PHILOSPHY 235 EC

Biomedical Ethics

Term Paper

A Critique of the Ethical Applicability of Commercial Surrogacy as a Viable Method to

Counteract the Effects of Infertility

Prepared by: Nazar Hajee (5836549)

November 22nd, 2010

 2

As a result of the rapid technological advances being made in the health care

system, controversies, and conflicting scopes of analysis become apparent once

consideration is paid to the medical ethics being applied to any given situation.

Technology and a consequent increased knowledge capacity in the medical field have

allowed us, in various circumstances, to counteract the ‘will of nature’, such as in the

case of a couple who have to suffer through the unfortunate inability to conceive a child

of their own.

In Canada, the practice of commercial surrogacy, whereby a surrogate mother is

financially compensated for carrying and delivering the child, has been outlawed under

the Assisted Human Reproduction Act of 2004. [i] However, the law, which has been

criticized for being vague, does not discriminate against surrogacy that is engaged in for

purely altruistic means; an act employed based simply on good-will for others who are

not fortunate enough to conceive and birth a child themselves. [ii]

Surrogacy in general, the method whereby a woman is given the responsibility to

carry and give birth to a child for another individual or couple, has been hotly debated. Of

most concern to those involved in the debate is whether or not surrogacy rejects or

appeases generally accepted ethical and moral values; regarding ideal conceptions of

family, exploitation of poor by the rich, and impinging on the rights and freedoms of

individuals.

This essay will seek to disseminate the arguments both for and against the

practice of commercial surrogacy. As was mentioned, various social and moral norms

contradict the righteousness and ethical applicability of commercial surrogacy.

Furthermore, consideration must be paid to the psychological and physical well-being of

 3

the parties involved in what is essentially a business transaction. However, it will be

evident, upon clarification of all the associated fears pertaining to commercial surrogacy,

that if undertaken responsibly and according to legal principles, it can be a truly

rewarding experience, for the parties directly involved, as well as for society in general.

Those who seek to limit the practice of commercial surrogacy based on its ethical

shortcomings tend to focus much of their arguments on psychological effects and

complications that could arise when parties undertake a collaborative effort to conceive a

child. Firstly, anti-surrogacy proponents claim that the husband or partner of the

surrogate mother would be susceptible to psychological stress based on two factors;

inability to engage in sexual relations with his partner while she is in the more delicate

phases of the pregnancy, and also from the fact that he may suffer from the social

indignation that comes with having his wife be pregnant with the child of another man.

[iii]

However, the aforementioned arguments are relatively weak in that they

realistically would not be the most troubling aspect throughout the surrogacy process. If

the surrogate mother did indeed have a partner from the outset, he would surely be

involved in the preliminary stages and discussion of legal principles relevant to the

surrogacy process. This, in effect, ensures that all the parties involved are adequately

educated about the process and are made aware of the sacrifices that must be made in

order for it to be accomplished successfully and without complication. Secondly, the

argument citing the psychological strain that is associated with the man’s wife being

pregnant with another man’s child is irrelevant due to the fact that the surrogacy is in fact
 4

a commercial transaction, and does not involve romantic feelings of any sort. Even in the

case of a traditional surrogacy, whereby a man’s sperm is inseminated into the surrogate

mother’s egg, no romantic sexual relation is occurring, and the act is purely scientific and

utilitarian. [iv]

An additional element to the argument against commercial surrogacy claims that

the restrictions that are consequently placed on a surrogate mother can infringe upon her

rights and liberties. For example, the surrogate mother who has an affinity for a risk-

taking lifestyle through participation in extreme sport activities such as sky diving will

naturally be prevented from engaging in these sort of activities during pregnancy, as they

are potentially harmful to the growing fetus. [v] However, this argument, similar to those

made regarding the inability to engage in sexual relations whilst carrying the child, is

weak. Upon agreeing to be a surrogate mother for another couple’s child, the mother will

be made aware of all the necessary guidelines she and her own family must follow so as

not to jeopardize the health and future well-being of the growing fetus. These, like

abstaining from sexual intercourse during the more delicate phases of the pregnancy, are

sacrifices that must be made if one is to abide by the contractual obligations provided at

the start of the process.

There are those who denounce the ethical applicability of commercial surrogacy

based on issues of financial inequality. Supporters of this view cite the fact that enlisting

a surrogate motherhood, either directly or through an agency, is a very costly procedure

that can cumulatively reach the hundreds of thousands of dollars on occasion. As a result,

only the more financially sound couples are granted the opportunity to solve their

infertility problem via this method. Furthermore, an argument to denounce commercial

 5

surrogacy is made based on the idea that poor people will be exploited by the rich, and

due to their desperate situation, will be tempted into taking any money that is offered.

