THE ETHICS OF SURROGACY A Framework for Legal Analysis

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.



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?

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

l1 Deontological. A judgment. At this juncture. As a result. such an attempt at categorizationcan promote a greater clarity in the ethical analysis of surrogacy. in general terms. which could in turn affect the legitimacy accorded to that particular agreement. This assessment would be entirely distinct from analyzingthe consequencesthat would follow from such an acceptance or endorsement of surrogacy. By contrast. One commonly employed distinction applied to arguments surrounding new birth technologies" comprises two distinct categories: deontological and consequential. which could in turn assist in illuminating appropriate legal responses to it. arguments judge procedures to be right or wrong depending on whether they conform to or transgress some principle. as to whether surrogacy is right or wrong would therefore proceed on a principled basis. 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 . the individual case of surrogacy contains any combination of variables. THE DEONTOLOGICAL-CONSEQUENTIALDISTINCTION Despite the myriad complexities potentially thrown up by an individual case.'' The terms deontological and consequential are descriptive terms representing a fundamental and generalized distinction between certain types of ethical arguments. In this regard. most instances of surrogacy appear to fall somewhere between all the extremes mentioned above? Potentially therefore. In reality. 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. Accordingly. generally applicable criteria for the assessment of ethical argument. the deontologicalconsequential distinction should not be considered merely as one category of arguments applicable to the surrogacy context but as an overriding. the motive behind the surrogate's participation in the arrangement can be equally important. it is arguably possible to categorize.Lamb / THE ETHICS OF SURROGACY 403 Third. the difficulties in drawing generalized conclusions as to the practice of surrogacy should not be underestimated. in these terms. a spectrum is often imagined. consequential arguments judge practices to be right or wrong with reference only to their beneficial or detrimental consequences. it should be noted that the deontological-consequential distinction is potentially applicable to many of the arguments raised in other sections of this article. or a priori. In fact.

’~ This has traditionally been thought (for instance. by the Roman Catholic Church) to be wrong on principle. l ~ A second objection is that surrogacy agreement inevitably introduces a third party into the marital relationship.16Nevertheless. This section identifies and critically assesses some of these arguments. is its unique capacity to isolate (and ultimately to reallocate) the various stages and functions involved in procreation.’~ obvious counter to this The objection. as sexual intercourse is seen as having an intrinsic human meaning. Arguably however.l~ Moreover. it does not necessarily threaten the spousal commitment. in the sense that an injustice is done to the child by introducing confused genetic or uterine origins. especially when it is considered that adop tion is not only seen as an accepted practice but a laudable one. Due to the actual inability of the infertile couple to combine the unitive and procreative aspects to sexual intercourse. In consequence. the so-called “adulterous” nature of surrogacy is open to question. It has often been argued that surrogacy entails a violation of a child’s right to unambiguous origins. according to the Catholic Church. Because the surrogacy arrangementis often initiated to relieve the sufferingof infertility.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 . who presumably also suffer from similarly confused genetic and uterine origins. The first a priori objection is that some cases of surrogacy involve a separation of the unitive and procreative elements of sexual interco~rse. Thus the “unambiguous origins” argument breaks down. this argument is difficult to reconcile with the status and rights of adopted children.This is seen to entail an unacceptable violation of the marital bond and to pose a threat to the commitment of loyalty between spouses. A third principled objection to surrogacy pertains to the status of the child born as a result of a surrogacy arrangement. the marital bond might even be more consolidated by the spouses’ shared commitment to the birth and upbringing of a child. One aspect of surrogacy. The moral integrity of sexual intercourse.404 FAMILY AND CONCILIATIONCOURTS REVIEW surrogacy. which has traditionally been contentious.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. In response to this. however. emerges from its capacity to link loving interpersonal intimacy with an openness to pr~creation. although the surrogacy arrangement inevitably involves third parties. However. a distinction can be maintained between surrogacy and adoption on the grounds that adoption deals with the necessity of finding homes for . certain principled objections have been raised. is that it cannot deal adequately with the married couple known to be infertile.

some types of infertility cannot be cured. even if admitting that an infertile woman does have a right to the treatment of her condition. conditions of infertility can nevertheless be palliated. surrogacy agreements do not (and cannot) restore function and arguably do not serve to educate patients about their condition. On the other side. it might be inequitable to make such a finding. surrogacy entails the deliberate creation of new life. even accepting this at face value. In these instances. bringing with it the suggestion that no such right exists. In surrogacy might even deflect social attention away from the root causes of infertility and thus jeopardize attempts to prevent and cure female infertility. surrogacy is not actually curative of infertility in the same way as unblockage of Fallopian tubes or enhanced sperm production could cure the disease. When surrogacy is judged according to its detrimental or . it is difficult to view surrogacy as truly equatable with such a right. it can therefore still be indicated as a medical treatment. surrogacy might become a “quick fix” that substitutes for the social initiatives necessary to truly address the issue of infertility. This is premised on infertility being viewed as having the same treatment priority as any disease or illness. surrogacy could be considered contraindicated. By contrast. First. increasing numbers of children are born outside of marriage. EXAMPLES OF CONSEQUENTIAL OBJECTIONS AND JUSTIFICATIONS Consequentialobjections and justifications in the context of surrogacyare also numerous. even if surrogacy does do violence to some ‘‘right” to unambiguous origins (or is in fact threatening to the nuclear family). For instance. even for the palliation of infertility?’ In addition. In consequence. In fact. Nevertheless.= Consequently.” If surrogacy can legitimately accomplish this goal. the right to employ a surrogate might be equated with a general right of access to health care. In this sense. Because the potential medical risks (pregnancy) all accrue to one party and the potential medical benefits (relief of infertility) to another. to equate a right to some form of health care with a right of access to surrogacy arguably requires a quantum leap. arguments based on principle can be adduced in support of surrogacy. other practices might also be open to the same criticism.As the traditional Western nuclear family is arguably no longer the norm. However.Lamb / THE ETHICS OF SURROGACY 405 unwanted or orphaned children.’*However. the very existence of such a right to unambiguous origins must itself by highly questionable.22 fact. one could legitimately ask why surrogacy is singled out for condemnation. the right to employ a surrogate does not necessarily follow. Moreover.*’ In surrogacy’s case. however.

