Commercial Surrogate Motherhood and the Alleged Commodification of Children: A Defense of Legally Enforceable Contracts

By McLachlan, Hugh V.; Swales, J. Kim | Law and Contemporary Problems, Summer 2009 | Go to article overview

Commercial Surrogate Motherhood and the Alleged Commodification of Children: A Defense of Legally Enforceable Contracts


McLachlan, Hugh V., Swales, J. Kim, Law and Contemporary Problems


I

INTRODUCTION

Commercial surrogate-motherhood contracts should be legally enforceable, despite the vociferous and prevalent opposition to them. We shall, in particular, argue here that they do not involve the commodification of children, nor in other ways are they contrary to the interests of the children concerned. Our case is developed in response to criticisms of arguments we have made before in defense of commercial surrogate motherhood, particularly those criticisms made by Elizabeth Anderson, who is probably the most influential, eloquent, and forceful opponent of commercial surrogate motherhood or, as it is sometimes called, "contract pregnancy." (1)

II

THE NATURE OF SURROGATE MOTHERHOOD

A surrogate-motherhood arrangement is one in which a woman agrees to bear a child for a commissioning couple. (2) She carries the child through pregnancy and subsequently surrenders the child to the commissioning couple. There are two sorts of surrogate motherhood: genetic and gestational. In the former, the male member of the commissioning couple impregnates--usually via artificial insemination--the surrogate mother, who is the genetic mother of the child. In the latter, the male member of the couple fertilises, in vitro, an egg from the female member of the couple. The fertilized egg is placed, for development and delivery, into the womb of the surrogate mother, who is not genetically related to the child she carries, bears and, in an obvious, anatomical sense, of whom she is the biological mother. With genetic surrogate motherhood, the male of the commissioning couple is usually the genetic father. With gestational surrogate motherhood, the commissioning couple are the genetic parents of the child. "Gestational surrogacy creates the new situation in which a child has not one, but two biological mothers--one genetic and the other gestational. (3) In the past, a child might have had multiple social mothers--adoptive, foster, step. (4) What is new is having multiple biological mothers.

So-called "altruistic surrogate motherhood" refers to an agreement in which the surrogate mother receives either no payment at all, or payment to cover only expenses. Altruistic surrogate-motherhood arrangements are generally made between relatives or friends. A commercial surrogate-motherhood arrangement involves payment to the surrogate mother over and above expenses, although which items can be appropriately categorized as expenses is sometimes a contentious issue.

III

GENERAL LEGAL BACKGROUND

In most countries, gestational surrogacy is legally prohibited. (5) Where it is allowed, it exists in the form of altruistic surrogacy, which is itself heavily regulated or restricted; contracts between parents and the surrogate mother are, in most cases, unenforceable. (6) In federations like the United States or the European Union, the unevenness of legal restriction or regulation by individual states or countries compounds the problem. (7)

The United Kingdom sets an example regarding public policy and debate about surrogate motherhood that has been widely copied. In the United Kingdom, although it is not a crime to be a surrogate mother or to be a commissioning parent (whether or not money changes hands in the arrangement), "commercial" surrogate agencies and the "commercial" actions of surrogacy agents are prohibited. (8) No surrogacy arrangement whatsoever is enforceable in law. (9) When a disagreement arises concerning handing over the child, the surrogate mother has the legal right to retain the child whether she is a genetic or gestational surrogate mother. (10) Married couples who have commissioned a surrogate mother to carry a child for them may apply for and be granted a parental order, which will declare them the legal parents of the child, provided that one or both of them supplied the gametes for the embryo. (11) The court also must be satisfied that no money or equivalent benefit, other than "for expenses reasonably incurred," has been given or received by the husband or wife pertaining to the arrangement unless authorized by the court. …

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