I. INTRODUCTION
6.1 Surrogate motherhood raises difficult ethical, philosophical and social issues. There is debate in the community as to the wisdom of surrogacy arrangements. There is scope for disagreement as to the morality of aspects of such reviews the arrangements. This Chapter reviews the arguments for and against surrogacy, including the moral bases for making judgements about surrogacy. In raising these issues the Commission is seeking guidance on community attitudes to assist in formulating principles on can he made.
6.2 The Chapter also addresses the question of whether legal regulation of surrogacy is appropriate. Whatever the moral principles employed, and whatever the conclusion reached on the morality of surrogate motherhood arrangements, the Commission must address the question whether the law should intervene at all when there are clearly differences of opinion in the community on the topic.
II. A PHILOSOPHY FOR REFORM
6.3 The principal function of the Law Reform Commission is to make recommendations for the reform, simplification and modernisation of the law in respect of matters referred to it by the Attorney General. The statute which constitutes the Commission directs it to bring the law into accord with current conditions, and to adopt new or more effective methods for the administration of the law and the dispensation of justice, but it does not impose a corporate philosophy on the Commission.1
6.4 The terms of reference for the Commission’s Inquiry permit (but do not require) the Commission to take into account, to the extent that it decides it is necessary or desirable, a number of factors, including the following:
- relevant social, ethical and legal issues;
- the public interest and the interests children, parents, infertile couples, and other relevant persons; and
- the nature of and issues raised by arrangements and agreements relating to surrogacy, and to any child that may be born as a result.
6.5 One of the Justices of the High Court, the Hon Sir Daryl Dawson, has observed that law reform as such does not provide its own philosophy. He referred to comments made by Professor Gower, who was a member of the English Law Commission. Professor Gower said that present day law reformers simply make value judgments adopting a vague utilitarianism asking themselves (subconsciously rather than consciously) what would conduce to the greatest good for the greatest number. Sir Daryl continued:
... Professor Gower was quick to point out that it is the lack of adequate social, as opposed to legal, research in the business of law reform which tends to be reflected in an inadequate and insufficiently coherent set of principles with which to assess the desirability of much suggested reform ...2
6.6 The New South Wales Law Reform Commission accepts the responsibility of articulating the principles on which decisions relating to surrogate motherhood should be based. The purpose of this Chapter is to seek community response to the principles which should be applied, as well as to the substantive merits of the arguments for and against surrogate motherhood arrangements.
III. SURROGACY: FOR AND AGAINST
A. Review
6.7 Before examining the arguments that are frequently advanced for and against surrogate motherhood arrangements, it is appropriate to recall that the nature of a surrogacy arrangement may vary considerably from case to case. The most commonly reported form of surrogacy arrangement involves the surrogate mother receiving the semen of a married man by artificial insemination, with the intention that the man and his spouse will bring up the child. Surrogate motherhood arrangements might also use natural sexual intercourse or in vitro fertilization and implantation of the embryo in the surrogate mother. If the IVF procedure is used, the semen and ova would most likely be taken from the commissioning couple themselves, although this need not necessarily be the case. There has been only one reported case of a birth involving an IVF surrogacy in Australia.3 The IVF procedure is capable of producing a child who has no genetic relationship to the surrogate mother. Finally, while most of the surrogacy refers to its use to provide a child for a married couple, it should be remembered that surrogacy arrangements might also be sought by unmarried couples, by male or female couples, or by a single person wishing to bring up a child alone. Whoever the parties to the arrangement, there is also the issue of whether payment is involved, and, if so, whether the payment is made on a commercial basis, or a limited to medical and similar out-of-pocket expenses.
