Surrogacy in the USA - Annotated Bibliography Example

 Introduction There is one issue today that has escaped most of media's attention but a topic that is equally important to some people. This issue is surrogacy, or to be more precise, the surrogate motherhood controversy. The surrogate motherhood debate has moralists and ethicists arguing over many unanswered questions regarding this practice which has grown more widespread as medical science opened new possibilities for becoming a parent. Previously, infertile couples who want to raise a family can choose adoption as their only recourse but new reproductive technologies (NRTs) or what is called “assisted reproduction” has potential parents all agog with excitement about bringing a new baby to their homes. Traditionalists from religious and legal circles view surrogacy as immoral and illegal while couples view it as their chance to realize their dreams of having a legitimate family. The issue has led to some ticklish questions that defied clear-cut answers as it re-defined meanings of parenthood and motherhood. Advocates prefer surrogacy to adoption due to some reasons of their own, such as being able to maintain genetic links to the baby (traditional surrogacy) or that adoption is expensive and time-consuming (because of extensive legal paperwork) and is likely to raise other complications as the child grows up. But the biggest allure of surrogacy is the genetic link that it provides potential or intended parents. What gets people worried is that surrogacy has a lot of potential for abuses. Infertility is a problem that concerns the whole society and not just the couple or individuals involved. It has also brought into focus peripheral issues such as same-sex couples who want to raise kids, commercialization of surrogacy, baby-selling, prostitution and exploitation of some women. Discussion In the United States, new technologies had spawned new procedures such that the law has often been left behind and surrogacy is a clear example of this phenomenon. The courts are often ill-equipped to deal with the complex issues surrounding surrogacy such as rights of the surrogate mother and the baby borne by her. In most instances, surrogacy arrangements were decided based on contract laws and adoption laws which are not suited for this situation. Besides the legal, sociological and political implications, there are three main issues hounding the debates on surrogate motherhood and these are: the rights of the woman (as argued by the feminists), the rights of the child and in general, an individual's procreative rights (Rae, 10). There are two kinds of surrogacy and these are the traditional and the gestational types of arrangements. The first involves surrogate mothers being the genetic as well as gestational mothers of the babies while the latter arrangement entails both the intended father and mother having genetic links to the baby. In the former case, it is only the father that has genetic links while the latter involves both heterosexual partners. A variant is when a surrogate mother is implanted with an embryo the couple had adopted with a result where both the mother and an intended couple have no genetic connections whatsoever (Frey & Wellman, 369). What complicates further an already convoluted situation is that some states allow the altruistic form of surrogacy while disallowing commercial surrogacy arrangements. The first is a situation where no payment is involved except perhaps the accompanying medical and other related expenses connected with the pregnancy and childbirth. Commercial surrogacies are what worries people the most as this is the type where potential abuses exist. It is the form of commercial surrogacy where charges of women coercion, violation of procreative liberty, baby-selling, prostitution and the rise of baby farms are directed against. In all instances, this involves the mother giving up the baby after birth and she severs all parental rights to it. Opponents of surrogacy contend that gestation constitutes a mother-child relationship so basic that it cannot be limited or obstructed by any type of contract, commercial or not. It also brings up the legal aspects of the divisibility of maternity (genetic vs. gestational), unlike that of paternity which is not biologically divisible. Another issue brought against it is implied coercion, such as in altruistic (gift) surrogacies where a woman is considered the only viable option among close relatives or friends. She may be pressured into entering a gift surrogacy arrangement for a couple anxious to have a child and her freedom of choice largely curtailed, disappointing the mother that she is not treated as a friend after the birth (Dolgin, 75). In most instances, surrogates view themselves as helping a couple achieve their dreams of a family but surprised to learn institutionalized surrogacies even exist. Intended couples merely view these contracts as a means to an end and nothing much more. Proponents contend it is a neat kind of arrangement where everyone comes out happy. A more serious concern are the rights of the child, like what happens when a surrogate changes her mind or the intended parent refuses to accept a child born with some defects? The question now is who will have parental and custodial rights of an innocent baby caught up in conflicting claims. In surrogate contracts gone awfully awry, the State has usually no choice but to step in as the ultimate custodian of vulnerable citizens. Can the mother be lawfully sued for damages under tort law if she had not taken proper care of herself and the fetus while she was still pregnant (such as taking illegal drugs, smoking or alcohol intake)? Surrogacy does not concern a few individuals only who are involved in the assisted reproduction controversy. On a more basic level, it pits the individual against society because it involves fundamental rights like the legal tradition of procreative liberty. Anybody who is capable of reproduction should be allowed this right without any constraints as long as there is no potential harm to anybody but this principle is in conflict when a baby is in danger. State law is sometimes confusing with regards to surrogacy disputes, with more than half of the US having no laws at all in this regard. In the case of Ohio, a litmus test was in the Belsito vs. Clark case. It ultimately determined parental rights on the basis of the “intent test” as the best method for resolving the case. Earlier, the hospital had listed the baby under the birth mother's name as being the legal mother in the baby's birth certificate while the court had overturned it and used the genetic