when it is considered that sperm . surrogacy is consideredby some feminists as a means for men to gain even greater control than they already have over women’s reproductive f~nctions. who. On the other extreme are commentators who feel that surrogacy is simply the female equivalent to sperm donation.68Due to the nontechnical nature of surrogacy (and the correspondingly less need for male intervention at any stage). However. these concerns might be more pressing in the context of other more intrusive forms of assisted reproduction. a fuller perspective would recognize that idealism has been present alongside male control and that the many women who claim to have benefited from reproductive technologies should not be dismissed as mere dupes!’ The diversity of the feminist position is further illustrated by the fact that not all feminists decry surrogacy as just another patriarchal instrument. because infertile men are permitted to reproduce by inseminating a woman with purchased sperm. it is probably 0verstated. the concern is not so much with the technology itself but with the sociopoliticalcontext. surrogacy is simply the corollary of this privilege for women. Hence it is a procedure that potentially rights imbalances currently within society. it has arguably also increased the capacity of male medical technocrats to exercise control over the reproductive Although the view that surrogacy (like other means of assisted reproduction) is a tool by which men tighten their control over the femalereproductive process is real and demandingof serious attention. and thus the equal treatment of women requires that women should be permitted access to surrogacy. after all. might wonder if they too are also available for purchase. That is. In a similar sense to technology. this analogy between surrogacy and sperm banks is weak.~’ Whereas procedures such as surrogacy could increasethe capacity of women to control their own bodies. however. such a position is reductive. Hence.” In this view of reproductive technology as a continuation of male domination over women. Although it could be argued that these pioneers were themselves victims of the dominant male ideology.6~ Some of the pioneers in this practice were. upon witnessing the birth and sale of a half-brother or sister.
who fought to keep her child.’~ In similar terms. due to the costs involved. painless procedure. particularly for those women most vulnerable to reproductive e~ploitation. Other feminists. By contrast. ahead of other forms of coercive labor. Rather. The answer is probably only that we feel different about our sexuality and reproductive capacities than we do about our general productive ~apacities?~ Moreover. having a different focus. Perhaps a stronger analogy with sperm donation would be to recognize a women’s right to donate and purchase eggs. Moreover.~’ second group of feminists usually gives explicit attention This to the intersectionof gender. surrogacy seems to be a rich person’s resort. is being singled out for condemnationonly on the basis that it is exploitative. From one perspective. a trend that seems likely to continue if surrogacy is to develop as an industry. and the most oppressivecontracts are the low-paying ones: One woman in San Diego. even if surrogacy is seen as giving the infertile women an equal right to procreate.feeling that poor and working-class women might be pressured to sell their reproductive capacities to upper-middle-classpersons. . generous payment for a surrogacy arrangement makes it less exploitative. In addition. another is arguably enchained. we are more inclined to see it for what it is and react with fear and revulsi~n.n Hence surrogacy does contain overtones of economic exploitation. that many women who have acted as surrogates were poor. in the abstract. as surrogacy is a form of “alienation” that is not yet commonplace. the fact that surrogacy is often highly remunerated (and hence a form of commerce) provokes a mixed response. as embryo transfer procedures improve. whereas the commissioning parents were well-to-do. It is probably no coincidence. for example. surrogacy involves a commitment of 9 months. all the medical risks incumbent upon pregnancy. However. the privileged might employ surrogates from socially disadvantaged ethnic groups and Third World countries. For these reasons. they advocate social protection for women as a group. race.500to be a surrogate. a woman who is arguably oppressed as a result of the arrangement. being alienated from one’s reproductive powers (as a birth mother under commercial surrogacy arrangements) is no less exploitative than is being alienated from one’s general productive powers (as a worker)?3 One could therefore ask why surrogacy. Moreover. The concern is thus that surrogacy threatens to create a subclass of “breeder” women whose humanity is reduced to a capacity to procreate. it is difficult to view the two procedures as analogous. and class in reproductivedilemmas.Lamb / THE ETHICS OF SURROGACY 415 donation is a quick. Thus for every woman that surrogacy can potentially liberate.’l There is probably some substance to these concerns. surrogacyalso requires the services of another woman. was paid $1. give less attention to the rights of women as individuals. and often the payment of a large fee.
