Adaobi is a 19 year old girl in suburban Lagos in Nigeria. Sitting in the recovery room of the maternity ward, she stares into space, eyes filled with tears of regret. She has many things on her mind, topmost of all the child she just gave away. She lacks the means to care for her sufficiently and had entered a contract she was told. The couple she gave her child to is a nice, happy, urbane couple who have been unable to conceive for seven years.
“I have no choice” she says. You see, Adaobi is poor and leaves with her uncle who abuses her regularly. She has lived with him since both her parents died in a car accident ten years ago. She was in her last year of secondary school when her uncle informs her that he would not be paying her university fees, and she desperately wants to go to university. She is desperate. Subsequently she learns through a friend, of young, rich couples who have been unable to conceive for several years are looking for girls to act as surrogate mothers. She discovers one such couple and subsequently enters into an agreement. Ada subsequently becomes pregnant by artificial insemination and is registered for antenatal at a specialized clinic. All her needs are taken care of for the period she is pregnant. As the delivery date approaches, she becomes sadder and sadder because she has developed a strong bond with “Charles” (she’s named the baby Charles in her head). When she goes into labour, she checks into the clinic, where she gives birth to a baby boy and immediately the child is taken to the young, couple waiting outside.
She has given away her child and now she is free to go to university because she can now afford it. Moreover she couldn’t possibly keep the child, because she can barely take care of herself, not to talk of another human being. “It’s for the best she says”, or is it?
This is the picture increasingly seen in many African countries. Young girls are acting as surrogate mothers and giving up their newborns to young, rich couples, when they previously simply wanted to abort their pregnancies.
Undoubtedly, surrogate motherhood is a very controversial issue. In many cases, the surrogate bears the child for the contracting couple, willingly gives up to them the child she has borne, and accepts her role with no difficulty. In those cases, the contracting couple views the surrogate with extreme gratitude for helping their dream of having a child come true. The surrogate also feels a great deal of satisfaction, since she has in effect given a “gift of life” to a previously infertile couple. But in some cases that have been well publicized in the media, the surrogate wants to keep the child she has borne and fights the contracting couple for custody. What began as a harmonious relationship between the couple and the surrogate ends with regrets about using this type of reproductive arrangement.
Surrogacy itself is not new. The Old Testament records two incidents of surrogacy (Gen. 16:1-6; 30:1-13), and it appears that use of a surrogate to circumvent female infertility was an accepted practice in the Ancient Near East. What makes today’s surrogacy new is the presence of lawyers and detailed contracts in the previously very private area of procreation. Today, surrogacy does not normally involve any sophisticated medical technology. Normally conception is accomplished by artificial insemination, though in some cases in vitro fertilization is used to impregnate the surrogate. In the latter cases the contracting couple normally provide both sperm and eggs, so that the surrogate mother is not the genetic mother.
Problems with Surrogate Motherhood
Surrogacy Involves the Sale of Children. Certainly the most serious objection to commercial surrogacy is that it reduces children to objects of barter by putting a price on them. Most of the arguments in favour of surrogacy are attempts to avoid this problem. Opponents of surrogacy insist that any attempt to deny or minimize the charge of baby-selling fails, and thus surrogacy involves the sale of children. This violates the Thirteenth Amendment that outlawed slavery because it constituted the sale of human beings. It also violates commonly and widely held moral principles that safeguard human rights and the dignity of human persons, namely that human beings are made in God’s image and are His unique creations. Persons are not fundamentally things that can be purchased and sold for a price. The fact that proponents of surrogacy try so hard to get around the charge of baby-selling indicates their acceptance of these moral principles as well. Rather than the debate being over whether human beings should be bought and sold, it is over whether commercial surrogacy constitutes such a sale of children. If it does, most people would agree that the case against surrogacy is quite strong. As the New Jersey Supreme Court put it in the Baby M case, “There are, in a civilized society, some things that money cannot buy….There are values…that society deems more important than granting to wealth whatever it can buy, be it labor, love or life.”5 The sale of children, which normally results from a surrogacy transaction (the only exception being cases of altruistic surrogacy), is inherently problematic. This is so irrespective of the other good consequences the arrangement produces, in the same way that slavery is inherently troubling, because human beings are not objects for sale. Surrogacy Involves Potential for Exploitation of the Surrogate. Most agree that commercial surrogacy has the potential to be exploitative. The combination of desperate infertile couples, low income surrogates, and surrogacy brokers with varying degrees of moral scruples raises the prospect that the entire commercial enterprise can be exploitative.