406 FAMILY AND CONCILIATIONCOURTS REVIEW beneficial consequences(both actual or perceived). or older children to adopt. In surrogacycases involving the payment of a fee.25 The shortage. The Malahoff-Stiver controversy is a tragic illustration of the transparency of the motives that can underlie a surrogacy Moreover. 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. however (and especially where money is involved). the thought of children being ordered according to specifications is inherently uncomfortable. who. In practice. seek the assistance . white newborns. this disappointment could potentially be accentuated in cases where money has changed hands. Although it is acknowledgedthat the birth of a handicapped child may cause disappointment (or even rejection) for natural parents also. Presumably however. the following arguments emerge. this concern could be minimized by restricting access to surrogacy only to the infertile couple. It could be argued that just as natural parents must assume certain risks that their children may be born imperfect. “yuppie” parenthood. people appear to accept only those children for which they bargained. minority. 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. 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). There 2~ is no shortage. it seems is for healthy. in a sense. 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. for instance. surrogacy is often abhorred as it might precipitate undesirable changes in societal attitudes to parenting. 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. which could underscore the difficulties involved in making generalizations about surrogacy as a whole. of handicapped. This raises the concern that surrogacy could diminish the values of caring and parental responsibility and promote careless. so too should parents who commission a surrogate be willing to accept a handicapped child born as a result. First. Nevertheless. This is because surrogacy usually involves not only a desire to have a child but a certain type of ~ h i l d .

comparatively few appear to have resulted in highly publicized and protracted litigation. These fears. though probably not insignificant. 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. Because the practical effects of surrogacy appear to deviate so far from the ideals of its proponents. it is arguably unsafe to rule out a procedure simply on the grounds that sometimesthings go wrong. Surrogacy is generally employed as a last-resort technique to alleviate infertility. In any event. it is argued by some that surrogacy should therefore be condemned. however. are commonly voiced. Moreover. Accordingly. Second.” 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. Certain objections can nevertheless be leveled against this argument. such as resentment caused by the involvement of a surrogate and fears that the commissioningparents will not “bond” with the child. Although it is unfortunate that . 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. undue emphasis on these cases serves only to distort an analysis of surrogacy as a whole. Because childlessness is a potent source of unhappiness. Concerns. This is becauserisks inhere in many procedures. The Baby M and Malahoff-Stiver cases are often cited as graphic illustrations of the numerous pitfalls inherent within surrogacy. surrogacy is often denounced as having a potentially unsettling effect on infertile marriages. whether a majority of surrogacy arrangements do in fact end in disaster. actual arrangements are often fraught with difficulty and controversy. about 500 children had been born as a result of surrogacy arrangements in the United States?’ Of these. can nevertheless be marginalized. the acquisition of a child by means of a surrogacy agreement could in some instances strengthen the marital bond. First. they indicate that surrogacy can be perceived as having a potential impact on societal attitudes and patterns as a whole.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. Two further concerns are relevant at this juncture. By the end of 1986. It is unclear. 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. for instance. in practice. Certain commentators note that even if surrogacy is justifiable in the abstract. Only the minority of cases that do go wrong tend to attract widespread media attention.

"^' On . The “slippery slope” argument. some believe that surrogacy’s essence is therefore not science but c ~ m me r c e ? ~ In consequence. This objection is simply that if surrogacy is allowed this will lead in turn to other practices that are inherently ~ndesirable. indicates simply that surrogacy does have its dangers. height.408 FAMILY AND CONCILIATION COURTS REVIEW the Stiver-Malahoff litigation occurred. opponents of surrogacy argue that surrogacy would lead to a woman’s attributes (her color.” 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. at most. a typical contract to bear a child will raise. 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. But so long as these dangers are not inevitable consequences of the practice itself. an argument often raised in the context of surrogacy is the so-called “slippery slope” argument. “looks”) being “monetized.38Hence critics of surrogacy describe surrogacy contracts as “the purest form of trafficking in human being^. assuming hurdles as to capacity and legality are surmounted and a contract is formed.~~ concern in this context is often whether The a surrogacy agreement contravenes prohibitions (found in probably all jurisdictions) against baby selling. from its very inception. substantial issues of contract law.~’ most common “slippery slope” argument in the surrogacy The context is that the practice will lead to undesirable results?’ Accordingly. it would be wrong to draw too many conclusions from it?’ Finally. empirical basis. intelligence. the nature of the obligations involved will then raise complex issues concerning enforceability and remedies for breach. they might just as easily be based on assertion and assumption.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. In consequence.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. they can presumably be guarded against by sensible regulation.34 However. CONTRACTUALISSUES Surrogacy agreements often take the form of written contracts and can involve some form of remuneration.