higher fees make surrogacy arrangements harder to resist for women who have no other means of livelihood or no other means of making substantial sums of money. as being undervalued has been something inherent in the working woman’s condition for some time. But it is open to argument that if society was less wedded to this notion of children as “chips off an old block”78the surrogacy issue would be of less significance. a society might have no interest in promoting it79other than to gratify those individuals who wish to avail themselves of the procedure. Moreover. for instance. They might. starving. the feminist critique illustrates how attitudes to surrogacy will be defined not simply by individual perceptions but also by cultural preferences and expectations. Ultimately. society’s interest is arguably to cater for these existing children rather than to concern itself with the (somewhat artificial) creation of more children. live . though. but these children are often inaccessible or unwanted by people willing to adopt. Thus surrogacy is often seen as a desirable means to enable otherwise infertile couples to not only obtain a child but one capable of passing their genetic material on to future generations. However. Such a result fits into our tradition of noncompensation for women’s work. problems are likely to ensue.A focusing on the “nurturing” rather than “genetic” elements of child rearing would promote more meaningful relationships between adults and children who are not genetically related but nevertheless in need of care and attention. particularly poor women. much of the attractiveness of surrogacy is that it allows the commissioningparents to obtain a child that is the genetic child of at least the commissioning father. For instance. as many children currently exist who are in need of care and attention. genetically related children might no longer be as laudable as it once was. the desire simply to produce additional.416 FAMILY AND CONCILIATIONCOURTS REVIEW Perhaps the most oppressive result of all is to allow surrogacy but prohibit the payment of any fee. even if surrogacy is condoned. Moreover. Should we worry that surrogates are poorly paid. The problem in society instead seems to be a structural one. if for no other reason than that quantum of payment for women’s work is a contentious issue in society at large. or otherwisein need of good homes. neglected. in an age where overpopulation and depletion of natural resources is rapidly becoming a problem. or should we instead worry that large sums of money might tempt women.In consequence. Thus. There undoubtedly exist children who are abused. orphaned.‘6 But from another perspective.surrogacyhas a sort of existential significance not found in adoption or certain other forms of assisted reproduction. it would be unjust to single surrogacy out on the basis of low pay alone. to act against their better judgment?” Whatever conclusion is reached.
Society recoils from the notion that children should be redistributed along the lines of who is best able to provide for them on the grounds that this could lead to the exploitation of the poor by the rich and exploitation by developed nations of Third World nations. It is important to note that the drawbacks of surrogacy. Hence.” these perceptions should be understood for what they are: reflections of current Western values and attitudes pertaining to women. as perceived by a Western culture. children.” might be less of an issue in other contexts. Moreover. there is nevertheless no consensus as to the most constructive role that legislation might play in dealing with these issues. IMPLICATIONSFOR A LEGISLATIVE RESPONSE TO SURROGACY Although there is widespread agreementabout the problems that surrogate motherhood poses. rather than being isolated to the surrogacy debate. culturally induced. For in Ethiopia. prevail in society at large.81 instance. . it is interestingthat in societies where kinship has different meanings. rather than being “natural” or “inevitable. COMPETING ALTERNATIVES There are several possible alternatives for regulating surrogate motherhood. ranging from endorsement to outright prohibition.The official response to surrogacy is therefore likely to turn on how a society chooses to translate its basic cultural and moral values into a body of laws. we are therefore to some extent rejecting or endorsing images and attitudes that. whereas cultural perceptions are relevant to why surrogacy might be desired. and parenthood. infertile wives urge their husbands to have children by other women and then welcome the children into their homes not by displacing the natural mother but by becoming a coparent.Lamb I THE ETHICS OFSURROGACY 417 overseas or with unfit parents. This section seeks to identify and outline the distinguishing features to some of these alternatives before proceeding in the next section to assess them. surrogacy does not seem so startling.In this regard. they are equally important in explaining why surrogacy should be viewed as undesirable.83 THE. The regulation of surrogacy is therefore a contentious question for which there are few guidelines and still fewer answers. In accepting or rejecting surrogacy.82 It is hoped that this analysis has served to illustrate not only that attitudes and ethical perceptions surrounding surrogacy are diverse but also that these perceptions are. in general.
