Surrogacy is a complicated matter, both legally and ethically, because of the variety of aspects that factor in, each of which is complex enough on its own. Both the advocates and opponents of surrogacy have appealed to cultural and social tradition, law, psychophysiology, and religious belief, without coming close to a definitive conclusion. The fact is, the supportive claims can be drawn in favor of both prohibiting and allowing surrogacy, as well as in support of both the genetic and the surrogate parents, both legally and ethically.
One of the more well-known and publicized cases dealing with surrogacy was the case In re Baby M, in which Mary Beth Whitehead signed a contract with William and Elizabeth Stern, stating that she would be the surrogate mother for William’s child, and would terminate her parental rights upon the child’s birth. However, after giving birth to a baby, she has found herself unable to do it and decided to flee with her husband and child and ignore the agreement.
Sterns sued, but the court has found that the surrogacy contract conflicted with the state laws on parenthood and thus was not enforceable. Instead, the case was ruled out based on the child’s best interests. Subsequently, Mrs. Whitehead was denied parenting rights as her family was deemed by the court as unfit for a child’s well-being. The case has sparked hot debate with some experts speculating that such ruling would encourage surrogacy and initiate women’s exploitation and human trade.
Several new phenomena have emerged since the Baby M case, the most significant being the successful implementation of the gestational surrogacy. Unlike natural surrogacy, where the surrogate mother is also a genetic mother of a child, in gestational surrogacy, she is only a carrier. This seemingly denies her equal rights of being represented as a parent in court, which, again, cannot be conclusively defined as good or bad.
The same technology allows same-sex couples to have a baby that does not include the surrogate’s genes. Other developments include the scientific advancements in cryopreservation, which allows several new options in conceiving a child, none of which, unfortunately, have been fully addressed by the legal system. In broad terms, the legal system lacks the full coverage of the question, and the gap is broadening as science advances. Cases regarding surrogacy reemerge fairly regularly and are ruled out differently each time. As the practice itself remains illegal in most U.S.states, no statutes exist.
The ethical side of the question remains equally complex. Different points of view on the justification of surrogacy can exist even within the same social or political group. For example, some women’s rights activists suggest that a surrogacy contract should be viewed as a means to benefit from using their bodies; however, they see fit while others compare it to the exploitation and slavery.
People that support the surrogate mothers who decide to retract their legal obligations and keep the child cite the sacred emotions of a mother, the religious justification, and the universal moral code in support of their position. Basically, they favor birth parents over legal parents using the normative ethics of deontology, judging all such cases universally as morally unacceptable in current society, thus recognizing the existence of the absolute moral maxim.
One can take it a step further and speculate that their judgment is evolutionary-based, as lots of long-established moral codes are. Social psychologists point to the fact moral justifications that come close to instincts (in our case – the maternal instinct) are often the strongest and hardest to overcome by counterarguments, which essentially puts them in the category of maxims, or absolute rules.
The argument in favor of surrogacy, on the other hand, is comprised mostly of rational arguments rather than the appeal to tradition. The advocates of the surrogacy usually stress on the free will and the right to use one’s body as one sees fit. They specifically target the irrationality of denial of such rights to women as it is based on prejudice and limits their choice to that reinforced by the male-dominant society.
Furthermore, they point to potential benefits surrogacy can provide for people who are otherwise unable to give birth to a child – same-sex couples, people with health issues, and even people who wish to have a baby without the need to go through pregnancy. They also imply that surrogacy is essentially an act of consensus which, when properly conceived, benefits both sides. The appeal to the common good as a result of surrogacy puts their justification in the domain of consequentialism, or, more precisely, utilitarianism, which implies that the action is good as long as it is beneficial in a maximum possible way.
Surrogacy and the rights of legal and birth parents are likely to remain controversial issues even after proper legal regulations are implemented because the issues it invokes are rooted deeply in both our society and our nature. Furthermore, both sides of the argument are firmly supported by well-established ethical standpoints of utilitarianism and deontology. Thus, reproductive technology, while demonstrating the tremendous potential, will likely face resistance and undergo serious changes before being fully incorporated into human culture.