would certainly be considered to be of a highly individualized and personalized nature. are probably inserted to provide an inducement to the surrogate to uphold her part of the bargain. however. the surrogate is therefore usually obliged to provide more than simply a womb for rent. supporters of surrogacy contend that a surrogacy agreement does not equate with baby selling. These examples tend to illustrate that surrogacy contracts are arguably for the purpose of obtaining a healthy child rather for someone’s gestational services. is highly contentious. In this regard. It could be argued that should the surrogate be entitled to payment simply for having undergone gestation. contracts for services. however. restrictions might be desired to limit who can have access to surrogacy. Similarly. For instance. the surrogate was not remunerated (at least not in full) following the birth of the handicapped child. who might be liable to pay a fee even if the surrogate refuses to relinquish the child to them. This is because courts are generally reluctant to order specific performance as a remedy for the breach of contract for services. be held to be outside the ambit of contract law. Thus any surrogacy agreement is unlikely in any event to be specifically enforceable. More likely. In the Stiver-Malahoff controversy. in consequence. surrogacy. However. 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. if constituting a service at all. surrogacy agreements could validly be described as contrary to public policy and might. moreover.Lamb / THE ETHICS OF SURROGACY 409 the other hand. it should be noted that even if surrogacy contracts were held not to constitutebaby selling but. for instance.most surrogacy contracts provide for the payment of a reduced fee if the child is miscarried or stillborn. however. 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.On this basis. issues as to capacity would still have to be addressed. Presuming. that surrogacy contracts would not be void a b initio. especially where these services are of a highly personalized and individual nature. the nature of surrogacy agreements serves to illustrate that surrogacy agreements stipulate for the production of a child for a prescribed fee.40From its very essence. This argument. an injustice will be caused to the commissioning parents. even though a still birth involves gestation in the same sense that Live birth does. The . If wanting to reap the full financialbenefits from a surrogacy arrangement. it is unlikely this would assist the proponent’s cause in any material sense. they claim that a surrogacy agreementinvolves the purchase of the surrogate’sgestationalservicesrather than a child per se. rather. The claim that surrogacy equates with baby selling is thus strengthened.

such as those highlighted earlier in this article. In addition.410 FAMILY AND CONCILIATIONCOURTS REVIEW controversy. in this regard. for instance. Alternatively.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. 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. In fact. For instance. 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. and if so.41 Restricting the availability of surrogacy to certain groups could have certain advantages. Although feminist commentators also have regard to consequentialist considerations. the practical enforceability of the agreement would still be open to question. it is possible that a surrogacy arrangement might be held to be void ab initio and thus altogether outside the realm of contract law. attractive quality of a proven track rec0rd. usually centers around whether the availability of surrogacy should be limited to certain groups or classes of people. would probably ensure that specific performance would not be an appropriate remedy for the breach of a surrogacy c0ntract. feminist critiques of . 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.4~ The preceding examples all indicate that fundamental contractual issues are raised by a surrogacy agreement. attempts might be made to restrict the type of persons who can become surrogates. This is due to the nature of the surrogacy contract and the unique problems that could arise in the event of breach. some deem it desirable that only infertile married couples be permitted to contract with a surrogate to obtain a child. a surrogate who has successfully delivered at least one child would be seen by the commissioning parents to have the additional. even assuming that the surrogacy contract is legally enforceable.4~ However." 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. it would also invite allegations of discrimination along the lines of sexual orientation or marital ~tatus. The uniquely personal nature of the surrogate function.4~ Similarly.

or her body. In consequence. that the women should not be objectified. for instance.and third. Consequently. that the woman has the right to control her own fertility. a direct conflict is created between the surrogate’s autonomy (which is arguably a right) and the commissioning . that a woman should have control over her own body. Consequently. all these stipulationsare aclear attempt to curtail the autonomy of the surrogateduring pregnancy. 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. 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. Nevertheless. 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. However. For example. instead of surrogate parenting. 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.Lamb / THE ETHICS OF SURROGACY 411 surrogacy are generally concerned with the application of certain (feminist) principles to the practice of surrogacy. according to whether they transgress or conform to the applicable principles. a feminist assessment of surrogate parenting usually involves an application of the following three principles:“ first. such as an obligation to refrain from smoking and consuming alcohol or narcotics during pregnancy. that the surrogate must undergo amniocentesis and even abortion if amniocentesis reveals a particular type of abn~rmality?~ addition.“ A preliminary objection raised by feminists concernsthe terminology that is often employed within the surrogacy context. 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. second. This principle is therefore difficult to reconcile with many surrogacy contracts that stipulate. In particular. the merits of surrogacy are often assessed on an a priori basis. it would be just as accurate to describe the arrangement as “contractual parenting” or “collaborativeparenting. the surrogate mother) and no one else should direct the course of their medical treatment and pregnancy. it is generally recognized in feminist discourse that not all principles will be equally applicable in a particular context. it seems unreasonable to suggest that her mothering. most agreements have perhaps In more innocuous restraints.”53 Aside from linguistic concerns. Although the woman who becomes pregnant pursuant to a surrogacy contract is usually both the genetic and gestational mother of the child.

