Commercial surrogate motherhood

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

There are potential legal complications concerning the parentage of the children involved. Suppose, say, that the commissioning parents are also the genetic parents of a child who is carried by another woman. This might happen in a situation where a woman is not infertile but is prevented from carrying a child by, for instance, a deformity of the womb. Who is or should be the legal mother of the child? What if the carrying mother changes her mind and does not want to part with the child, does not want to give the child to the commissioning couple of whom at least one might be the genetic parent of the child? What should happen? We do not know how these questions should be answered. Nonetheless, we imagine that the law could evolve, as it has done in the past, to deal reasonably with novel situations and issues.

Some people express the fear that, sometimes, none of the parties involved might want to accept a child born of a surrogate mother. In particular, they ask: 'What if such a child is born handicapped or deformed?' Well, what do most parents do if, in the normal way, they produce a handicapped or deformed child? Do they not love and care for it? Why should commissioning parents be expected to behave differently? Furthermore, if through death or whatever, the children involved are not cared for by the commissioning parents or the carrying mothers, there are social services and potential foster and adoptive parents to look after them and the number of such children is likely to be small. Perhaps, too, it might be possible to plan for the special needs of such disabled children even more readily than for those of disabled children born in the normal way through, say, putting a levy on the fees for all C.S.M. and placing the money thereby raised into a special insurance fund. Legalisation might allow for the possibility of regulation and control of C.S.M. and of the problems it can produce.

With surrogate motherhood and perhaps particularly with commercial surrogate motherhood, there is the danger that one or other of the parties involved will be exploited. There is the danger, for instance, that commissioning parents will pay money for the services of a surrogate mother and not receive the services they have paid for. The carrying mother might keep or abort the baby. Similarly, the surrogate mother might deliver the baby, in more senses than one, and fail to receive sufficient money or, possibly, any money at all for her services. There are potential problems with all commercial contracts. Obviously, to make all commercial contracts illegal would not be a satisfactory solution to that general problem.

There are too, perhaps, various other potential problems with commercial surrogate motherhood and surrogate motherhood as such of which we are unaware (just as there might well be various other benefits of which we and the opponents of surrogate motherhood fail to allow for). However, we do not think that these problems are insurmountable nor that they are best dealt with by making and keeping commercial surrogate motherhood arrangements and agencies illegal. Indeed, the illegality of surrogate motherhood makes some of these problems more severe. The parties directly affected are more likely to be exploited when commercial surrogate motherhood is illegal than they would be were it to be legalised. The commissioning parents in particular are likely to be exploited when C.S.M. is illegal. The illegalisation is almost bound to increase the cost of C.S.M. They run the risk of paying for the services of carrying mothers yet failing to be provided with the anticipated babies. Where C.S.M. arrangements are illegal, commissioning parents cannot be legally compensated for such breaches of contract. Furthermore, it is undesirable that children are born under a cloud of illegality as some will be with the illegalisation of C.S.M.