linkages to legitimize the baby (Fergus 1994, p. 1). Evaluation of Progress Before this research, I had only vague ideas concerning the complexities of surrogacy and viewed it simply as something that can fulfill the wishes of an infertile couple, who found themselves unlucky through no fault of their own. It has also widened my knowledge about all the new stakeholders that came up regarding the use of enhanced reproductive techniques such as same-sex couples (married or not), career women who opt for surrogacies so as not to interrupt their professional careers (actresses or business executives, for example) and fertile heterosexual couples who do not want to undergo the usual hassles of a normal pregnancy. In the case of gay and lesbian couples, surrogacy is an attractive alternative as they face usual discrimination in adoption agencies, contending, quite unsuccessfully, that good parenting has nothing to do with sexual orientations. In conclusion, it is also necessary to re-examine the basic constitutional right or liberty to human reproductive privacy (Eggen 1991, p.1). Other than individual rights that feminists have brought to the fore, surrogacy is always a gender-sensitive issue because only maternal rights are put into question when there are disputes. As mentioned earlier, what worries most opponents are the potential for abuse with regards to the use of the technology and its effects on women, such as women from some villages in India who lined up to become surrogates in exchange for substantial sums they cannot possibly earn elsewhere (Watson 1997, p. 1). Annotated Works Cited Dolgin, Janet L. Defining the Family: Law, Technology and Reproduction in an Uneasy Age. New York, NY: New York University Press, 1999. Print. New technologies often have unintended impacts and this is the case with the new reproductive technologies as it redefined the meaning of a family and what constitutes motherhood. Professor Dolgin has examined in detail the various legal implications brought about by surrogacy arrangements where the family as basic unit of society is no longer what it was even just a few generations ago. This is a good book for anyone interested in surrogacy contracts such as deciding what is in the best interest of the child born from surrogacy arrangements. The family is now a different unit that is more or less characterized by individuality and choice. Eggen, Jean Macchiaroli. The "Orwellian Nightmare" Reconsidered: A Proposed Framework for the Advanced Reproductive Technologies. 25 Ga. L.Rev.625 Spring 1991. Print. Surrogacy has gained more widespread acceptance among couples today because of changed attitudes and lifestyles. There are more infertile couples today due to stress at work, pollution, contaminants in the diet and a host of causative factors. Adoption had been the preferred route for most infertile couples before but due to the costs involved, surrogacy is now seen in a better light. Adoption also fails to provide the genetic linkages that potential parents want to see in the children they will raise. Surrogacy had been practiced in ancient societies as a way to prevent a woman from being divorced (if she happened to be the one who is sterile). The Bible even mentions this practice in the Book of Genesis where Sarah allowed her handmaid named Hagar to bear the child of Abraham for her. The wonder of medical science can be taken to extremes though, as in the case of poor women of India who willingly surrogate themselves in a perverse and extreme example of the outsourcing phenomenon. It is what critics called as the ultimate Orwellian nightmare of “baby factories” or “baby farms” where babies are produced similar to an assembly line concept. The Indian women, however, are screened prior to being accepted as surrogates and given psychological counseling but this does not detract the argument of the critics of this practice that compare this to babyselling and even prostitution, citing the “womb-for-hire” concept of surrogacies. Fergus, Victoria L. An Interpretation of Ohio Law on Maternal Status in Gestational Surrogacy Disputes: Belsito v. Clark, 644 N.E. 2d 760 (Ohio C.P. Summit County 1994). Print. The Ohio Parentage Act, like most laws of the other states, is viewed as totally inadequate to fully address issues surrounding surrogate motherhood contracts. In the instant case, what was applied was common law and not statutory law as the jurisprudence in surrogacy cases is not clear. The Ohio State Legislature needs to address these issues squarely as more cases will continue to crop up in the future. Frey, Raymond Gillespie & Wellman, Christopher Heath. “Surrogate Motherhood.” A Companion to Applied Ethics. Rosemarie Tong. Indianapolis, IN: Wiley-Blackwell, 2003. 369-381. Print. An excellent book that deals with the moral and ethical issues surrounding the surrogate motherhood controversy. This practical book deals not only with the complexities of surrogacy but also other sensitive topics in an applied ethics way such as pornography, sexism, racism, capital punishment, citizenship and even affirmative action and censorship. This book is an excellent guide to many issues as it is actually an anthology written by professionally-recognized authors. Rae, Scott B. The Ethics of Commercial Surrogate Motherhood: Brave New Families? Book review. J. L. Miller. Marriage and Family Review. 27 (3), pp. 287-90. Kentucky, USA: The Haworth Press, 1998. Print. Prof. Rae is against all types of surrogacy arrangements as he views them to be against all moral and ethical laws based on religion. He wants a total ban on all forms of surrogacy and failing in that, to regulate altruistic surrogacies instead. Watson, Traci. "Sister, Can you Spare an Egg?" U.S. News & World Report, June 23, 1997. Print. Part of the anxiety of surrogate mothers is not knowing what happens to a baby after it has been delivered to the intended parents. Delivery, in this case, fulfills the requirements of the contract but it does not usually end there. Part of mental torture is not being not around when the baby grows up. This issue also brings with it the collateral question of post-menopausal women who, in their younger years, failed to have a baby for one reason or another and now want desperately to become mothers at a late stage in life. The concern of ethicists is not only the aging parent who may not be able to keep up with a teenage child's demands but also on the often unspoken worry of these children who see a parent as already quite old and could die anytime soon. Who will care for the child if the parent dies unexpectedly? At what should age should old women be banned altogether? Read More