consent to act as a surrogate. It is therefore felt that although it is important to promote. a woman might even be striking a blow for freedom. This in turn.the mere signing of a surrogacycontractshould be unable to suffice as a waiver of what are. a dilemma will result if women find themselves unable to follow through with surrogacy contracts. In fact. and subject to changes of mind. perhaps they will not be viewed as responsible contractual agents generally. Hence some feminists would see a surrogacy contract as an unacceptable encroachment on the surrogate’sautonomy and a violation of her basic rights. To answer this. 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. lead women to endorse the practice of surrogacy. the meaning of informed consent in the surrogacy context must be identified. however. on its own. In consequence. aware of the pitfalls of surrogacy. in graphic terms. emotional. In consequence. Complexities nevertheless ensue when it is considered that other feminists. This has been heralded as a step forward. This is because surrogacy is able to demonstrate. after all. in any real and informed sense. fundamental rights. the less it can be said that anatomy equals destiny.412 FAMILY AND CONCILIATIONCOURTS REVIEW parents’desire to oversee and direct her pregnancy (which they have arguably paid for). 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. 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. point to the double-bind this argument might create. 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. on application of identical principles. begs the question as to whether a woman can. some feminists therefore endorse the right of women to enter into surrogacy contracts. surrogacy has been historically viewed alongsidecertain reproductivetechnologiescapable of freeing women from the tyranny of their biological destinies.” As women might in some ways be empowered by surrogacy. arrive at the diametrically opposite conclusion: namely. as the greater the extent to which women can control their reproductive capacities. According to this view. For this reason. as this failure would instead confirm the unfavorable stereotypes about women as flighty. . Other feminists. Due to their numerous pitfalls. by acting as a surrogate. the view of women as reliable contractual agents this should not. the very real extent to which women can exercise complete control over their reproductive functions.56If women are seen to be unreliable contractual agents in the field of surrogate motherhood.

claiming “that she had been chosen by God to show people not to do surrogate m ~ t h e r i n g . gave much insight into the hidden psychological traps that exist for the surrogate mother when she said. it is submittedthat it should include a woman’s ability to appreciate all the aspects and implications of the contract she is signing.62 Nevertheless.”” By contrast. that can be said about surrogacy arrangements is that individual reactions to the experience are unpredictable. a clone of my other little girl. Whitehead was actively casting aspersions on the practice of surrogacy. There. Mary Beth Whitehead (the surrogate in the notorious Baby M case). for instance. appeared before the United States Congress to ask that surrogacy be made a federal offense.Consequently. but a baby is one thing I can sort of give back.Lamb / THE ETHICS OF SURROGACY 413 Whatever definition of informed consent is adopted for this purpose. 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. ” ~1987. explained. “I signed on an egg.”61 Accordingly. therefore. Perhaps the most. 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. from a woman who is in pain from her infertility to a woman who has to give up her baby. participation in a surrogacy arrangement gives expression to deep.they derive much satisfaction from knowing that they have been able to help. other feminists feel that this does not address the question as . the quest of an infertile couple to obtain a much-wanted child. altruistic instincts. even if conceding that surrogacy is capable of working for some women. One woman. however. something I can give to someone who couldn’t have it any other way. who had In ~ also previously acted as a surrogate. her ability to accurately predict what her responses to her pregnancy will be.”57Even before the New Jersey Supreme Court decision. For others.Whitehead and Elizabeth Kane. the act of bearing a child for another woman constitutes an “act of love and generosity. for instance. in a unique and personal way. 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. other women who have acted as surrogates report that they actually gained much satisfaction from their participation in a sumgacy arrangement.’’60 some women For therefore. they threw doubt on many justifications given for surrogacy.“I’m not going to cure cancer or become Mother Teresa. claiming that surrogacy succeeds only in “transferring the pain from one woman to another. I didn’t sign on a baby girl.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.

That is. 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. Although it could be argued that these pioneers were themselves victims of the dominant male ideology.63This conviction could be due to many factors. such a position is reductive.68Due to the nontechnical nature of surrogacy (and the correspondingly less need for male intervention at any stage). preeminent among them being a concern that surrogacy could have potentially unsettling effects on the surrogate’s other children. 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. because infertile men are permitted to reproduce by inseminating a woman with purchased sperm. Hence. while the dangers of reproductive technologies should not be underestimated. A commonly expressed sentiment is that children should not grow up with the knowledge that some people have babies only to give them away. might wonder if they too are also available for purchase.” In this view of reproductive technology as a continuation of male domination over women. and thus the equal treatment of women requires that women should be permitted access to surrogacy. these concerns might be more pressing in the context of other more intrusive forms of assisted reproduction.~’ Whereas procedures such as surrogacy could increasethe capacity of women to control their own bodies. women. On the other extreme are commentators who feel that surrogacy is simply the female equivalent to sperm donation. This analogy breaks down when it is considered that sperm . it is probably 0verstated. this analogy between surrogacy and sperm banks is weak. In a similar sense to technology. 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. the concern is not so much with the technology itself but with the sociopoliticalcontext. who. 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. after all.414 FAMILY AND CONCILIATION COURTS REVIEW to whether it should be allowed to operate at all. surrogacy is simply the corollary of this privilege for women.6~ Some of the pioneers in this practice were. upon witnessing the birth and sale of a half-brother or sister. However. however. Hence it is a procedure that potentially rights imbalances currently within society.

