Skip to 0 minutes and 0 seconds The issue of surrogacy, which actually means a woman who is not the genetic mother, but will be the gestational carrier, that is will carry the foetus, although in the past there have been surrogates who were both the genetic mother and the gestational mother because that gives rise too so many ethical controversies and there were cases in which women have refused to give up the baby to whom they were genetically related. Today, surrogacy is almost always a gestational surrogate. That is a woman who carries the baby. Some people are critical of this for a variety of reasons. They refer to it as wombs for rent. The biggest objection is usually the objection that this commodifies the woman’s body.
Skip to 0 minutes and 55 seconds Some people also argue that it commodifies the foetus, that is the baby that will be born, because surrogates are paid money. So, we have to ask what are the ethical issues? Is a woman harmed if she agrees to be a surrogate? Well, pregnancy carries some risks. So it is clear that there is a potential for harm. But most surrogates or most programs or activities that involve surrogacy require that the woman have already have had a child. And therefore she presumably knows what she is getting in to. Well, she knows what she is getting in for as far as becoming pregnant. She does not know what she is getting in for to have to give up the child.
Skip to 1 minute and 38 seconds So that is a second ethical controversy. Is it wrong to have a contract that requires a woman to essentially give up a child that she has gestated for a nine-month period and that she has bonded with? Most recently the controversies have surrounded what is called ‘cross-border surrogacy.’ Some people have called this ‘medical tourism’ or a type of ‘reproductive tourism’ but the people who are involved in this don’t like that term because they say it is not really touring; it is a form of cross-border arrangement. The countries that have probably been the most involved are India, Thailand and Eastern Europe, that is where the surrogates come from. And of course the couples, the commissioning couples, come from all over the world.
Skip to 2 minutes and 26 seconds Most recently, an industry that has been a thriving business, most recently in both India and Thailand there have been changes in the practice. An Indian judge in one case made a ruling, essentially saying, “no more foreign couples.” And the reason was an Australian couple came to pick up their baby turned out to be twins, they left one twin there and took one twin back. And the question then becomes what happens to that child? To that baby because the surrogate certainly did not want or plan to keep that baby. In India they are awaiting a parliamentary ruling on that.
Skip to 3 minutes and 6 seconds In Thailand also an Australian couple, a different couple, came to pick up their child and the baby had Down’s Syndrome, they didn’t want the child. It has a birth defect. They didn’t want the child and they left without the child. So these are unsettled questions, issues without, at this time, any ruling, any law, but presumably the laws will come about. And we always have to ask who is harmed and is anybody wronged? That is to say deceived or treated like an instrument for the use of somebody else’s pleasure. In most cases the contracts that are drawn up favour the commissioning couple, that is the people who are paying for the surrogate.
Skip to 3 minutes and 54 seconds The rights of the commissioning couple involve not only the right to take the baby but possibly in some cases even the right not to take the baby home if there are problems, birth defects. The surrogate on the other hand may have certain medical needs after. Suppose there are difficulties that arise in the birth. Suppose there are longer term harms that the surrogate suffers. The contracts typically don’t say anything about payment, either by the couple, or making any other arrangement. So, if the surrogate is not granted equal or equivalent rights to the commissioning couple one could argue that the surrogate is being wronged in this arrangement.
Skip to 4 minutes and 44 seconds She may actually not be harmed but she may be wronged simply by not having equal rights in a contract that grants equivalent rights to both couples. So there are two ethical concepts here. One is harm and the other is wrong. And some people who object to surrogacy and particularly cross-border surrogacy argue that the wrongs are more paramount than any of the harms since if this is medically safe and done in a safe environment there are not likely to be great harms to the surrogate. The two philosophical concepts, wrongs and harms, come from somewhat different traditions in the history of philosophy. Harms are usually thought of as the consequences, good consequences or bad consequences of actions.
Skip to 5 minutes and 34 seconds So surely when we think of surrogacy there can be harms to the surrogate for example if there are medical harms or there are risks that come about, even if they weren’t predicted. So people can be harmed and there should be remedies available for harms. Perhaps people don’t think as much about how individuals can be wronged. One way they can be wronged is by not being provided with equal rights.
Skip to 6 minutes and 6 seconds So if the surrogate for example is not granted rights equivalent to that of the commissioning couple, for example the commissioning couple has the right to take or refuse the child, the surrogate does not have the right in contracts that are used in these circumstances, the surrogate is not granted the right to keep the baby if in fact she bonds with that child or that baby while in utero. Also the surrogate may not be given sufficient information. So in the process of informed consent for becoming a gestational surrogate all of the information, full disclosure must be available and must be given to the surrogate.
Skip to 6 minutes and 50 seconds If only partial information is being given, once again, she is being wronged because information is being withheld from her that should be granted in order for her to be making a fully knowledgeable voluntary decision.
Underlying ethical concepts
International surrogacy poses a challenge for us, because there are so many variables involved. What are the conditions in which the surrogate finds themselves? What are their rights? What are their alternatives?
Macklin makes reference to two international surrogacy cases. The first case involved a couple who had procured the services of an Indian surrogate. The surrogate carried twins but when the commissioning couple arrived after the birth, they only wanted one of the children.
The second case is that of Baby Gammy, who was born in 2011 with her twin sister. Baby Gammy was found to have Down Syndrome, and although there are conflicting accounts of what happened, the fact was that Australian commission couple left Thailand with only the twin who did not have Down Syndrome.
In this interview, Professor Macklin discusses international surrogacy in the context of the initial distinction we made at the outset of the course.
On Macklin’s view, rights and harms overlap in important ways. For example, failure to uphold a woman’s right to safe methods of family planning can oftentimes result in harm, as we know from countries were pregnancy termination is illegal.
Together, these two aspects of what constitutes a moral action can be a useful guide when deciding what to do in a particular context. When faced with an ethical dilemma, it can be useful to ask:
- Who is being harmed?
- Whose rights are being violated?
Hopefully, this will help clarify the moral issues involved.
For your discussion: Do you think the distinction between rights and harms is a useful one? Can you think of other contexts where it might apply?