There is a risk that the rich couple, who is enlisting the surrogate mother, will take

advantage of their superior position by abusing the legal aspects of the transaction via

contracts as well as not adequately providing the surrogate with a suitable remuneration

for her involvement in the process. [vi] However, the argument can also be made in

support of this financial exchange based on the fact that we as individuals have the right

to choose how we use our own bodies, and that if a women is aware of what is required

from her and her body, she should have the right to grant another couple the chance at

having a child. There should also be no limits placed on how the woman chooses to earn

money that she may be desperate for, so long as the method does not oppose the law, nor

will it cause intentional harm to any person, whether they are directly involved or

external to the process. [vii]

In discussing the morality of a procedure that is evidently only available to those

who are financially stable, the argument can be made for the presence of a large number

of middle-class families who have saved up the required amount of funds to engage in a

commercial surrogacy transaction. Also, the argument denouncing surrogacy based solely

on financial accessibility is, as Dr. Ornstein states, “a weak one”, in that the rich are

entitled to purchase other luxuries in life that are not available to the poor such as

European sports cars and large mansions for example. [viii] To limit the spending power

of one class due only to the disproportionate accessibility of such a service like

commercial surrogacy is entirely unjust, and is in fact an infringement upon individual

rights granted to those in a capitalist system such as our own.

 6

One of the more morally sound arguments that oppose the act of commercial

surrogacy stipulates that in some circumstances, the surrogate mother may in fact be

carrying a child for a homosexual couple that naturally are incapable of conceiving a

child on their own. The increasing number of instances where homosexual couples are

enlisting the help of a surrogate mother has led to widespread fears that society’s

stabilizing force, the ‘traditional family’, is being threatened. [ix] However, before citing

just one example, it is safe to say that there is definitely no correlation between the

suitableness, or lack thereof, of a homosexual couple and raising a normal, productive

human being. Dr. Ornstein recalls a real-life situation wherein a male, homosexual couple

enlisted the assistance of a surrogate mother to carry a child for them. Upon giving birth,

the children were taken home and treated with the utmost care and love, with no expense

spared on their behalf. [x]

The fears associated with this scenario are based in more conservative religious

ideology, and do not necessarily account for social evolution that is clearly in evidence

today, in that the social stigma associated with homosexuality are gradually being

loosened. There is also no evidence to support that a gay couple will raise a child who

suffers from psychological trauma.

With regards to the debate on how ethical commercial surrogacy is, comparisons

have been drawn between prostitution and slavery, which seek to place commercial

surrogacy under these morally despicable practices. With regards to prostitution, the fears

that surrogate mothers will be abducted or forced into carrying children so that their

handlers can make a profit are unfounded. This is due in large part to the contractual

basis of the surrogacy arrangement. As has been stated, the relevant parties will be
 7

educated about the conditions and guidelines which must be followed if they are to take

part in the surrogacy process. To assume that women are susceptible to abuse for

someone else’s gain in this situation is simply that, an assumption. Assuming that women

are inferior and incapable of exercising their own rights with regards to the use of their

body is in itself an unjust act. [xi]

Advocates of the illegality of commercial surrogacy often argue that the practice

promotes a system whereby female surrogates and the children they carry are seen as

commodities that can be purchased or adopted. Margaret Somerville of the McGill Center

for Medicine, Ethics and Law states that “People worry about poor women being

exploited, selling their wombs for a few thousand bucks”. “There’s also a symbolic

impact — children as products.” [xii]

Until a situation presents itself wherein an illegal agency abuses the rights of

women, forces them to become surrogate mothers, and consequently makes a profit, one

cannot argue against commercial surrogacy based on that reasoning alone. Widespread

fears for what could potentially happen do not suffice as adequate grounds for making

commercial surrogacy illegal.

Finally, there are evident fears towards commercial surrogacy based on the

potential for a surrogate mother to grow attached to the child she is carrying, to the extent

that she would not wish to return it to the original couple that sought her assistance. This

has in fact happened before but the argument is not solid enough to warrant its use as a

prime factor for limiting the occurrences of commercial surrogacy. [xiii] The fact that the

surrogacy is founded on a legal contract, which has been entered into by mature

consenting adults, ensures that the surrogate mother has no right to demand custody of a
 8

child. Although not being born by the original mother, the child is at least 50%

genetically linked to the original couple and is not susceptible to the same legal codes

that govern adoption cases. The couple that sought the assistance of the surrogate mother

is quite simply renting her fully functioning organs, which she has consented to provide,

for a fee. Therefore, there is no one side that is gaining more or less from the mutual

agreement. In fact, there is legal precedent in which the California Supreme Court has

ruled against the surrogate mother who sought custody of a child she carried and gave

birth to for another couple. [xiv]