particularly for those women most vulnerable to reproductive e~ploitation. race. a trend that seems likely to continue if surrogacy is to develop as an industry. is being singled out for condemnationonly on the basis that it is exploitative. even if surrogacy is seen as giving the infertile women an equal right to procreate. and often the payment of a large fee. The concern is thus that surrogacy threatens to create a subclass of “breeder” women whose humanity is reduced to a capacity to procreate. another is arguably enchained.n Hence surrogacy does contain overtones of economic exploitation. and class in reproductivedilemmas. in the abstract. who fought to keep her child. surrogacyalso requires the services of another woman. a woman who is arguably oppressed as a result of the arrangement. the privileged might employ surrogates from socially disadvantaged ethnic groups and Third World countries. 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.’~ In similar terms. for example. painless procedure. they advocate social protection for women as a group. whereas the commissioning parents were well-to-do. we are more inclined to see it for what it is and react with fear and revulsi~n. and the most oppressivecontracts are the low-paying ones: One woman in San Diego. generous payment for a surrogacy arrangement makes it less exploitative. Rather.500to be a surrogate. From one perspective. However.Lamb / THE ETHICS OF SURROGACY 415 donation is a quick. it is difficult to view the two procedures as analogous. surrogacy seems to be a rich person’s resort. that many women who have acted as surrogates were poor. having a different focus. due to the costs involved. It is probably no coincidence. . In addition. By contrast.feeling that poor and working-class women might be pressured to sell their reproductive capacities to upper-middle-classpersons. was paid $1. all the medical risks incumbent upon pregnancy. Moreover. The answer is probably only that we feel different about our sexuality and reproductive capacities than we do about our general productive ~apacities?~ Moreover. give less attention to the rights of women as individuals. as surrogacy is a form of “alienation” that is not yet commonplace.~’ second group of feminists usually gives explicit attention This to the intersectionof gender. surrogacy involves a commitment of 9 months. Thus for every woman that surrogacy can potentially liberate. Other feminists.’l There is probably some substance to these concerns. as embryo transfer procedures improve. For these reasons. Moreover. ahead of other forms of coercive labor. the fact that surrogacy is often highly remunerated (and hence a form of commerce) provokes a mixed response. Perhaps a stronger analogy with sperm donation would be to recognize a women’s right to donate and purchase eggs.

the feminist critique illustrates how attitudes to surrogacy will be defined not simply by individual perceptions but also by cultural preferences and expectations. orphaned. but these children are often inaccessible or unwanted by people willing to adopt. genetically related children might no longer be as laudable as it once was. Thus.416 FAMILY AND CONCILIATIONCOURTS REVIEW Perhaps the most oppressive result of all is to allow surrogacy but prohibit the payment of any fee. 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. as being undervalued has been something inherent in the working woman’s condition for some time. For instance. if for no other reason than that quantum of payment for women’s work is a contentious issue in society at large. or should we instead worry that large sums of money might tempt women. However. 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. They might. particularly poor women. a society might have no interest in promoting it79other than to gratify those individuals who wish to avail themselves of the procedure. the desire simply to produce additional.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. society’s interest is arguably to cater for these existing children rather than to concern itself with the (somewhat artificial) creation of more children.In consequence. or otherwisein need of good homes. There undoubtedly exist children who are abused. in an age where overpopulation and depletion of natural resources is rapidly becoming a problem. even if surrogacy is condoned. live . 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. to act against their better judgment?” Whatever conclusion is reached. Ultimately. Moreover. The problem in society instead seems to be a structural one. Moreover. though. Such a result fits into our tradition of noncompensation for women’s work. Should we worry that surrogates are poorly paid. 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. problems are likely to ensue. for instance. starving. it would be unjust to single surrogacy out on the basis of low pay alone. as many children currently exist who are in need of care and attention.surrogacyhas a sort of existential significance not found in adoption or certain other forms of assisted reproduction. neglected.‘6 But from another perspective.

Lamb I THE ETHICS OFSURROGACY 417 overseas or with unfit parents. 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. children. it is interestingthat in societies where kinship has different meanings.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. For in Ethiopia. there is nevertheless no consensus as to the most constructive role that legislation might play in dealing with these issues. The regulation of surrogacy is therefore a contentious question for which there are few guidelines and still fewer answers. as perceived by a Western culture. 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. culturally induced.83 THE. . This section seeks to identify and outline the distinguishing features to some of these alternatives before proceeding in the next section to assess them. and parenthood. in general. Moreover. rather than being “natural” or “inevitable. IMPLICATIONSFOR A LEGISLATIVE RESPONSE TO SURROGACY Although there is widespread agreementabout the problems that surrogate motherhood poses. ranging from endorsement to outright prohibition. COMPETING ALTERNATIVES There are several possible alternatives for regulating surrogate motherhood. they are equally important in explaining why surrogacy should be viewed as undesirable. Hence. whereas cultural perceptions are relevant to why surrogacy might be desired. 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. rather than being isolated to the surrogacy debate. surrogacy does not seem so startling.81 instance.In this regard.” these perceptions should be understood for what they are: reflections of current Western values and attitudes pertaining to women.” might be less of an issue in other contexts. prevail in society at large. we are therefore to some extent rejecting or endorsing images and attitudes that.

