When “Baby M” celebrates her first birthday this month, it is likely she will still be at the center of a profound debate over whether surrogate motherhood should be outlawed or regulated by law. Her natural father and his wife, William and Elizabeth Stern, agreed to pay a woman $10,000 to conceive and carry the baby to term.
That woman, Mary Beth Whitehead, became pregnant by Stern through artificial insemination. After delivery, she found she could not part with the baby. The custody battle now raging in the Superior Court of New Jersey is expected to set the nation’s first precedent on surrogate contracts—a burgeoning solution to infertility for America’s estimated 10 million infertile couples.
Beyond the intractable legal issues involved in determining where the baby—designated in court papers as “Baby M”—belongs, the case raises important ethical questions. Leading Christian ethicists seriously question the practice of surrogate parenting for a variety of reasons. But to this point, the debate has been dominated by lawyers and entrepreneurs grappling primarily with the technical and pragmatic aspects of the controversy.
The moral deliberation centers on three basic questions: How should society assess the marriage and parent-child relationships? Do surrogate arrangements violate the human dignity and personhood of the surrogate mother? And finally, to what lengths should society go to guarantee parenthood to those who want it?
There is less concern about the toll on relationships when a donor male (out-side the marriage relationship) is the third party. Hiring a surrogate mother represents a quantum leap in third-party participation in reproduction, weaving a complicated web among those involved. Separating procreation from marital intimacy has long troubled Roman Catholic moralists, who reject artificial insemination by donor under any circumstances.
Ethicist Lewis Smedes of Fuller Theological Seminary wonders whether surrogacy “violates the kind of relationship that ought to exist between marriage and child bearing.” He sees it not as adultery, but rather as a highly questionable “use of technology to inject other people into the intimate, committed relationship of marriage.”
Moral theologian Richard A. McCormick, S.J., who served on a special ethics panel of the American Fertility Society (AFS) summarizes a conservative Catholic point of view: The use of any third party “fundamentally severs procreation from the marital union.” Unlike adoption, he maintains, any such arrangement deliberately “brings into the world a child with no bond of origin to one or both marital partners, and therefore blurs the child’s genealogy and potentially compromises the child’s self-identity.”
Robert G. Wells, a Long Beach, California, obstetrician/gynecologist, says theological considerations call surrogate arrangements into serious question. “The Bible doesn’t say three should become one flesh,” he points out. “God holds [the marriage] bond to be sacred and not to be defiled.” For this reason, Wells no longer offers infertility patients the option of artificial insemination by donor.
Stepping outside the boundaries of marriage to create a child—as opposed to adopting a child whose conception was not premeditated—presents scores of relational dilemmas. In the Baby M case, a key factor is the attachment Whitehead developed for the baby, in spite of her stated intention to part with the child when it was born.
After giving birth on March 27, 1986, Whitehead became depressed and suicidal. She gave the baby girl to the Stems, then pleaded with them to let her take the infant home for one week. Her request granted, she and her husband fled with the child to Florida. The Stems hired a private investigator to track them down before the case went to court.
Of an estimated 500 contractual surrogate arrangements to date in the U.S., there are at least three other cases where the surrogate mother has insisted on keeping the baby. Those cases have either been settled out of court or have established no significant guiding precedent. (The surrogate mothers have kept the babies.)
Wells said women who enter into pregnancy as surrogates do not realize how close they might feel toward the child. He notes the “tremendous grief of women who have miscarriages. We see as obstetricians a bereavement as strong as if the unborn child was a member of the family. To ask someone to reject a baby is asking an awful lot.”
Beyond the personal trauma of the surrogate arrangement, ethicist Daniel Callahan, director of the Hastings Center, believes a larger principle is at stake. In a New York Times essay, he wrote, “We will be forced to cultivate the services of women with the hardly desirable trait of being willing to gestate and then give up their own children, especially if paid enough to do so.” If surrogate agreements are regulated by law, he notes, the law would likely have provisions for screening out people like Whitehead.