B. Ethical Considerations
1. Opposing Views
6.8 It would not he surprising if the ethical values held strongly by one group in the community were not acceptable to other groups. To some, the creation of a family which would otherwise not exist is an appropriate end in itself. Others believe that it is wrong to conceive a child otherwise than through sexual intercourse within lawful marriage. Again, there are those in the community who regard personal autonomy as the governing value and would strongly reject suggestions that a surrogate mother should be prevented from using her body, should she choose to do so, to carry a child for someone else. This view, in turn, challenged by those who regard surrogacy arrangements as degrading to both surrogate mother and child, and leading to the depersonalisation of reproduction. While commenting on the possibility of surrogacy being used for the fertile, a majority of the members of the Warnock Committee declared that surrogacy is “totally ethically unacceptable” for the following reason:
That people should treat others as a means to their own ends, however desirable the consequences, must always be liable to moral objection.4
6.9 Further doubts about the ethical basis of surrogacy arrangements were expressed by the members of the Working Group on in vitro fertilization, genome analysis and gene therapy of the Federal. Republic of Germany. In their report they declared that they had general reservations about surrogacy, saying that a surrogacy arrangement:
... fails to respect the human dignity of the child by ignoring the fact that its development in the uterus is an important part of the development of the child’s personality, and that the biological and psychological bond between the child and the woman carrying it is of special significance for this development. This special kind of relationship, arising out of the natural link between the unborn life and the life of the mother, would be impaired if the pregnancy were entered into as a performance of some kind of service. That close personal relationship between the child and the woman carrying it which is essential to the child’s development, could hardly come about under such circumstances. ... It must be emphasised that these reservations are particularly strong in those cases in which a surrogacy arrangement is made for payment, because here it is especially likely that the carrying mother will form an impersonal relationship with the unborn child.5
6.10 In February 1987, the Vatican issued a statement rejecting surrogate motherhood, finding that it is not morally licit because it is contrary to unity of marriage and the dignity of procreation of the human person. The statement, issued by the Sacred Congregation for the Doctrine of the Faith, and approved by Pope John Paul II, declared that surrogacy offends the dignity and the right of the child to be conceived, carried in the womb, brought into the world and brought up by its own parents. According to this view, surrogate motherhood sets up, to the detriment of families, division between the physical, psychological and moral element which constitute those families.6
6.11 In its earlier Reports on Human Artificial Insemination and IVF, the Commission accepted the principle that the formation of stable families is socially desirable and necessary. In those reports, the Commission referred to the social tradition that the formation of a new family unit, symbolised by the marriage of a man and a woman, normally precedes the birth of children.7 In some respects, that tradition might be changing in Australian society. Is has been given special recognition by the International Covenant on Civil and Political Rights, which describes the family as a natural and fundamental social group.8
2. Law and the Enforcement of Morals
6.12 While inviting discussion on the ethical bases of decisions concerning surrogacy arrangements, the Commission recognises that there is a related question concerning the role of law in such moral issues. The question is whether the law should punish breaches of public morality, however that concept is determined. The view that a society’s accepted morality should be protected and enforced through its law may be traced back to Plato and Aristotle, and found favour with the early common law.
6.13 Since the advent of democratic law-making, views have ranged between two positions. The first, usually described as a Natural Law perspective, states that the law should reflect and enforce established public ethical or religious values to protect society from corruption or harm. The second, normally termed Positivist, denies that there is or should be any necessary connection between law and morality, and defends the freedom of the citizen from interference in private matters.
6.14 In recent times, these conflicting views have become identified with the positions adopted by Lord Devl in (then of the English Court of Appeal) and the philosopher H L A Hart in the debate over the Wolfenden Committee’s report on homosexuality and prostitution.
6.15 Lord Devlin argued that there is no area of activity which should be insulated from the law, since it is not possible to set theoretical limits to the sphere of public morality. He claimed that immorality is a socially subversive activity, just as treason is subversive politically. Deviations from accepted moral behaviour justify the State in protecting itself through the mechanism of law. However, this leads to a conflict between individual and public rights which the judge or legislator must address by reconciling the two. The key principle to be adopted in making such a balance is, he argued, toleration of the maximum individual freedom; this could be overborne only by deeply felt moral disgust on the part of reasonable men.9 Lord Devlin recognised that there is a gap between the “moral law” and “the law of the land” and held that only Parliament can say in what cases the two should overlap.
6.16 Hart’s response to DevIin is a restatement of John Stuart Mill’s principle of liberty.10 He argues individual liberty is an absolute ethical value, so any enterprise which attempts to reduce it must be justified. Hart defends liberty on utilitarian grounds by asserting that individuals can best judge their own welfare or interests. Any proscription of an activity on the grounds that it is harmful to those undertaking it is therefore likely to be mistaken or influenced by self-interest.
6.17 While Hart admits that some shared morality is necessary for the continued existence of any society, he denies that morality must be enforced against private acts which do not harm others in order to preserve social solidarity. Such a view, in his opinion, ignores social change, including changes in socially-accepted morals. Instead of comparing private immorality to treason as a subversive activity, he says we should liken it to a peaceful constitutional change in the form of government, “consistent not only with the preservation of society but with its advance”.11
6.18 It is against this philosophical background that the Commission must consider whether the law should intervene to regulate (or, indeed, to prohibit) surrogate motherhood arrangements.