Accordingly. however. or a mediating t i d party. Second. surrogacy could be regulated. 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.a failure to take official cognizance of the problem will not diminish that exploitation but lead simply to unchecked exploitation. surrogacy could be prohibited outright. the following conclusions can be tentatively drawn. if surrogacy is in any sense exploitative. it would be unwise to pay undue attention to the practice. For example.For instance. This would entail enacting measures that have the incidental effect of curtailing surrogacy contracts. surrogacy could be obstructed. Fourth. allowing parties to contract at their own risk. Nor does female infertility look likely to decrease in the short term. but parties could not seek the assistance of the state to either terminate or enforce their bargains. This approach is arguably the one closest to the New Zealand stance on surr0gacy. surrogacy would be pennitted to operate. This is because the social ills alleged to follow from surrogacy . whether the participant be the commissioning parents. such as deeming a surrogacy contract to be unenforceable o by prohibiting the r payment of a fee in consideration of adoption. surrogacy could be endorsed and facilitated. First. and in light of the ethical concerns highlighted in the first part of this article. That is. might not necessarily be illegal. types and levels of fees would be prescribed or access be limited only to infertile married couples. such as by providing licensing authorities for surrogate agencies or procedures to bring potential parents and surrogates together. AN OVERALL EVALUATION Of the range of alternatives available.8~ reality is. hr Third. Participation in an arrangement could even be criminalized. the surrogate herself. Whatever one’s response to surrogacy might be.418 FAMTLY AND CONCILIATIONCOURTS REVIEW First. although access to it and its operation would be subjected to certain rules. that most legislative The responses tend to mirror a combination of these possible approaches. legislatorsmight simply ignore the surrogacy issue. few of us feel indifferentto it. Finally. On the other extreme. however. under this approach. Thus ignoring the issue of surrogacy will arguably not cause it to go away. the approaches of most jurisdictions is complex and multifaceted and hence not amenable to precise classification along the lines set out above. This approach implies that surrogacy is not per se illegal but is nevertheless strongly discouraged and difficult to enforce. Surrogacy arrangements.

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. and not conducive to informed public debate on the surrogacy question. Moreover. certain variables present within individual arrangements might make some contracts more innocuous than others. this is likely to be perceived simply as an endorsement of surrogacy and therefore as inappropriate. The preceding ethical analysis raised numerous actual or potential problems that surrogacy engenders. In consequence. Moreover. the issue will inevitably be raised as to whose values are to predominate. 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). it is submitted that both the obstruction of and the regulation of surrogacy emerge. surrogacy should not be endorsed. whereas surrogacy might have its dangers. 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.Lamb / THE ETHICS OF SURROGACY 419 are nonspecific. If a priori considerations are held to be determinative of the surrogacy debate. In addition. they are nevertheless not universally shared. endorsing an issue as complex and multifaceted as surrogacy simply on a principled basis would arguably lead to an oversimplificationof the issues it raises. In similar terms. It appears that so long as infertile couples and willing surrogates exist. Although these viewpoints are usually sincerely held. making it still more difficult to detect abuses and to protect all parties involved. no preference is expressed between the two. Rather. 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. as the most desirable legislative responses to surrogate motherhood. surrogacy will continue. It is submitted. inflexible. thus illustrating that it is too dubious a practice to be deserving of enthusiastic official endorsement. In addition. Moreover. a priori arguments tend to stem from certain ethico-religious standpoints. they have sufficient flexibility to deal . almost by elimination. surrogacy is likely to be prohibited outright only if credence is given to certain a priori objections to surrogacy-that is. that this approach is rigid. this choice will depend on the nature and efficacy of a jurisdiction’s existing legal structure and the individual preferences of each legislature. All these observationssupportthe view that surrogacy should not be prohibited outright. however. if it is felt that surrogacy is wrong on principle and thus should not be permitted under any pretext. In a pluralistic society. Whereas facilitating the practice of surrogacy (such as by regulating agencies) would have the advantage of allowing the practice to operate under public scrutiny.

For instance.420 FAMILY AND CONCILIATION COURTS REVIEW with each complexity as it arises. This is not to suggest that obstructionor regulation of surrogacy is entirely without disadvantages. 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. these approaches permit the practice of surrogate motherhood to be open to analysis and debate. Nevertheless. in turn. This. Closer examination. reveals myriad and diverse ethical issues. CONCLUSION On the surface. As legislators are human and thus not endowed with prophetic powers. it will be extremely difficult for a legislature to be adequately predictive. As outlined above. surrogate motherhood appears to be an ideal and readily workable solution for the childless couple. More important. From this position of flexibility. These approachesare therefore compatible with compromise and are therefore able to take cognizance of various perceptions of surrogacy in the community.85 The ethical controversy surrounding surrogate motherhood is both complex and interesting. 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. however. 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. sets the scene for informed public debate. however. herald it as a reproductive advancement and one capable of reducing the injustices of infertility. 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.86By contrast. surrogacy can be dispassionately studied (insofar as this is possible) and its actual consequences monitored and assessed. Surrogacy’s supporters. on one hand. and thus no response should be criticized on this basis alone.88 . these two approaches would enable the law on surrogacy to develop on an ad hoc unprincipled basis. surrogacy’s opponents condemn it as a device to “transform the surrogate into a container. 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. this is a dilemma of the human condition itself.