such as by providing licensing authorities for surrogate agencies or procedures to bring potential parents and surrogates together. the surrogate herself. Finally. it would be unwise to pay undue attention to the practice. Whatever one’s response to surrogacy might be. under this approach. Thus ignoring the issue of surrogacy will arguably not cause it to go away. surrogacy would be pennitted to operate. This approach implies that surrogacy is not per se illegal but is nevertheless strongly discouraged and difficult to enforce. allowing parties to contract at their own risk. Accordingly. and in light of the ethical concerns highlighted in the first part of this article. few of us feel indifferentto it. types and levels of fees would be prescribed or access be limited only to infertile married couples. surrogacy could be obstructed. Second. that most legislative The responses tend to mirror a combination of these possible approaches. This would entail enacting measures that have the incidental effect of curtailing surrogacy contracts. however. however. such as deeming a surrogacy contract to be unenforceable o by prohibiting the r payment of a fee in consideration of adoption. but parties could not seek the assistance of the state to either terminate or enforce their bargains.8~ reality is. it is submitted that although ignoring the issue of surrogacy altogether may have the advantage of simplicity it would be an inappropriate response to a complex social issue and one that has potentially far-reaching consequences. surrogacy could be prohibited outright. surrogacy could be regulated. although access to it and its operation would be subjected to certain rules. hr Third. For example. whether the participant be the commissioning parents. or a mediating t i d party. This approach is arguably the one closest to the New Zealand stance on surr0gacy. That is. Nor does female infertility look likely to decrease in the short term. legislatorsmight simply ignore the surrogacy issue.For instance. This is because the social ills alleged to follow from surrogacy . Surrogacy arrangements. On the other extreme. might not necessarily be illegal. the approaches of most jurisdictions is complex and multifaceted and hence not amenable to precise classification along the lines set out above.a failure to take official cognizance of the problem will not diminish that exploitation but lead simply to unchecked exploitation. if surrogacy is in any sense exploitative. First. Participation in an arrangement could even be criminalized. the following conclusions can be tentatively drawn. surrogacy could be endorsed and facilitated.418 FAMTLY AND CONCILIATIONCOURTS REVIEW First. Fourth. AN OVERALL EVALUATION Of the range of alternatives available.
In addition. making it still more difficult to detect abuses and to protect all parties involved. thus illustrating that it is too dubious a practice to be deserving of enthusiastic official endorsement. if it is felt that surrogacy is wrong on principle and thus should not be permitted under any pretext. The major attraction of these responses is that they do not provide blanket prohibitions and thus would be unlikely to force the practice underground and out of the public view. and surrogacy itself can really only be seen as a stop-gap measure rather than as a true means of addressing the problem of infertility. Although these viewpoints are usually sincerely held. Whereas facilitating the practice of surrogacy (such as by regulating agencies) would have the advantage of allowing the practice to operate under public scrutiny. Moreover. It appears that so long as infertile couples and willing surrogates exist. In a pluralistic society. In consequence. a perceived predominance of one set of values over others is liable to be resented. Criminalization is therefore only likely to drive the practice underground. Moreover. In similar terms. The preceding ethical analysis raised numerous actual or potential problems that surrogacy engenders. As they are both fundamentally similar (in the sense of seeking to remedy specific aspects of surrogacy rather than to prohibit or endorse the practice as a whole). endorsing an issue as complex and multifaceted as surrogacy simply on a principled basis would arguably lead to an oversimplificationof the issues it raises. no preference is expressed between the two. surrogacy should not be endorsed.Lamb / THE ETHICS OF SURROGACY 419 are nonspecific. this choice will depend on the nature and efficacy of a jurisdiction’s existing legal structure and the individual preferences of each legislature. this is likely to be perceived simply as an endorsement of surrogacy and therefore as inappropriate. it is submitted that both the obstruction of and the regulation of surrogacy emerge. and not conducive to informed public debate on the surrogacy question. certain variables present within individual arrangements might make some contracts more innocuous than others. inflexible. a priori arguments tend to stem from certain ethico-religious standpoints. All these observationssupportthe view that surrogacy should not be prohibited outright. the issue will inevitably be raised as to whose values are to predominate. It is submitted. they are nevertheless not universally shared. whereas surrogacy might have its dangers. In addition. they have sufficient flexibility to deal . Rather. Moreover. however. surrogacy is likely to be prohibited outright only if credence is given to certain a priori objections to surrogacy-that is. as the most desirable legislative responses to surrogate motherhood. that this approach is rigid. surrogacy will continue. almost by elimination. If a priori considerations are held to be determinative of the surrogacy debate.