By institutionalizing surrogate motherhood, he continues, “we introduce as destructive a notion as can be imagined: a cadre of women whose prime virtue is what we now take to be a deep vice—the bearing of a child one does not want and is prepared not to love.”
A second major ethical concern is the commercialization of conception and the accompanying risk that surrogates will be exploited. Generally, surrogate mothers receive a fee in the range of $10,000 in exchange for carrying a live, healthy baby to term. William L. Pierce, president of the National Committee for Adoption, observes, “It has been illegal for more than 100 years in this country to buy and sell people. If surrogate arrangements are regulated, then the protection of the law is granted to a practice that is just as abhorrent.”
Currently, all 50 states have laws prohibiting the selling of babies. Twenty-nine states have laws stating that the husband of a woman who is inseminated is considered the legal father. In contrast, with surrogate contracts the opposite holds true: the man who donates sperm is considered the father, his wife the mother.
Critics of surrogacy fear it could lead to the exploitation of women in need of money, including Third World women who might be retained as “breeders” for the wealthy. A more immediate concern about the surrogate experiment is the lack of data available on long-term effects on surrogates, couples who employ them, and the children who belong, genetically, to both parties.
In a report published last year, a committee of the American Fertility Society stopped short of urging the prohibition of surrogate mothering. However, it did express “serious ethical reservations,” and recommended that it be pursued only “as a clinical experiment.”
Even this cautious approach draws criticism from ethicists who believe the risks are too great to justify proceeding experimentally. Leading Protestant ethicist Paul Ramsey notes, “One cannot morally find out whether harm will be done, because to find out, women would be placed at serious, irreversible risk of that grave harm.” He adds, “Why is it so difficult for physicians to face a categorical ethical prohibition?”
Technology: Servant Or Master?
A third area of concern relates to broader questions of purpose: Should modern medicine and law stop at nothing to allow everyone who wants a genetic child to have one? The rationale for permitting surrogate arrangements, according to the AFS ethics committee report, is based on the presumed right of married couples to reproduce. Surrogate parenting has become a bigger issue because of the increasing incidence of infertility.
The AFS report recommends considering surrogate contracts only when medically necessary. Such would be the case if the woman has no uterus or has some other physical barrier to pregnancy, or if she carries a genetic defect she does not want to pass to her offspring.
The Sterns went the surrogate route because Elizabeth Stern has a mild case of multiple sclerosis she feared could result in her paralysis or death if she became pregnant. Observers are concerned, however, that surrogate arrangements could be desired simply for convenience.
The overwhelming majority of people who contemplate a surrogate arrangement consists of infertile couples. For these people, says ethicist Smedes, the Christian community needs to express deep compassion. At the same time, he adds, those couples, particularly if they are Christians, may need “to accept the possibility that it may be God’s will that they remain childless. People need to be helped to have courage to accept the will of God in barrenness.”
Smedes believes the surrogate debate needs to grapple with the question “Should we encourage people with personal problems to seek solutions that to adopt three children, the youngest of whom is now 22. He reports being plagued even by the church’s ambivalence about adopted children, noting that a Reformed church agreed to baptize their first adopted child only under protest.
Smedes believes the surrogate debate needs to grapple with the question, “Should we encourage people with personal problems to seek solutions that have so many tragic possibilities?” Callahan, in his New York Times commentary, agrees that the surrogacy debate should grant priority to society, rather than individuals. He writes, “Infertility is not a problem that cripples us as a society. We are not underpopulated. On the contrary, we already have too many children being born under less than desirable circumstances.… To tolerate a method of parenthood that is built on confusion hardly seems wise.”
Pierce, of the National Committee for Adoption, expects legislation to be introduced in several states to legalize the practice of surrogacy, which is currently unregulated. He noted that the American Bar Association has developed a model surrogacy act. “Key members of the legal profession are pulling out all the stops to set this up as something legitimate,” he said. Pierce is calling on religious leaders to develop a joint statement opposing legalized surrogacy.
By Beth Spring.
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