J. n. a professional New Jersey couple.because Abraham’s wife (Sarai) bore him no children. 9. Although a deal is undoubtedly still a deal. 4.of a baby girl. The Stems then commencedacivil action against the Whiteheads. 537 A.Celeste Schejbal-Vossmeyer. it perhaps emerges that there is no reason for society to encourage surrogacy contract^. 1986. This resulted in a partially successful. In a profound and unique sense. on March 27. 1988). n. 8. Whitehead repudiated the surrogacy agreementand announcedher intention to keep the. surrogacy raises the question of whether there should exist. in a civilized society. a mixture of altruism and financial concerns 1173. the commissioning mother (Elizabeth Stem) was not actually infertile. 5. in this context. refers to the most common incidence of surrogacy. entered into a surrogacy agreement with housewife Mary Beth Whitehead. 1. appropriate positions for jurisdictions to take toward surrogacy could feasibly range anywhere between prohibition of surrogacy contracts and tolerance of them. due to their very nature. 11). M. 4 . Surrogacy has been practiced sincebiblical times. even the most market-oriented societies acknowledge a need to limit the enforceability of the unconscionable bargain. Unless otherwise stated. ensuring that fewer children are now offered for adoption. Contractual certainty. 2d 1227 N. some things that money just cannot buy. child. although an important social objective. 6. Sarai admonished Abraham to “lie with” her handmaid. should therefore not be seen as overriding in the surrogacy context. and encouraging adoption of existing children. For instance. at 1172 (hereafter cited as “What Money Cannot Buy”). surrogate motherhood. In the Baby M saga (supra. n. Hagar. Soon after the birth. Elizabeth and William Stem. 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). One commentator has noted that artificial insemination is a “centuries-old technique which requires a device no more complicatedthan a turkey-baster” @bid. preventing exploitation of women. “What Money Cannot Buy: Commercial Surrogacy and the Doctrine of Illegal Contracts.*^ Given society’s interests in discouraging commercialization of sex and childbearing. 2.. who subsequentlybore them a child (Genesis 16: 1.for instance. although pregnancy threatened to worsen a preexisting medical condition (multiple sclerosis).” 32 Saint Louis University Lau Journal (1988).g0 NOTES 1. 3. Idem. See supra. . the motives of Mary Beth Whitehead (the ) surrogate) were. This is due partially to increasing access to contraceptionand abortion and a decreasing stigma being attached to single parenthood.2).though highly publicized and protracted action to obtain custody of the child (see In re Baby M . should simply not be viewed as items of barter. 7.Lamb / THE ETHICS OF SURROGACY 421 Due to these uncertainties. Some things. In 1985.

” at 211. See. The Vatican Statement. 1990. “Surrogate Motherhood Contracts in Louisiana: To Ban or to Regulate?” 49 Louisiana Law Review (September 1988). S.M c h (Ed.. Idem. at 174. 26.” at 1763. for instance. 35. 12. under Section 3 of the Illegal ContractsAct 1763 (hereafter cited as “Privacy”). 210.All parties involved (the Stivers and the Malahoffs-the commissioningparents) initially rejected the child.” 17. “Recent Works on ReproductiveTechnology” 15 Religious Studies Review (July 1989). Keller. at 61. “Respect for the unity of marriage and for conjugal fidelity demands that the child be conceived in marriage. come under the definition of . La Puma et al. 22.). Although surrogacy. “Is Surrogacy Exploitative?“ in G.” 76 Georgetown Law Journal (1987-1988). M. 1987) at 1133 (hereafter cited as “Womb for Rent”). “Privacy. at 60-61. Surrogate Motherhood-The Legal and Human Issues (1988). “Recent Works. Idem. 19.” at 216. 25. 20. J. a surrogate. 23.” American Journal of Obstetrics and Gynecology (January 1989).. delivered a baby with micmcephaly (a small head). at 5 (hereafter cited as Surrogate Motherhood). which indicatedthat the child was mentally retarded. A.” at 1133. Judy Stiver. 37. 34. Anderson. B. is arguably not a ‘ K i h technology” as such. states. 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. althoughthemajority of modem Catholic theologians no longer endorse it. Surrogacy and the Baby M Case. 21. This categorization is taken from the guest lecture given by Professor Campbell to the Law and Medicine class. 29. arguments under the heading of “ContractualIssues’’and “TheFeminist Response” (infra. “Womb for Rent: Ethical Aspects of Surrogate Motherhood. 14. at 173 (hereafter cited as “Is SurrogacyExploitative?”) 31. 32. 33.” 87 Canadiar Medical Association Journal (December 15. “Recent Works. for instance. 30. 13. 36. April 23. In January 1983.422 FAMILY AND CONCILIATION COURTS REVIEW 10. the Vatican statement.” at 215. University of Otago Faculty of Law. this would involve a finding as to whether a surrogacy contract would. In the New Zealand context. 11. This was apparentlythetraditional doctrineofthe CatholicChurch. Idem.. Idem. “Recent Works. Idem. Allen. 16. for instance. at 146 (hereaftercited as “Surrogate Motherhood Contracts”). “Surrogacy and Shakespeare: The Merchant’s Contract Revisited. 24. 27. Idem.Bhimji. These headings are for organizational convenience rather than representing entirely distinct categories of argument. Field. See. “Privacy. Ibid. “Womb for Rent. Ibid. in requiring no particular medical expertise to initiate. Legal Issues in H m n Reproduction (1989). 28. 18. a 214 (hereafter cited as “Recent Works”). M. at 8 et seq). Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation (1987) (hereafter cited as The V2’canStatement). t 15. Freeman. B.

