"Sebastian's Point" is a weekly column written by one of our members regarding timely events or analysis of relevant ideas, which impact the Culture of Life.
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12 April 2018
A Dubious Contractual Nullification
of Natural Law
The reboot of the sitcom, “Roseanne,” has been met with accolades from many conservatives. They claim the popularity of the show is due to allegedly representing the values of Middle America. I have not watched the reboot because I wasn’t a fan of the original and I knew the storyline of the new show included a positive, or at least morally neutral portrayal of surrogacy. I may be mistaken, but I have yet to hear a single conservative pundit who praised the show express any moral concerns regarding the surrogacy. This unquestioned acceptance of surrogacy as a social good presents a moral crisis just as serious as surrogacy itself.
Due to lack of awareness or understanding, many well-intentioned people don’t have any moral qualms about surrogacy. We see the end result, a child. Of course, a child is, in itself, a good, and we have nothing but sympathy for couples suffering from infertility. But does the desire for a “child of our own,” supersede all ethical, moral, and legal standards?
Before answering these questions, a basic understanding of what surrogacy entails is in order. The typical surrogacy today[i] involves three women; the egg donor; the surrogate, the woman who carries the child; and the intended party, or the woman considered to be the legal “mother.” The fertility clinic makes numerous embryos by mixing donor eggs with sperm from the intended party. By using IVF, the fertility clinic can ensure there is some genetic connection to the couple who commissioned the production of the child while prohibiting a genetic connection with the surrogate. Trivializing the significance of pregnancy and childbirth is built into the process.
Because IVF has a very low success rate, “spare” embryos are ALWAYS created. Once the embryos undergo genetic screening, the desired embryos are implanted into a surrogate. If there is a successful pregnancy, the “spare” embryos are frozen, experimented on, or destroyed.
The terms of a surrogacy relationship are spelled out in a contract. A contract that stipulates the creation of a child with the intended purpose of being sold.[ii] Under these agreements, a woman who is not genetically related to and did not give birth to the child is legally the “mother”; whereas the other women involved are nothing more than a donor and incubator with no parental rights. Their bodies are commodities to be purchased for a service. The creation, selection, and destruction (eugenics) of embryos, contractually mandated abortion should a disability or the wrong gender be discovered later, selective reduction, and the surrogate surrendering nine months of her life to the control of third parties, down to what she can eat; all of these issues are standard terms of a surrogacy contract.
This is a very cursory description of the clinical and legal aspects of surrogacy.[iii] We have yet to explore the devastating impact on the health of the women and children involved, legal nightmares created trying to determine who the “parents” are, coercion and exploitation of surrogates, emotional trauma, and surrogacy tourism to countries with very lax laws, to name a few.
Abuses are so pervasive that surrogacy is illegal or severely restricted in most of the developed world.[iv] A 2015 European Union Parliament resolution states in part:
114. Condemns the practice of surrogacy, which undermines the human
dignity of the woman since her body and its reproductive functions are
used as a commodity; considers that the practice of gestational surrogacy
which involves reproductive exploitation and use of the human body for
financial or other gain, in particular in the case of vulnerable women in
developing countries, shall be prohibited and treated as a matter
of urgency in human rights instruments; [emphasis added][v]
In January 2018, a study on surrogacy was presented to the United Nations, Human Rights Council. Its findings were less than favorable to the practice of surrogacy. Maud de Boer-Buquicchio, who presented the report correctly noted, “There’s no right to have a child under international law.” She further stated that children are not goods or services that the State can guarantee or provide. "They’re human beings with rights." Unfortunately, the study recommended regulation over prohibition.[vi]
Collectif pour le Respect de la Personne, CoRP (Collective for Respect for the Person), a French organization dedicated to abolishing surrogacy rightly pointed out the flaws with the UN’s recommendations.
[S]urrogacy, even when it does not entail any payment, is in itself an
infringement of human rights. [emphasis added] It infringes on
women’s rights. . . also infringes on children’s rights, since the child is
conceived, borne and delivered in order to be abandoned by its mother
for the benefit of others, in violation of a child’s basic right not to be the
object of a transaction. . .[vii]
CoRP accurately points out that regulating surrogacy would be like regulating, instead of prohibiting slavery.[viii]
It is important to stop abuses inherent in surrogacy agreements, but as noted above, even with the best regulations surrogacy is, in itself, abhorrent. Whether the European Union, the United Nations, or CoRP intended it, their positions reflect principles at the core of Western Civilization, namely natural law. Surrogacy is immoral because it violates our fundamental rights as human beings.