herald it as a reproductive advancement and one capable of reducing the injustices of infertility. it will be extremely difficult for a legislature to be adequately predictive. These approachesare therefore compatible with compromise and are therefore able to take cognizance of various perceptions of surrogacy in the community. and thus no response should be criticized on this basis alone. in turn. Thus an ad hoc approach to the regulation of surrogacy requires that the legislature be prospective in dealing with any contingenciesthat might arise as a result of surrogacy. Moreover.For instance. reveals myriad and diverse ethical issues. surrogacy’s opponents condemn it as a device to “transform the surrogate into a container. on one hand.85 The ethical controversy surrounding surrogate motherhood is both complex and interesting. Closer examination.88 . Nevertheless. these two approaches would enable the law on surrogacy to develop on an ad hoc unprincipled basis. this is a dilemma of the human condition itself. As legislators are human and thus not endowed with prophetic powers.86By contrast. This. such approaches might be perceived as “sitting on the fence”-a Clayton’s approach to surrogacy for those unable or unwilling to confront the issue on less ambiguous terms. From this position of flexibility. This may lead to uncertainty for the parties involved and short-term injustice for persons injured by certain aspects and consequences of surrogacy that had not been anticipated and addressed by the legislature. surrogate motherhood appears to be an ideal and readily workable solution for the childless couple. As outlined above. CONCLUSION On the surface. however. these approaches permit the practice of surrogate motherhood to be open to analysis and debate. however. Surrogacy’s supporters. This is not to suggest that obstructionor regulation of surrogacy is entirely without disadvantages. an ad hoc regulatory approach to surrogate motherhood arguably emerges as the most desirable approach on the grounds that it submits a complex ethicallegal issue to sound empirical analysis and assessment. More important.420 FAMILY AND CONCILIATION COURTS REVIEW with each complexity as it arises. sets the scene for informed public debate. a non-human box for gestating a It is therefore unsurprising that even a cursory comparative survey reveals disparity in legislative approach and universal uncertainty about future legislative reforms. surrogacy can be dispassionately studied (insofar as this is possible) and its actual consequences monitored and assessed.
Hagar. surrogacy raises the question of whether there should exist. “What Money Cannot Buy: Commercial Surrogacy and the Doctrine of Illegal Contracts. 537 A. preventing exploitation of women. even the most market-oriented societies acknowledge a need to limit the enforceability of the unconscionable bargain. 6. 7.of a baby girl.at 1173.g0 NOTES 1. See supra. and to release t that child a birth to the child’s commissioninglgenetic father and his wife. in which the surrogate agrees (by way of written or oral agreement) to produce a child (geneticallyhers and the commissioningfather’s). . on March 27. 2. Although a deal is undoubtedly still a deal. The Stems then commencedacivil action against the Whiteheads. the motives of Mary Beth Whitehead (the ) surrogate) were. although an important social objective. n. although pregnancy threatened to worsen a preexisting medical condition (multiple sclerosis). Unless otherwise stated. 5. 8. 1988). surrogate motherhood. a mixture of altruism and financial concerns Similarly. In a profound and unique sense. Sarai admonished Abraham to “lie with” her handmaid. and encouraging adoption of existing children.” 32 Saint Louis University Lau Journal (1988). n.. a professional New Jersey couple. Idem. M. This is due partially to increasing access to contraceptionand abortion and a decreasing stigma being attached to single parenthood. 1986. in this context.*^ Given society’s interests in discouraging commercialization of sex and childbearing.for instance. the commissioning mother (Elizabeth Stem) was not actually infertile.Celeste Schejbal-Vossmeyer. n. 2d 1227 N. Whitehead repudiated the surrogacy agreementand announcedher intention to keep the.Lamb / THE ETHICS OF SURROGACY 421 Due to these uncertainties. J. For instance. In 1985. due to their very nature. appropriate positions for jurisdictions to take toward surrogacy could feasibly range anywhere between prohibition of surrogacy contracts and tolerance of them. 1. Elizabeth and William Stem. it perhaps emerges that there is no reason for society to encourage surrogacy contract^. 4.though highly publicized and protracted action to obtain custody of the child (see In re Baby M . In the Baby M saga (supra. 11). Soon after the birth. 9. who subsequentlybore them a child (Genesis 16: 1.because Abraham’s wife (Sarai) bore him no children. Surrogacy has been practiced sincebiblical times. 3. at 1172 (hereafter cited as “What Money Cannot Buy”). ensuring that fewer children are now offered for adoption. This resulted in a partially successful. Contractual certainty. should simply not be viewed as items of barter. refers to the most common incidence of surrogacy. One commentator has noted that artificial insemination is a “centuries-old technique which requires a device no more complicatedthan a turkey-baster” @bid. some things that money just cannot buy.2). in a civilized society. Some things. 4 . should therefore not be seen as overriding in the surrogacy context. entered into a surrogacy agreement with housewife Mary Beth Whitehead. child.