Surrogacy Involves Detachment from the Child in Utero. One of the most serious objections to surrogacy applies to both commercial and altruistic surrogacy. In screening women to select the most ideal surrogates, one looks for the woman’s ability to give up easily the child she is carrying. Normally the less attached the woman is to the child the easier it is to complete the arrangement. But this is hardly an ideal setting for a pregnancy. Surrogacy sanctions female detachment from the child in the womb, a situation that one would never want in any other pregnancy. This detachment is something that would be strongly discouraged in a normal pregnancy, but is strongly encouraged in surrogacy. Thus surrogacy actually turns a vice — the ability to detach from the child in utero — into a virtue. Should surrogacy be widely practiced, bioethicist Daniel Callahan of the Hastings Center describes what one of the results would be: “We will be forced to cultivate the services of women with the hardly desirable trait of being willing to gestate and then give up their own children, especially if paid enough to do so…. There would still be the need to find women with the capacity to dissociate and distance themselves from their own child. This is not a psychological trait we should want to foster, even in the name of altruism.” Surrogacy Violates the Right of Mothers to Associate with Their Children. Another serious problem with commercial surrogacy might also apply to altruistic surrogacy. In most surrogacy contracts, whether for a fee or not, the surrogate agrees to relinquish any parental rights to the child she is carrying to the couple who contracted her services. In the Baby M case, the police actually had to break into a home to return Baby M to the contracting couple. A surrogacy contract forces a woman to give up the child she has borne to the couple who has paid her to do so. Should she have second thoughts and desire to keep the baby, under the contract she would nevertheless be forced to give up her child. Of course, this assumes the traditional definition of a mother. A mother is defined as the woman who gives birth to the child. Society never before needed to carefully define motherhood because medicine had previously not been able to separate the genetic and gestational aspects of motherhood. It is a new phenomenon to have one woman be the genetic contributor and a different woman be the one who carries the child. There is debate over whether genetics or gestation should determine motherhood. But in the great majority of surrogacy cases, the surrogate provides both the genetic material and the womb. Thus, by any definition, she is the mother of the child. To force her to give up her child under the terms of a surrogacy contract violates her fundamental right to associate with and raise her child.11 This does not mean that she has exclusive right to the child. That must be shared with the natural father, similar to a custody arrangement in a divorce proceeding. But the right of one parent (the natural father) to associate with his child cannot be enforced at the expense of the right of the other (the surrogate). As a result of this fundamental right, some states that allow a fee to be paid to the surrogate do not allow the contract to be enforced if the surrogate wants to keep the child. In these states, any contract that requires a woman to agree to give up the child she bears prior to birth is not considered a valid contract. This is similar to the way most states deal with adoptions. Any agreement prior to birth to give up one’s child is not binding and can be revoked if the birth mother changes her mind and wants to keep the child. Many states that have passed laws on surrogacy have chosen to use the model of adoption law rather than contract law that essentially says “a deal’s a deal.” The problem with allowing the surrogate to keep the child is that it substantially increases the element of risk for the contracting couple. They might go through the entire process and end up with shared custody of a child that they initially thought was to be all theirs. To many people, that doesn’t seem fair. But to others is it just as unfair to take a child away from his or her mother simply because a contract states that she must.
Surrogate motherhood can be viewed as a classic social problem, which this century must come to terms with. But till then, we will continue to see many more cases of adaobi and Baby Charles.