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- Leticia Villalba
Surrogacy – A Great Option to Infertility
In today’s society, women that are unable to become pregnant naturally due to infertility are resorting to surrogacy to have their children. With surrogacy being a complex process, it involves many different moral, ethical, and legal issues that are challenging the acceptance of this assisted reproductive treatment by society. However, surrogacy should only be viewed by society as a great option to infertility based on sound moral, ethical, and legal arguments. In effect, this view will help eliminate adverse criticism against the ones resorting to this reproductive alternative to create a family and also against the child later in life. Legislators should pass laws to help and protect the rights of surrogate mothers, intended parents and children.
In order to fully understand the ethical, moral, and legal arguments surrounding surrogacy it is important to understand what surrogacy is. According to the Online Merriam-Webster dictionary, the definition of surrogacy is “the practice of serving as a surrogate mother” (Surrogacy) and to surrogate means “to put in the place of another” (Surrogate). These two definitions put together allow surrogacy to be better defined as a process whereby a woman bears and gives birth to a child that she will not raise but will give to the intended infertile couple.
There are two types of surrogacy, traditional and gestational. In both types of surrogacy, the surrogate mother can either be a close friend, a family member, or from a surrogacy agency and the assisted reproductive technology (ART) method is used to assist with the surrogacy processes.
With the traditional surrogacy process, the surrogate mother becomes pregnant by being artificially inseminated with the sperm of the intended father. As the sperm is inserted into her uterus, via a simple medical procedure, when her mature egg is released by the ovary she can conceive and later give birth to a child (ACOG Committee on Ethics). Traditional surrogacy was the only process available due to technological limitations when surrogacy was first introduced. But as technology has advanced in the reproductive field allowing fertilization to happen outside the womb, infertile couples are choosing gestational surrogacy over traditional. Legal issues are greater with traditional surrogacy as the surrogate mother and the baby has a genetic link. Mark Hansen, a senior writer for the journal at the American Bar Association (a professional organization composed of lawyers and law students committed to support the legal profession while improving the administration of justice) adds that many lawyers hesitate when thy have to work with traditional surrogacy and some won’t even consider such an arrangement (Hansen 56). Hansen is simply reiterating the fact that legal problems are more prone to happen with traditional surrogacy due to the biological connection the baby has with the surrogate mother.
Gestational surrogacy (also referred to as commercial surrogacy) is a process in which the intended parents undergo an in-vitro fertilization and an embryo transfer treatment (Ethics Committee of the American Society for Reproductive Medicine 1838). The intended mother is prescribed medication to start development of multiple egg follicles. Once these follicles reach maturity, mature eggs are retrieved from the intended mother’s ovaries procedurally to be later fertilized with the intended father’s sperm. When fertilization in-vitro (in an artificial environment) occurs, the embryo is then transferred to the gestational surrogate’s uterus (Ziskin). The gestational surrogate (also known as gestational carrier) will then carry the couples’ biological child until birth. This is a much more complex and expensive process, but it is mostly preferred by prospective parents due to the lack of genetic bond between baby and surrogate and the increased legal benefits.
Provided this information, substantial issues for and against these surrogacy procedures have arisen. Many religious institutions, feminists, ethicists, and traditionalists oppose surrogacy on moral and ethical grounds. They justify this by stating that surrogacy is just another way to do business and profit off of women and infants becoming commodities to be bought and sold, a way of commercializing humans. But in the article “Consideration of The Gestational Carrier: A Committee Opinion” the ethics committee of the American Society for Reproductive Medicine (ASRM) argues that:
Payment to the gestational carriers should take into account 9 months of possible illness, risks to employment, burden on other family members, and the like, but should not, however, create undue inducement or risks of exploitation or incentivize gestational carriers to lie about their own health conditions or family history. [Therefore] compensation for gestational carriers… is ethical (Ethics Committee of the American Society for Reproductive Medicine 1839).
The ASRM’s ethics committee is emphasizing in their argument that commoditization of humans doesn’t happen as payments made to the gestational carriers are a mere compensation for all the hardship they might encounter during the process.
Beside the opponents’ beliefs, infertile women, infertile couples, and liberalists who represent the majority of advocates for surrogate motherhood assert that surrogacy is a way to help childless couples have their biologically related children even though they would have to pay high costs for this fertility treatment. They feel that the payment required does not relate to the child’s worthiness but relates to the medical expenses incurred, as well as the emotional and physical burdens the surrogate mother experiences throughout the pregnancy.