arguments under the heading of “ContractualIssues’’and “TheFeminist Response” (infra. at 60-61. at 8 et seq). M. University of Otago Faculty of Law. 35.” at 216.. Idem.” at 1763. 37.” 87 Canadiar Medical Association Journal (December 15. come under the definition of . 34. for instance. it raises ethical controversiesof a similar nature to new b i technologiesand thus is considered under this heading for the purposes of an ethical analysis at least. S. Surrogate Motherhood-The Legal and Human Issues (1988). Anderson. 19. Idem. Idem. states. 30. at 146 (hereaftercited as “Surrogate Motherhood Contracts”).” at 211. “Recent Works. Ibid. “Privacy. 12. “Is Surrogacy Exploitative?“ in G. 27. 210.” 17. “Womb for Rent: Ethical Aspects of Surrogate Motherhood. Surrogacy and the Baby M Case. 13.” 76 Georgetown Law Journal (1987-1988). Idem. the Vatican statement. this would involve a finding as to whether a surrogacy contract would.422 FAMILY AND CONCILIATION COURTS REVIEW 10. 29. at 173 (hereafter cited as “Is SurrogacyExploitative?”) 31. 16. The Vatican Statement.” at 215.). “Womb for Rent. La Puma et al. See. 32. “Recent Works. in requiring no particular medical expertise to initiate. delivered a baby with micmcephaly (a small head). for instance. Keller.” at 1133. Idem. 33. B. 1990. “Recent Works. Although surrogacy. This categorization is taken from the guest lecture given by Professor Campbell to the Law and Medicine class. Judy Stiver. “Respect for the unity of marriage and for conjugal fidelity demands that the child be conceived in marriage. 14. 25. at 61. 36. 18. under Section 3 of the Illegal ContractsAct 1979. Freeman. 1987) at 1133 (hereafter cited as “Womb for Rent”). Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation (1987) (hereafter cited as The V2’canStatement).M c h (Ed. B..at 1763 (hereafter cited as “Privacy”). 24. 22. 20. a 214 (hereafter cited as “Recent Works”). a surrogate. Ibid. which indicatedthat the child was mentally retarded. is arguably not a ‘ K i h technology” as such. at 5 (hereafter cited as Surrogate Motherhood). 23. 28. at 174.. “Surrogacy and Shakespeare: The Merchant’s Contract Revisited.” American Journal of Obstetrics and Gynecology (January 1989). for instance. Allen. t 15. Field. In January 1983.All parties involved (the Stivers and the Malahoffs-the commissioningparents) initially rejected the child. 26. “Surrogate Motherhood Contracts in Louisiana: To Ban or to Regulate?” 49 Louisiana Law Review (September 1988). Idem. M. April 23. Legal Issues in H m n Reproduction (1989). 21. These headings are for organizational convenience rather than representing entirely distinct categories of argument. althoughthemajority of modem Catholic theologians no longer endorse it. J. “Recent Works on ReproductiveTechnology” 15 Religious Studies Review (July 1989). A. “Privacy. 11. In the New Zealand context. See. This was apparentlythetraditional doctrineofthe CatholicChurch.Bhimji.