Upon close analysis of the opposing arguments both for and against the act of

commercial surrogacy, it is evident that the claims denouncing its moral and ethical

applicability are based on valid fears. Through a psychological and social lens, there are

risks associated with the process of commercial surrogacy pertaining to the exploitation

of the poor by the rich, and the psychological effects that may put a strain on the

relationship of the surrogate mother and her family. In addition, there are those who fear

that commercial surrogacy will promote prevalence of single-sex families raising children

in an environment that is not conducive to the ‘traditional family’ structure. Furthermore,

there are widespread fears that commercial surrogacy may lead to a situation similar to

that of the organ black market, whereby surrogate females and children are seen as mere

commodities in the process of business enterprise.

The fears pertaining to homosexual couples raising children have no place in our

society today. Canadian culture has bypassed the homophobic stereotypes associated with

traditional family and it is only a matter of time before our race evolves to be more
 9

accepting of differences when those differences do no direct harm to the public at large.

Upon ensuring that the transaction is agreed upon based on contractual principles

that are thoroughly discussed and made aware of prior to any action, the act of

commercial surrogacy can be deeply rewarding to all parties involved. The fact that it is a

contractual agreement between consenting adults also limits the reasonableness of the

‘black market’ argument that seeks to denounce commercial surrogacy as being

exploitative and illegal. The multiple benefits gained by bringing life into the world

where it would otherwise not be possible are surely the most formidable defense of the

ethical applicability of commercial surrogacy and the only lasting result is a ‘pro-life’

situation.
 10

Bibliography

i. "Assisted Human Reproduction Act." Department of Justice Canada. N.p., n.d.

Web. 17 Nov. 2010. <laws.justice.gc.ca/eng/A-13.4/page-1.html>.
ii. CBC News. "Paid surrogacy driven underground in Canada: CBC report." CBC
News. N.p., 2 May 2007. Web. 17 Nov. 2010.
<www.cbc.ca/health/story/2007/05/01/surrogates-pay.html>.
iii. Ornstein, Jack. "Study Notes." EConcordia. Web. 17 Nov. 2010.
<http://www.econcordia.com/courses/biomedical_ethics/lesson10_sm/002.asp>.
iv. "Types of Surrogacy."Canadian Surrogacy Options Inc.. N.p., n.d. Web. 17
Nov. 2010.
<http://www.canadiansurrogacyoptions.com/types_of_surrogacy.html>.
v. Ornstein, Jack. "Study Notes." EConcordia. Web. 17 Nov. 2010.
<http://www.econcordia.com/courses/biomedical_ethics/lesson10_sm/002.asp>.
vi. Ber, Rosalie. "Ethical Issues in Gestational Surrogacy."Theoretical Medicine
and Bioethics 21.2 (2000): 153-169. SpringerLink. Web. 17 Nov. 2010.
vii. Ornstein, Jack. "Surrogate Motherhood." Lecture. PHIL 235 EC: Lesson 10.
Montreal. 17 Nov. 2010. EConcordia. Web. 17 Nov. 2010.
<http://www.econcordia.com/courses/biomedical_ethics/resource_centre/multi
media.aspx?id=17>.
viii. Ornstein, Jack. "Study Notes." EConcordia. Web. 17 Nov. 2010.
<http://www.econcordia.com/courses/biomedical_ethics/lesson10_sm/002.asp>.
ix. Ibid.
x. Ibid.
xi. Ornstein, Jack. "Surrogate Motherhood." Lecture. PHIL 235 EC: Lesson 10.
Montreal. 17 Nov. 2010. EConcordia. Web. 17 Nov. 2010.
<http://www.econcordia.com/courses/biomedical_ethics/resource_centre/multi
media.aspx?id=17>.
xii. Grenier, Julie. "The morality of renting wombs- Capital News
Online." Carleton University - Canada's Capital University. N.p., n.d. Web. 17
Nov. 2010. <http://www.carleton.ca/JMC/cne
xiii. Ornstein, Jack. "Study Notes." EConcordia. Web. 17 Nov. 2010.
<http://www.econcordia.com/courses/biomedical_ethics/lesson10_sm/002.asp>.
xiv. Johnson v. Calvert. Supreme Court of California. 20 May 1993. Google
Scholar. Web. 17 Nov. 2010. <http://scholar.google.ca/scholar_case?
case=112980646483731250&q=commercial+surrogacy&hl=en&as_sdt=2002>.