Moreover, some feminists compare surrogacy with prostitution, alleging that women are selling their bodies and their ability to procreate for money. However, Judith Sperling-Newton, the director of the American Academy of Assisted Reproductive Technology Attorneys argues that “the vast majority of women who choose to serve as surrogates are intelligent, well-educated and financially secure; they are caring individuals who want to help others in a unique and meaningful way” (Sperling-Newton). Respectively, women that agree to carry someone else’s baby are able to give to the childless couple the greatest gift of all, a child.
Furthermore, the committee on ethics at the American College of Obstetricians and Gynecologists emphasize that “in the United States, the freedom to decide whether and when to conceive or bear a child is highly valued and protected” (ACOG Committee on Ethics 466). Therefore, the choice made by the intended parents on how they can have a child should be respected, as wells as the decision of the surrogate mothers to help barren couples.
In addition to the moral and ethical issues there are also some legal issues. Helene S. Shapo, a professor of Law and the director of Legal Writing at the Northwestern University School of Law, writes that the lack of national legislation in the United States to regulate the practice of surrogacy has helped several states recognize surrogacy contracts, although current state legislations nullify them (Shapo 474). These contracts between the surrogate mothers and the intended parents are only for the purpose of establishing parental rights, payment terms, and specific conditions since they still are not enforceable by law.
Rosemarie Tong, a distinguished professor of Health Care Ethics at the University of Carolina as well as a consultant to the National Advisory Board on Ethics and Reproduction, says that the “U.S. public will… press federal and state authorities to pass clear legislation governing surrogacy” (Tong), to make sure the rights of couples, surrogates and the child are not abused or manipulated.
As a matter of fact, advocates to surrogacy and opponents both agree that laws should be created in regards to surrogacy. However, some opponents want legislation to ban the existence of surrogacy altogether. They believe that human commoditization in the U.S. will be drastically reduced if surrogacy is banned (Tong). But Sudesh Kumar, an economist, a regulatory affairs consultant, and the author of “Surrogacy Can Be an Ethical Solution to Infertility”, argues that:
In economics, a commodity is a unit that can substitute for another at all points, so each unit has no special intrinsic value. Thus, one cannot argue that the baby has become a commodity in surrogacy, as the baby is unique (Kumar).
What Sudesh says simply explains that as the baby is the end product of the surrogacy process, that surrogacy should not viewed as human commoditization. Consequently, society should consider Sudesh’s analysis as it would help eliminate criticism against all the parties involved in this process. Not only the adults can suffer psychologically but also the child later in life if they don’t have any social support.
In summary, traditional and gestational surrogacy are assisted reproductive treatments that can help infertile couples achieve their ultimate dream, which is to have children. But along the way, these couples may find themselves in big predicaments due to the complexity of moral, ethical, and legal dilemmas that were raised. These different aspects are now dividing society, however the pros can considerable overcome the cons of surrogacy. Like said by Mark Hansen, the author of “… Baby Makes Litigation”, “Surrogacy… can be a minefield. [But] done carefully and correctly, it is a wonderful thing” (qtd. In Hansen 55). Therefore, surrogacy is a great option to infertility. It helps barren couples experience the joys of parenthood regardless of the surrogacy process chosen. Legislators, advocates and opponents of surrogacy, must work together towards a greater compromise to aid the creation of legislations and thus minimize hardships to all parties involved.
ACOG Committee on Ethics. “Surrogate Motherhood.” ACOG Committe Opinion Number 397 (2008): 465-70. Web. 4 January 2014.
Ethics Committee of the American Society for Reproductive Medicine. “Consideration of the gestational carrier: a committee opinion.” Fertility and Sterility June 2013: 1838-41. Print.
Hansen, Mark. “…and Baby makes Litigation.” ABA Journal (2011): 53-57. Print.
Kumar, Sudesh. “Surrogacy Can Be an Ethical Solution to Infertility.” 13 May 2013. Oposing Viewpoints in Context. Ed. Medical Ethics. Grenhaven Press. Web. 6 January 2014.
Shapo, Helene S. “Assisted Reproduction and the Law: Disharmony on a Divisive Social Issue.” Northwestern University Law Review (2006): 465-79. Print.
Sperling-Newton, Judith. Surrogacy Should Be Regulated, Not Banned. 29 May 2013. Web. 6 January 2014.
“Surrogacy.” Merriam-Webster.com (n.d.). Web. 6 January 2014.
“Surrogate.” Merriam-Webster.com (n.d.). Web. 6 January 2014.
Tong, Rosemarie. Surrogate Parenting. Ed. Internet Encyclopedia of Philosophy. n.d. Web. 6 January 2014.
Ziskin, Dan. Arizona Center For Fertility Studies. n.d. Web. 6 January 2014.
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