Liezl van Zyl

Interpretations, perspectives and intentions in surrogate motherhood

In this paper we examine the questions “What does it mean to be a surrogate mother?” and “What would be an appropriate perspective for a surrogate mother to have on her pregnancy?” In response to the objection that such contracts are alienating or dehumanising since they require women to suppress their evolving perspective on their pregnancies, liberal supporters of surrogate motherhood argue that the freedom to contract includes the freedom to enter a contract to bear a child for an infertile couple. After entering the contract the surrogate may not be free to interpret her pregnancy as that of a non-surrogate mother, but there is more than one appropriate way of interpreting ones pregnancy. To restrict or ban surrogacy contracts would be to prohibit women from making other particular interpretations of their pregnancies they may wish to make, requiring them to live up to a culturally constituted image of ideal motherhood. We examine three interpretations of a “surrogate pregnancy” that are implicit in the views and arguments put forward by ethicists, surrogacy agencies, and surrogate mothers themselves. We hope to show that our concern in this regard goes beyond the view that surrogacy contracts deny or suppress the natural, instinctive or conventional interpretation of pregnancy.

Intentional Parenthood and the Nuclear Family

Reproductive techniques and practices, ranging from ordinary birth-control measures and artificial insemination to embryo transfer and surrogate motherhood, have greatly enhanced our range of reproductive choices. As a consequence, they pose a number of difficult moral and legal questions with regard to the formation of a family and our conception of parenthood. A view that is becoming increasingly common is that parental rights and responsibilities should not be based on genetic relationships but should instead be seen as arising from agreements or contracts between individuals. Accordingly, a man who consents to his wifes artificial insemination by donor (AID) and not the sperm donor, is the legal father of the child; in surrogacy agreements, the “intending mother,” and not the surrogate, has the right to raise the resulting child. While agreeing that biology should not form the basis for assigning legal parenthood, I argue that the theory of intentional parenthood, despite being put forward as a liberal theory, is geared toward or will have the function of protecting the nuclear family and inhibiting the formation of alternative family forms.Reproductive techniques and practices, ranging from ordinary birth-control measures and artificial insemination to embryo transfer and surrogate motherhood, have greatly enhanced our range of reproductive choices. As a consequence, they pose a number of difficult moral and legal questions with regard to the formation of a family and our conception of parenthood. A view that is becoming increasingly common is that parental rights and responsibilities should not be based on genetic relationships but should instead be seen as arising from agreements or contracts between individuals. Accordingly, a man who consents to his wifes artificial insemination by donor (AID) and not the sperm donor, is the legal father of the child; in surrogacy agreements, the “intending mother,” and not the surrogate, has the right to raise the resulting child. While agreeing that biology should not form the basis for assigning legal parenthood, I argue that the theory of intentional parenthood, despite being put forward as a liberal theory, is geared toward or will have the function of protecting the nuclear family and inhibiting the formation of alternative family forms.

In Defence of Agent-Based Virtue Ethics

Abstract In ‘Against Agent-Based Virtue Ethics’ (2004) Michael Brady rejects agent-based virtue ethics on the grounds that it fails to capture the commonsense distinction between an agents doing the right thing, and her doing it for the right reason. In his view, the failure to account for this distinction has paradoxical results, making it unable to explain why an agent has a duty to perform a given action. I argue that Bradys objection relies on the assumption that an agent-based account is committed to defining obligations in terms of actual motives. If we reject this view, and instead provide a version of agent-basing that determines obligations in terms of the motives of the hypothetical virtuous agent, the paradox disappears.Abstract In ‘Against Agent-Based Virtue Ethics’ (2004) Michael Brady rejects agent-based virtue ethics on the grounds that it fails to capture the commonsense distinction between an agents doing the right thing, and her doing it for the right reason. In his view, the failure to account for this distinction has paradoxical results, making it unable to explain why an agent has a duty to perform a given action. I argue that Bradys objection relies on the assumption that an agent-based account is committed to defining obligations in terms of actual motives. If we reject this view, and instead provide a version of agent-basing that determines obligations in terms of the motives of the hypothetical virtuous agent, the paradox disappears.

