Commercial surrogate motherhood

Contemporary Review, March, 1998 by Hugh V. McLachlan, J.K. Swales

Among the proposals of the Report of the Committee of Inquiry into Human Fertilisation and Embryology which were put into effect by the relevant legislation in 1990 was that commercial surrogate motherhood agreements and agencies should be illegal. This seems to have been popular legislation. Indeed, when, recently, a surrogate mother, who had been commissioned by a Dutch couple to carry a baby for them and who had received expenses for her services, changed her mind and decided to keep the baby (after lying about having had an abortion), the reaction of the press to this was curious. There was not only the expression of the view that the British legislation heads in the right direction but of the view that perhaps the legislation might be reconsidered in order - how? - to make it even tougher against surrogate motherhood and, in particular, commercial surrogate motherhood.

Perhaps there has been relatively little defence of C.S.M. because the issue is not one that is likely to affect many people directly. Nevertheless, for the people involved, the matter can be of considerable importance, particularly for the prospective parents, at least some of whom, in the absence of C.S.M., will not become parents and for the prospective children of whom, in the absence of C.S.M., most, or even all will not be born.

Some people might wonder why some other people should go to all the bother and expense of procuring a child via surrogate motherhood, especially when there already exist in the world children who are in need of parents. Some people might even consider that the commissioning parents in surrogate motherhood arrangements are being selfish or, at least, self-indulgent.

There are two responses we would make. First of all, if people want to enter into such arrangements, it is their own business: the law has no legitimate interests in the motives of the people involved. Secondly, it is no more selfish to want to become a parent with the aid of a surrogate mother than it is to want to become one in the normal way. If there are objections to introducing more children into an arguably over-populated world, then, again, these would apply generally to the production of children. They would have no particular nor exclusive applicability to the case of children borne by commercial and (non-commercial) surrogate mothers.

It has been argued on two general grounds that C.S.M. should be illegal: because it is immoral and because it can cause problems and complications. Neither sort of argument is convincing.

Whether something is immoral and whether or not it is a good idea to make it illegal are separate questions. For instance, in the past in Scotland, adultery was a criminal offence. Indeed, it was a capital offence. One might well agree that it is a good idea that adultery is no longer a crime without thereby being committed to the view that adultery is never immoral. Prohibition in America was a very very bad idea. It was unwise to make the purchase and consumption of alcohol illegal no matter whether or not all or some of that purchase and consumption was immoral.

In any case, it is very far from clear that C.S.M. is immoral. Why should it be considered immoral? The main problem with the claim that C.S.M. is inherently immoral is that its proponents have not demonstrated that it is necessarily harmful, while it seems clear that all the parties involved, especially the resulting children who would not otherwise be born, could benefit from it.

Lady Warnock, who chaired the Committee of Inquiry into Human Fertilisation and Embryology, says that: 'Even if a calculation of benefits and harms were to show conclusively that the balance was in favour of permitting surrogacy, there would still remain many who would be left with the feeling that it was wrong all the same'. The implication seems to be that Warnock is such a person.

The crux of Warnock's case is that she and, she implies, most other people feel revulsion at the thought of C.S.M. We do not share Warnock's revulsion nor are we convinced that C.S.M. is immoral. Who's views are more representative, Warnock's or ours? We do not know. In any case, mere distaste or revulsion does not seem in itself a good reason for restricting the freedom of action of other people especially where these other people do not share that distaste or revulsion.

An argument sometimes used here is that C.S.M. is morally wrong because it is morally wrong to buy and sell babies since this involves treating human beings as mere commodities, which is wrong. Sometimes too it is suggested that C.S.M. involves treating the carrying mother as a commodity.

These arguments seem to us to be weak ones. It would certainly be wrong to buy and sell babies if the consequence was that bought and sold babies were treated like the inanimate objects which are normally bought and sold. It is wrong to treat people, in all respects, as if they were inanimate objects whether or not they were, as babies, bought and sold.

What does it mean to say that C.S.M. involves buying a baby? If you buy, say, a house or a motor car, then you have legal rights and duties concerning that motor car which others do not have. If you 'buy' a baby, what rights and duties do you have which differ from those which parents have towards their children who were born in the normal way? Children acquired as a result of C.S.M. do not become inanimate objects. C.S.M. is not a form of nor a basis for slavery.