C. Arguments for Surrogacy
6.19 The clearest argument in favour of permitting surrogacy arrangements is that they allow couples who want a family, but who were prevented from having one by infertility, to have a child. Supporters of surrogacy argue that, if a commissioning couple is prepared to go to such unusual lengths to have a child, the child would be very much wanted and loved. it is said that it would be discriminatory to deny access to surrogacy arrangements to those who are not eligible for, who cannot afford, or who cannot (for medical reasons) participate in an in vitro fertilization program. Proponents believe that many of the women who offer to become surrogate mothers are moved by altruistic concern for other women whose infertility prevents them from having children. Even where the surrogate mother accepts payment for her services, her willingness to enter into such arrangements may still have been motivated by compassion and concern for another.
D. Arguments Against Surrogacy
6. 20 Considerably more arguments have been advanced against the use of surrogacy arrangements. Surrogacy may involve identifiable risks to the child, to the surrogate mother, and to the commissioning parents.
1. Welfare of the Child
6.21 Surrogacy arrangements involve not only the commissioning couple and the surrogate mother, but the resulting child as well. Accordingly, it is argued that the society has a right to prohibit surrogacy in order to prevent children being born in undesirable circumstances.12 It is further argued that such arrangements are in reality contracts for the purchase of a child, which are quite unacceptable.
6.22 Some would argue that there are very specific risks to the child born as a result of a surrogacy arrangement. Unlike the position when a child is adopted, if unregulated surrogacy arrangements are allowed to occur, there would be no objective, impartial assessment of the suitability of a commissioning couple to be parents. The risk would be that the governing selection criterion would simply be the capacity to pay the surrogacy fee. Of its very nature the surrogacy arrangement is likely to lead to more custody disputes than occur when a child is born under more normal circumstances for unlike most other children, the child starts out as the offspring of more than one family group. Such disputes could seriously prejudice the child’s welfare, especially if they are protracted and well-publicised. Equally, surrogacy could lead to the child being regarded as a commodity produced for another and as a result the child might be rejected by both the commissioning couple and the surrogate mother. This is particularly likely to occur when the child is born with a disability.13 The possible lack of bonding between the child and the surrogate mother who intends to surrender it could also lead to emotional and other problems in the child in later years, especially if the commissioning couple decline to accept custody and leave the surrogate mother to care for a child she did not intend to keep.
6.23 As it grows up, the child might experience anxiety about the identity of the surrogate mother. The members of the Chalmers Committee in Tasmania called attention to the risk of serious psycho-social harm to the child who later finds out that he or she was born as a result of a surrogate motherhood arrangement.14 Such experiences are well documented in the literature on adoption.15
2. The Surrogate Mother
6.24 The risks to the surrogate mother could be quite substantial. The woman who agrees to carry a child for others may be quite vulnerable for a number of reasons, and may leave herself open to the possibility of exploitation. If financial pressures have prompted her to contemplate acting as a surrogate mother, she could be at even greater risk if for whatever reason, the commissioning parents do not pay her as agreed. Projecting this into the future, it is possible that more economically disadvantaged women could be used to carry the children of wealthier members of the community. Some would see this as a serious form of exploitation. Even in cases of altruistic surrogacy within families, there is danger that the surrogate mother could have been under significant emotional pressure to demonstrate family loyalty by carrying a child for her sister.
6.25 Clearly, the surrogate mother exposes herself to risks to her health whether arising from complications of pregnancy or otherwise. In any pregnancy there are risks to the woman’s life and health. The development of medical problems such as high blood pressure and diabetes or complications of the pregnancy such as bleeding or premature labour are not uncommon. They may result in the need for medicaltreatments such as drugs or blood transfusion. In addition, problems during the pregnancy or labour may require an operative delivery of the child. All these problems and affect seriously the health and quality of life of the surrogate mother during the pregnancy and may also have effects beyond the pregnancy. The risk of dying during pregnancy or childbirth are not great in Australia today. The most recent statistics for New South Wales indicate that in 1986 only seven of the 19,596 women who died during the year, died as a result complications of pregnancy or in childbirth.16 It is also likely that, during pregnancy, the surrogacy arrangement will impose considerable constraints on her life style, diet, travelling and other activities. She may also find it difficult to comply with the diagnostic and other monitoring procedures required by the commissioning couple during the pregnancy.