The Catholic Church’s teachings on human sexuality and the dignity of the human person clearly articulate how surrogacy violates natural law. The Catechism provides general guidance by affirming the humanity of children as gifts, not property and further elaborates, “ . . . power of doctors and biologists. . . establishes the domination of technology over the origin and destiny of the human person. Such a relationship of domination is in itself contrary to . . .dignity and equality. . . ”[ix]
Specifically, in Donum vitae, the Congregation for the Doctrine of the Faith reaffirms Church teaching and presents a very clear moral framework to judge issues such as surrogacy. "The transmission of human life is entrusted by nature to a personal and conscious act and as such is subject to the all-holy laws of God: immutable and inviolable laws which must be recognized and observed,” and “. . . Human procreation requires on the part of the spouses' responsible collaboration with the fruitful love of God; the gift of human life must be actualized in marriage through the specific and exclusive acts of husband and wife . . ..”[x]
Donum vitae aptly observes that surrogacy fails to meet the required moral standard and violates the rights afforded all of us under natural law:
Surrogate motherhood represents an objective failure to meet the
obligations of maternal love, of conjugal fidelity and of responsible
motherhood; it offends the dignity of the right of the child to be conceived,
carried in the womb, brought into the world and brought up by his own
parents; it sets up to the detriment of families, a division between the physical,
psychological and moral elements which constitute those families.[xi]
As professed by the Catholic Church and acknowledged by the UN and the EU, there is no “right to a child.” Women and children are not services to be purchased or commodities to be owned. The desire to be a parent does not create a right to violate the natural rights of another. This is not to minimize the legitimacy of the desire to have a child or the pain that an infertile couple suffers. On the contrary, promoting surrogacy as a solution to a desperate, infertile couple is morally repugnant.
A surrogacy contract creates a legal fiction that is at odds with natural law. As a society, we need to have a serious discussion about the human rights violations inherent in surrogacy, not being entertained by the topic on a sitcom.
[i] Originally, artificial insemination of the surrogate was standard. This is known as “traditional” surrogacy. With the advent of IVF, the process described in this article, “gestational” surrogacy, is now the norm.
[ii] Pro-surrogacy advocates and the law like to make a distinction between ‘commercial’ and ‘altruistic’ surrogacy, arguing that ‘altruistic’ arrangements are ethically palatable because the surrogate is not paid, except that she is. “Expenses” are always covered. Additionally, an altruistic surrogate is almost always a family member or close friend, which raises the concern of emotional coercion and pressure from family members.
[iii] There are so many variables involved with surrogacy that it boggles the mind. I offer a typical situation for illustrative purposes.
[iv] In most European countries surrogacy is either completely prohibited or severely restricted. In the United States, the law varies State to State. A handful of States, for example, California, expressly allow surrogacy. Another handful, for example, New York, expressly prohibit surrogacy. The remaining States that do not have any laws on the books, rely on judicial decisions of common law, producing mixed results.
[v] European Parliament 2014-2019, 30.11.2015 Annual Report on Human Rights and Democracy in the World 2014 and the European Union’s policy on the matter (2015/2229(INI)) Committee on Foreign Affairs. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A8-2015-0344+0+DOC+PDF+V0//E
[vi] Children risk being ‘commodities’ as surrogacy spreads: UN expert, UNB NEWS Tuesday 06 March 2018
United Nations, General Assembly Distr.: General 15 January 2018 Original: English
Human Rights Council Thirty-seventh session 26 February–23 March 2018 Agenda Item 3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, http://www.un.org/fr/ga/search/view_doc.asp?symbol=A/HRC/37/60&TYPE=&referer=/french/&Lang=E
[vii] Children are Human Beings, Not Goods or Services, A Press Release from Collectif pour le Respect de la Personne (CoRP)
[ix] Catechism of the Catholic Church (No. 2376-2378). http://www.vatican.va/archive/ccc_css/archive/catechism/p3s2c2a6.htm
[xi] Donum Vitae (No. II-A-3).
Ana Brennan, J.D., is Vice President of the Society of St. Sebastian and Senior Editor of the Journal of Bioethics in Law and Culture Quarterly.