Hostname: page-component-78c5997874-s2hrs Total loading time: 0 Render date: 2024-11-04T18:03:29.614Z Has data issue: false hasContentIssue false
  • English
  • Français

Surrogate Motherhood as Prenatal Adoption

Published online by Cambridge University Press:  28 April 2021

Bonnie Steinbock
Get access Rights & Permissions [Opens in a new window]

Extract

The recent case of Baby M has brought surrogate motherhood to the forefront of American attention. ultimately, whether we permit or prohibit surrogacy depends on what we take to be good reasons for preventing people from acting as they wish. A growing number of people want to be, or hire, surrogates; are there legitimate reasons to prevent them? Apart from its intrinsic interest, the issue of surrogate motherhood provides us with an opportunity to examine different justifications for limiting individual freedom.

In the first section of this article, I examine the Baby M case and the lessons it offers. In the second section, I examine claims that surrogacy is ethically unacceptable because it is exploitive, inconsistent with human dignity, or harmful to the children born of such arrangements. I conclude that these reasons justify restrictions on surrogate contracts, rather than an outright ban.

Type
Ethics
Information
Law, Medicine and Healthcare , Volume 16 , Issue 1-2 , Spring 1988 , pp. 44 - 50
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

See, for example, “Surrogate Motherhood Agreements: Contemporary Legal Aspects of a Biblical Notion,” University of Richmond Law Review, 16 (1982): 470; “Surrogate Mothers: The Legal Issues,” American Journal of Law & Medicine, 7 (1981): 338, and Holder, Angela, Legal Issues in Pediatrics and Adolescent Medicine (New Haven: Yale University Press, 1985), 8: “Where a surrogate mother decides that she does not want to give the baby up for adoption, as has already happened, it is clear that no court will enforce a contract entered into before the child was born in which she agreed to surrender her baby for adoption.” Emphasis added.Google Scholar
Had the Sterns been informed of the psychologist's concerns as to Ms. Whitehead's suitability to be a surrogate, they might have ended the arrangement, costing the Infertility Center its fee. As Chief Justice Wilentz said, “It is apparent that the profit motive got the better of the Infertility Center.” In the matter of Baby M, Supreme Court of New Jersey, A-39, at 45.Google Scholar
“[W]e think it is expecting something well beyond normal human capabilities to suggest that this mother should have parted with her newly born infant without a struggle…. We … cannot conceive of any other case where a perfectly fit mother was expected to surrender her newly born infant, perhaps forever, and was then told she was a bad mother because she did not.” Id.: 79.Google Scholar
“Father Recalls Surrogate Was ‘Perfect,’” New York Times, Jan. 6, 1987, B2.Google Scholar
Id.Google Scholar
In the matter of Baby, M, supra note 2, at 8.Google Scholar
This possibility was suggested to me by Vermazen, Susan.Google Scholar
Annas, George, “Baby M: Babies (and Justice) for Sale,” Hastings Center Report, 17, no. 3 (1987): 15.Google Scholar
In the matter of Baby, M, supra note 2, at 75.Google Scholar
“Anger and Anguish at Baby M Visitation Hearing,” New York Times, March 29, 1988, 17.Google Scholar
New York Times, June 28, 1988, A20.Google Scholar
Dworkin, Gerald, “Paternalism,” in Wasserstrom, R.A., ed., Morality and the Law (Belmont, Cal.: Wadsworth, 1971); reprinted in Feinberg, J. Gross, H., eds., Philosophy of Law, 3d ed. (Belmont, Cal.: Wadsworth, 1986), 265.Google Scholar
Warnock, M. chair, Report of the Committee of Inquiry into Human Fertilisation and Embryology (London: Her Majesty's Stationery Office, 1984).Google Scholar
As summarized in Harris, J., The Value of Life (London: Routledge & Kegan Paul, 1985), 142.Google Scholar
For an argument that kidney-selling need not be coercive, see Brody, B.A. Engelhardt, H.T. Jr., Bioethics: Readings and Cases (Englewood Cliffs, N.J.: Prentice-Hall, 1987), 331.Google Scholar
Robertson, John, “Surrogate Mothers: Not So Novel after All,” Hastings Center Report, 13, no. 5 (1983): 29; citing Parker, P., “Surrogate Mother's Motivations: Initial Findings,” American Journal of Psychiatry, 140 (1983): 1.Google Scholar
Harris, , supra note 14, at 144.Google Scholar
Several authors note that it is both illegal and contrary to public policy to buy or sell children, and therefore contracts that contemplate this are unenforceable. See Cohen, B., “Surrogate Mothers: Whose Baby Is It?,” American Journal of Law & Medicine, 10 (1984): 253; “Surrogate Mother Agreements: Contemporary Legal Aspects of a Biblical Notion,” University of Richmond Law Review, 16 (1982): 469.Google Scholar
Robertson makes a similar point, supra note 16, at 33.Google Scholar
In re Baby “M,” 217 N.J. Super. 372, 525 A.2d 1157 (1987).Google Scholar
Cohen, , supra note 18. See also Holder, Angela, “Surrogate Motherhood: Babies for Fun and Profit,” Law, Medicine & Health Care, 12 (1984): 115.Google Scholar
Annas, , supra note 8, at 14.Google Scholar
See, for example, Robertson, , supra note 16, at 32; and Gersz, S.R., “The Contract in Surrogate Motherhood: A Review of the Issues,” Law, Medicine & Health Care, 12 (1984): 107.Google Scholar
Annas, , supra note 8.Google Scholar
For discussion of these issues, see Parfit, D., “On Doing the Best for Our Children,” in Bayles, M. D., ed., Ethics and Population (Cambridge, Mass.: Schenkman, 1976); Bayles, M.D., “Harm to the Unconceived,” Philosophy & Public Affairs, 5 (1976): 292; Glover, J., Causing Death and Saving Lives (Harmondsworth, Eng.: Penguin, 1977), 67; Robertson, John, “In Vitro Conception and Harm to the Unborn,” Hastings Center Report, 8 (1978): 13; Feinberg, J., Harm to Others(Oxford: Oxford University Press, 1984), 95.Google Scholar
Steinbock, Bonnie, “The Logical Case for ‘Wrongful Life’,” Hastings Center Report, 16, no. 2 (1986): 15.Google Scholar
For the distinction between being harmed and being in a harmful state, see Feinberg, , supra note 25, at 99.Google Scholar
“Baby M Case Stirs Feelings of Surrogate Mothers,” New York Times, March 2, 1987, B1.Google Scholar