Commercial Surrogate Motherhood
McLachlan, Hugh V., Swales, J. K., Contemporary Review
Surrogate motherhood and, in particular, commercial surrogate motherhood (C.S.M.) has received much criticism and little support. This seems to us to be unfortunate. The case against surrogate motherhood, including commercial surrogate motherhood, is weaker than is commonly supposed.
Among the proposals of the Report of the Committee of Inquiry into Human Fertilisation and Embryology which were put into effect by the relevant legislation in 1990 was that commercial surrogate motherhood agreements and agencies should be illegal. This seems to have been popular legislation. Indeed, when, recently, a surrogate mother, who had been commissioned by a Dutch couple to carry a baby for them and who had received expenses for her services, changed her mind and decided to keep the baby (after lying about having had an abortion), the reaction of the press to this was curious. There was not only the expression of the view that the British legislation heads in the right direction but of the view that perhaps the legislation might be reconsidered in order - how? - to make it even tougher against surrogate motherhood and, in particular, commercial surrogate motherhood.
Perhaps there has been relatively little defence of C.S.M. because the issue is not one that is likely to affect many people directly. Nevertheless, for the people involved, the matter can be of considerable importance, particularly for the prospective parents, at least some of whom, in the absence of C.S.M., will not become parents and for the prospective children of whom, in the absence of C.S.M., most, or even all will not be born.
Some people might wonder why some other people should go to all the bother and expense of procuring a child via surrogate motherhood, especially when there already exist in the world children who are in need of parents. Some people might even consider that the commissioning parents in surrogate motherhood arrangements are being selfish or, at least, self-indulgent.
There are two responses we would make. First of all, if people want to enter into such arrangements, it is their own business: the law has no legitimate interests in the motives of the people involved. Secondly, it is no more selfish to want to become a parent with the aid of a surrogate mother than it is to want to become one in the normal way. If there are objections to introducing more children into an arguably over-populated world, then, again, these would apply generally to the production of children. They would have no particular nor exclusive applicability to the case of children borne by commercial and (non-commercial) surrogate mothers.
It has been argued on two general grounds that C.S.M. should be illegal: because it is immoral and because it can cause problems and complications. Neither sort of argument is convincing.
Whether something is immoral and whether or not it is a good idea to make it illegal are separate questions. For instance, in the past in Scotland, adultery was a criminal offence. Indeed, it was a capital offence. One might well agree that it is a good idea that adultery is no longer a crime without thereby being committed to the view that adultery is never immoral. Prohibition in America was a very very bad idea. It was unwise to make the purchase and consumption of alcohol illegal no matter whether or not all or some of that purchase and consumption was immoral.
In any case, it is very far from clear that C.S.M. is immoral. Why should it be considered immoral? The main problem with the claim that C.S.M. is inherently immoral is that its proponents have not demonstrated that it is necessarily harmful, while it seems clear that all the parties involved, especially the resulting children who would not otherwise be born, could benefit from it.
Lady Warnock, who chaired the Committee of Inquiry into Human Fertilisation and Embryology, says that: 'Even if a calculation of benefits and harms were to show conclusively that the balance was in favour of permitting surrogacy, there would still remain many who would be left with the feeling that it was wrong all the same'. …