“Surrogacy” and Parental Licensing

Christine Overall argues that the failure to protect the interests of children born of “surrogacy” arrangements is a moral error, and that the prospective parents of such children must be screened and licensed.

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“Surrogacy” is not illegal in Canada; paying or offering payment to a “surrogate” mother is. According to Section 6 (1) of the Assisted Human Reproduction Act (AHR Act), “No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.”

This prohibition notwithstanding, the plan is to permit reimbursement for legitimate (receipted) expenses. Section 12 (1) of the AHR Act stipulates, “No person shall, except in accordance with the regulations, … (c) reimburse a surrogate mother for an expenditure incurred by her in relation to her surrogacy.” As the relevant regulations have not been crafted, this exception to the legal prohibition is not yet in force. Meanwhile, there are many media reports of cases of paid and altruistic “surrogacy” in Canada (here).

I use the words “surrogate” and “surrogacy” because they are the familiar terms used in cases where an individual or a couple hires a woman to gestate a child using the man’s (and sometimes the woman’s) gametes. However, I put “surrogate” and “surrogacy” in quotation marks to signal my scepticism about the appropriateness of the terms. A woman who gestates a baby for a commissioning couple or individual is a genuine mother: She is a gestational mother and (where an ovum is not provided to her) also a genetic mother to the infant whom she creates.

pregnant_womanI have long argued that “surrogate” motherhood results in baby-selling (Overall 1993). Money changes hands; a baby is acquired; and above all, no effort is made to evaluate the parenting capacities of the prospective social parent(s), who are simply given the infant. The baby is like a commercial product that is bought and sold, with no attention to its wellbeing. The mere fact that the prospective social father provides the sperm and that (in some cases) the prospective social mother’s ovum may be used to create the infant does not give them an automatic entitlement to the infant; nor does it magically endow them with the ability to be good parents. In these cases a child changes hands, from the woman who gestates it to those who intend to raise it, without any reference to the baby’s own best interests. The exchange is primarily, and often entirely, a commercial transaction.

Now, in cases where the law is strictly followed in Canada, “surrogacy” does not literally involve the selling of a baby, although I would argue that “surrogacy” still results in baby-selling in much of the world. But what all cases of “surrogacy,” both Canadian and international, still have in common is an apparent indifference to the interests of the baby who is created. Unlike prospective adoptive parents, the prospective social parents of a child created through “surrogacy” are not screened. Because the infant is genetically related to one or both of the intended social parents, it is assumed that there is no need to evaluate the prospective social parents. Even in the case of so-called altruistic “surrogacy,” the focus is on what the intended parents want, not on the wellbeing of the baby, and not on their parental skills, experience, and knowledge, if any.

The question, then, is whether there is any way to preserve the practice of “surrogacy” while eliminating the current egregious indifference to the wellbeing of the children created. The answer, I suggest, lies in the compulsory screening and licensing of the prospective parents.

The reasons for parental licensing have been well-identified in the philosophical literature. They include the extreme vulnerability, dependence, and neediness of children; the requirement for competence, good practices, and knowledge on the part of parents; and the potential for great harm when parenting is inadequate. Licensing is routinely required for prospective adoptive parents.

Cases where prospective parents obtain a child by hiring a so-called “surrogate” mother are arguably very similar to cases of adoption. In both adoption and “surrogacy” there is a transfer of responsibility for the child from the genetic mother to the prospective parents; this transfer warrants the screening and licensing of all such prospective parents.

Most prospective parents in “surrogacy” cases might pass, but some might not. Genetic relatedness does not automatically confer parental entitlement or competence; hence, the prospective parents of a child created through “surrogacy” should not be presumed, without evidence, to be good parents. The mere fact of being genetically connected to one’s offspring does not make one automatically entitled to be a social parent and raise the child. Nor does genetic connectedness automatically make one a good parent, or give a person the capacity to provide the care that a child needs. Thus, if screening and licensing were applied in cases of “surrogacy,” then one of the most morally objectionable features of “surrogacy”—its indifference to the interests of the baby—would be obviated. The well-being of the infant should be paramount—just as it is in cases of adoption.

Christine Overall FRSC is a Professor of Philosophy and Queen’s University Research Chair, Queen’s University, Kingston, Canada

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