Idem.Idem. t 0 61. “Male Order Babies. 99. ShulamithFirestone (1970) an exceptional example of a feminist who saw artificial reproduction as a liberating force for women.” at 160. at 3.The relevant provision under New Zealand law is Section 25 of the Adoption Act 1955. and women who are fertile but wish to forgo pregnancy for reasons of career. 3 . 4 2 .See supra. 41.‘What Money Cannot Buy. was 55.“Surrogate Motherhood: An Argument for Denial of f at Specific Performance. 46. 5 . ConnoZ(1980)1 ChD.As it is undesirable and in most cases impossibleto compel an unwillingparty to maintain continuous personal relations with another. at 65-66. 59. 65. a 24.Idem. 52.a surrogacy contract is likely to be void ab iniiio.‘Who Is My Mother?“. t 4 57.” at 1172..Idem. 2 f 67.Idem. a 2 .” at 2 2 . 39. 48. single persons. Those potentially discriminated against include infertile unmarried cohabitants.E Kane. Ibid.“Recent Works. See Morgan. certain feminists (such as Selma Sevenhuijsen and Juliette Zipper) view some reproductive technologies as opportunities for women to help women (“Recent Works. even today.Idem. 1) 56. Surrogate Motherhood. n. .‘Who Is My Mother”. homosexual and lesbian individuals or couples. convenience.” 329 Nature October 15. 61. t 2 63.See also infra.. t 60. 40. 44. at 4. “Making Motherhood Male: Surrogacy and the Moral Economy of Women. 40.Surrogacy Company. 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.” at 214.“Surrogate Motherhood Contracts.Ibid.Rosier.Ibid.For instance.P. at 7.” Broadsheet (April 1 8 ) at 19. 66. a 70-71. “The Man Made Brothel.” 22 Columbia Journal o Luw andSocia1Problems (1988-1989).1987.Surrogate Motherhood.” 1 Journal o Law andSociety (1985).. 45 and accompanying text. ‘Who Is My Mother?’ Broadsheet (March 1 8 ) at 24. 3 54.For instance. 58. 43.Surrogate Motherhood.Ibid..“Recent Works. 45.Idem.” in Man Mude Women: How New Reproductive TechnologiesAflect Women (1987).at 231.Idem. 8 which criminalizesthe payment of money in consideration of adoption. n. or aesthetics. . it is well established that a contract for personal 4 8) services is not specificallyenforceable (Rigby v. a 2 . G. 99.Lamb / THE ETHICS OF SURROGACY 423 an illegal contract (on grounds of being contrary to public policy). Suh. 50. t 51. 49. 47. Although these views are not generally put in an historical context. 357. a 7 .See also M. 42. Corea. 64. at 577.“West German Ructions Over US.” at 212. If so.

75. at 25-26. at 26. Swan R. at 222.J. Surrogate Motherhood. Idem. Idem. at 152. em 85. Idem. 73. at 38. Lamb is currently on a Rhodes Scholarship at Balliol College in Oxford. 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. Idem. . Section 25 of the Adoption Act 1955 criminalizesthe payment of money in considerationof adoption. 74. 78. for instance. 86. at 26. M. Baby M.” at 1135. 1988). “Motherhood. Jones and W. at 152. 71.” 22 The Law Teacher (1989). Idem. at 1843. Surrogate Motherhood. 70. at 217. 83. “Who Is My Mother?”. Idem. “Womb for Rent. In re Baby M. 88. Anna. 1987). “A Comparative Look at Surrogacy. “Who Is My Mother?”.” at 1133. J. 81.” 76(2) Georgetown Law Journal (1987-1988). 89.1249 (N.” American Bar Association Journal (June 1. Ibid. M. Surrogate Motherhood. 87. “Surrogacy = Baby Selling. Weston.2d 1227. Surrogate Motherhood. 537 A. Feinerman. 79. 82. at 214. G. “SurrogateParenting:What Can We Learn From Our British Counterparts?” 39(1) Case Western Reserve Law Review (1988-1989). 76. 80. These drawback might include. and Beyond. “Womb for Rent. at 25. Baggish. 90. 69. the concern that surrogacy constitutes an impermissibleintrusion into the maritalrelationshipor the concern that it degrades women. 77. “Who Is My Mother?’. For instance.. 72. 84.424 FAMILY AND CONCILIATION COURTS REVIEW 68. at 27.

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