6.26 Once the child is born, the surrogate mother would be expected to deliver the child to the parents with whom she made the arrangement. This undertaking raises its own problems. Already, a number of surrogate mothers have refused to hand over children they had agreed to carry for the commissioning parents. In these cases, the surrogate mothers have formed an attachment to the child they were carrying. Some would argue that it would be quite wrong to deny a woman the right to bring up a child she has borne. If the surrogate mother does surrender the child as agreed, there is a real possibility of significant emotional suffering brought about by the loss of the child. The members of the Asche Committee had particular regard to knowledge gained from studies about the effects on mothers of relinquishing a child for adoption. They took the view that this was too high a price to pay for surrogacy arrangements.17
6.27 Consideration must also be given to the effect the surrogacy arrangement might have on the relationship between the surrogate mother and her family. Even if her husband or partner approves of the arrangement, their relationship is likely to come under some stress. This will be exacerbated if the arrangement breaks down for any reason. Any children of the surrogate mother may feel threatened.18
6.28 One of the major objections the Warnock Committee had to surrogacy was that it amounted to “womb-leasing” which was inconsistent with human dignity.19 The Warnock Committee also found it objectionable that people should use others as a means to their own ends, even if the consequences are desirable.20 It is becoming accepted knowledge that the bond established between mother and child before birth is important to the future development of the child. If the bonding possible between a surrogate mother and her child is different from that between a mother giving birth to her natural child, this could be shown to have an adverse effect on the child’s health and future wellbeing. There is also evidence that anxiety, emotional instability and negative attitude during pregnancy can result in a higher incidence of perinatal deaths and congenital abnormalities. It may be that the circumstances of a surrogate mother could make her more prone to these conditions.21
The Commissioning Parents
6.29 The parents who commission a child through a surrogate mother could well be placed at a considerable disadvantage themselves. Their dependence on the surrogate mother could leave them open to the risk of emotional or financial pressures if she refuses to hand over the child, or if she threatens to delay doing so. They face the possibility of severe distress if the arrangement is not carried out, and they do not receive the child for whom they have prepared.
6.30 Even when the surrogacy arrangement is carried through, there is the risk that, if the child is not genetically the child of the commissioning couple, further pressure could be put on their relationship as they bring up “someone else’s child”.
6.31 There is also growing evidence that the married woman who is infertile experiences a great deal of pressure to agree to her husband’s producing a child with a surrogate. First,
there is her need to have a child, which may be a product of social conditioning.22 Next there is the pressure placed on her by her husband’s need to be the biological father of the child. In combination these pressures may lead to an acceptance of surrogacy rather than the pursuit of adoption or fostering as alternatives.23
FOOTNOTES
1. Law Reform Commission Act 1967 s10(1)(a).
2. The Hon Mr Justice Dawson, Address to Sydney University Law Graduates Association, Sydney, 28 April 1983, 7.
3. Chapter 1, note
4. Warnock Report at para 8.17. In an article critical of the Warnock Report, Professor Freeman has pointed out that this reasoning would also lead to the rejection of blood transfusions. M D A Freeman “After Warnock - Whither the Law?” (1986) 49 Current Legal Problems 33 at 36.
5. West German Report at 48.
6. Sacred Congregation for the Doctrine of the Faith Instruction on Respect of Human Life in its Origin and on the Dignity of Procreation (1987) at 39.
7. NSW Law Reform Commission Human Artificial Insemination (LRC 49 NSW Govt Printer, 1986) at paras 3.4, 3.12.
8. International Covenant on Civil and Political Rights 1966, Article 23.
9. Patrick Devlin The Enforcement of Morals (1965) at 16 see also A R Blackshield “The Hart-Devlin Controversy 1965” (1967) 5 Sydney Law Review 441.
10. John Stuart Mill On Liberty (1859) ch 1.
11. H L A Hart Law, Liberty and Morality (1963) at 52.
12. P Singer and D Wells The Re Production Revolution: New Ways of Making Babies (1984) at 119.
13. Such a case has occurred in the United States. “Spurned baby sparks action on surrogate births” The Australian 27 January 1983; P Singer and D Wells, note 12 at 118-119.
14. Chalmers Report at para 5.2.10.
15. Robin Winkler and Margaret van Keppel Relinquishing Mothers in Adoption (1984).
16. Australian Bureau of Statistics Causes of Death, New South Wales 1986 at 10 and 13.
17. Family Law Council Creating Children: A Uniform Approach to the Law and Practice of Reproductive Technology in Australia (1985) at para 6.6.17.
18. Shari O’Brien “Commercial Conceptions: A Breeding Ground for Surrogacy” (1986) 65 North Carolina Law Review 127 at 144.
19. Warnock Report at para 8.10.
20. For further discussion see Karen T Condie “Surrogacy as Treatment for Infertility” (1986) 31 Journal of Law Society of Scotland 469 at 470-472.
21. Carolyn Sappideen “The Surrogate Mother - A Growing Problem” (1983) 6 University of New South Wales Law Journal 79 at 94.
22. Gena Corea The Mother Machine (1985) chs 9 and 10, especially at 220.
23. Carolyn Sappideen, note 21 at 100.