Qualified-agent virtue ethics

Abstract Qualified-agent virtue ethics provides an account of right action in terms of the virtuous agent. It has become one of the most popular, but also most frequently criticized versions of virtue ethics. Many of the objections rest on the mistaken assumption that proponents of qualified-agent virtue ethics share the same view when it comes to fundamental questions about the meaning of the term ‘right action’ and the function of an account of right action. My aim in this paper is not to defend qualified-agent virtue ethics but to correct this misunderstanding, and this will hopefully leave us in a better position to evaluate it.

Altruism and Generosity in Surrogate Motherhood

Abstract In this chapter we address the problematic nature of altruistic motivation, commonly required of surrogate mothers, live organ donors, clinical research participants and health professionals. Altruism, understood as involving a desire to help others, often to a self-sacrificing degree, gives rise to various conceptual and ethical difficulties. We argue that encouraging the virtue of generosity is preferable to requiring altruistic motivation, because generosity is consistent with reciprocation as well as legitimate concern for self. A correct understanding of generosity also alleviates concerns about exploitation and commodification. Our focus in this chapter is on surrogacy, but our arguments apply to other domains as well.

Surrogacy, Compensation, and Legal Parentage: Against the Adoption Model

Surrogate motherhood is treated as a form of adoption in many countries: the birth mother and her partner are presumed to be the parents of the child, while the intended parents have to adopt the baby once it is born. Other than compensation for expenses related to the pregnancy, payment to surrogates is not permitted. We believe that the failure to compensate surrogate mothers for their labour as well as the significant risks they undertake is both unfair and exploitative. We accept that introducing payment for surrogates would create a significant tension in the adoption model. However, we recommend rejecting the adoption model altogether rather than continuing to prohibit compensation to surrogates.

Law and Regulation

Without certainty over legal parentage, the intended parents cannot trust the surrogate completely. The professional model uses the agreement to establish the parental rights of the intended parents before the surrogate becomes pregnant. She is never the legal mother of the baby and so does not relinquish it. This removes the problem of transferring parental rights, whether by adoption or some other mechanism. Intention is the basis of legal parentage rather than genetic relationship, gestation or best interests. Once a pregnancy is established no one can change their minds.

TrustTrust worthiness and Care

Trust is a core value in surrogacy. Intended parents face risk and uncertainty in case the surrogate decides not to relinquish the baby. Surrogates fear that intended parents will not take the baby or will renege on their agreement with her. Commercial contracts cannot establish trust and a relational bond is too fragile to do so if something goes wrong. The professional model adopts the concept of professional trust where licensing, regulation, and selection for ethical qualities make practitioners trustworthy. Sanctions for unethical conduct protect users of the service.

The Professions and Professional Ethics

The professional model requires support from the relevant professionals to all parties during the process. This chapter outlines the distinct role of each of these professions, namely legal and medical practitioners, social workers, counsellors, nurses and midwives. All surrogacy arrangements, traditional or gestational, are formal. They have to be approved and conducted through fertility clinics. All surrogates must be registered to ensure that they are medically and psychological healthy and have the necessary ethical awareness and appreciation of the duties they have towards the intended baby and the intended parents. Similarly, the intended parents must understand their responsibilities to the surrogate as well as her rights. She cannot keep the baby but she has other important rights as a patient and autonomous person.

ExploitationExploitation and Commodification

The biggest worry about surrogacy is that it exploits women and turns them and the babies into commodities. This chapter explores exploitation and commodification in detail. It shows that some arrangements, including altruistic surrogacy, do exploit women but that exploitation could be reduced and potentially eliminated in the professional model. Some commercial arrangements commodify women, especially in transnational surrogacy, but this could also be avoided.