a 70-71.at 231. 45 and accompanying text.Idem.Rosier. ConnoZ(1980)1 ChD.Ibid.See also infra.“Recent Works.” at 160.Lamb / THE ETHICS OF SURROGACY 423 an illegal contract (on grounds of being contrary to public policy). or aesthetics.“Recent Works. t 4 57. 40. “Male Order Babies.” at 1172.” 329 Nature October 15.Surrogate Motherhood.” at 212. Although these views are not generally put in an historical context. and women who are fertile but wish to forgo pregnancy for reasons of career.” at 2 2 .Idem.“Surrogate Motherhood Contracts. was 55. where it is argued that the profound psychological significance of bonding between the birth mother and child makes specific performance an inappropriate remedy for the breach of a surrogacy agreement. n.‘What Money Cannot Buy. 43.‘Who Is My Mother”. certain feminists (such as Selma Sevenhuijsen and Juliette Zipper) view some reproductive technologies as opportunities for women to help women (“Recent Works. .Surrogate Motherhood. 52.” Broadsheet (April 1 8 ) at 19. 61. Suh. 1) 56. 3 . 46..Idem.. at 65-66.” 22 Columbia Journal o Luw andSocia1Problems (1988-1989). convenience. 49. a 2 . t 0 61.As it is undesirable and in most cases impossibleto compel an unwillingparty to maintain continuous personal relations with another. 4 2 .For instance. n. ‘Who Is My Mother?’ Broadsheet (March 1 8 ) at 24.Ibid. 64.“Surrogate Motherhood: An Argument for Denial of f at Specific Performance. 65.” in Man Mude Women: How New Reproductive TechnologiesAflect Women (1987). 48. a 7 . t 2 63. 50. Corea. 8 which criminalizesthe payment of money in consideration of adoption.See supra.a surrogacy contract is likely to be void ab iniiio. homosexual and lesbian individuals or couples..Idem. 3 54. 357.For instance. See Morgan. single persons. 41.Idem. it is well established that a contract for personal 4 8) services is not specificallyenforceable (Rigby v.“West German Ructions Over US. t 51.Idem.Idem. 2 f 67. “The Man Made Brothel.P. a 24. 40. “Making Motherhood Male: Surrogacy and the Moral Economy of Women. at 7. If so.Idem.” 1 Journal o Law andSociety (1985).. .Ibid. 45. 66. Surrogate Motherhood.1987.See also M.The relevant provision under New Zealand law is Section 25 of the Adoption Act 1955. at 577. even today. 59. 5 . G. 99.‘Who Is My Mother?“.” at 214. at 3. a 2 . 44.Surrogacy Company. Ibid. 39.E Kane. 58. t 60. ShulamithFirestone (1970) an exceptional example of a feminist who saw artificial reproduction as a liberating force for women. Those potentially discriminated against include infertile unmarried cohabitants. 99. at 4. 47. 42.
73.1249 (N. at 222. M. at 152. Idem.” at 1133. “SurrogateParenting:What Can We Learn From Our British Counterparts?” 39(1) Case Western Reserve Law Review (1988-1989). 82.” 76(2) Georgetown Law Journal (1987-1988). at 27.2d 1227. G. em 85. Section 25 of the Adoption Act 1955 criminalizesthe payment of money in considerationof adoption.” 22 The Law Teacher (1989). 81. 71. 72. Idem. 77. at 152. . 74. “Womb for Rent. 75. 89. at 25. These drawback might include. 87. “A Comparative Look at Surrogacy. 79. and Beyond. Lamb is currently on a Rhodes Scholarship at Balliol College in Oxford. Jones and W. Baby M. “Surrogacy = Baby Selling. 1988). at 25-26. 83. Anna. “Who Is My Mother?”. 69. at 217. Idem. “Who Is My Mother?”. J. “Motherhood.. 70. “Womb for Rent.” at 1135. 1987). 86. 537 A. 76. at 38. 80. 84. Surrogate Motherhood. 88. Baggish. for instance.” American Bar Association Journal (June 1. 78. the concern that surrogacy constitutes an impermissibleintrusion into the maritalrelationshipor the concern that it degrades women. Swan R. at 26. In re Baby M. at 1843. Surrogate Motherhood. Idem. Idem. Feinerman. M. “Who Is My Mother?’. 90. For instance. Ibid. at 26.424 FAMILY AND CONCILIATION COURTS REVIEW 68. Weston. Surrogate Motherhood. at 214. Idem. Surrogate Motherhood.J. and there is doubt as to whether a surrogacy contract would be an illegal contract in t r s of the 1970 Illegal Contracts Act.
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