I’m no fan of third-party reproduction. Anybody who reads my writings or who has watched any of the three documentary films I have produced on the topic knows that these arrangements in my view are fraught with medical, ethical, and legal problems that affect women and the children they produce in negative ways.
Take the breaking news of Baby Gammy in Thailand: The surrogate mother was carrying twins for the intended parents and did not know until late in her pregnancy that Baby Gammy had Down syndrome; allegedly the parents did not want the disabled child and asked the surrogate mother to abort the disabled fetus; the surrogate mother refused, carried the fetus to term, and is now parenting that child. Or consider the story breaking in Italy about an embryo mix-up, in which a woman just gave birth to the twins of the wrong couple; or the case of the wealthy young Japanese businessman who has fathered 13 babies via surrogacy. These stories should wake the world up to the gross human-rights abuses of women and children in the surrogate-mother industry. Even here in America we have our own surrogacy story gone very badly wrong: The estrangement of Sherri Shepherd, a former host of The View, from her husband, Lamar Sally, has left the future of their baby, conceived using egg donation and surrogacy, very uncertain. The couple is involved in a heated dispute over whether Ms. Shepherd has a legal obligation toward the child.
In the wake of the Baby Gammy scandal, industry stakeholders came forward immediately to offer their assessment of the problem as well as suggestions for its solution. To no one’s surprise, they proposed regulation as the solution to stopping these kinds of atrocities. If only Australia allowed commercial surrogacy, they say, infertile and same-sex couples would not have to go to Thailand to have a baby. Bring surrogacy home, clean it up, get rid of the extremely bad actors, and all will go well in the end. Contracts, enforceable and clearly spelled out, will deal with mix-ups and changed minds. Informed consent will be the ultimate protection. In other words, you signed up for this, so let the cards fall where they may.
An Australian law professor, recognizing the unequal status of surrogates and egg donors in relation to wealthy intended parents, made this audacious statement: “Yes, there are massive disparities of wealth, and education and information, but why does that mean in a reproductive endeavour that a [third-world] woman can’t make a decision of her own?”
But if something is wrong, regulation won’t make it right. How would regulation and enforceable legal contracts help Baby Gammy and his birth mother? Would the surrogate mother be forced to abort a baby against her wishes? Would the intended parents back in Australia be forced to raise and care for a disabled child they don’t want? Would the contract have stated that if no one wanted the baby, the baby would be surrendered to adoption or foster care? In the case of mix-ups and human error, would one woman who bonded with the child growing in her womb be forced to hand over a baby she’d come to love and look forward to holding, nursing, and raising? Would the baby, who naturally bonded with his birth mother, be handed over to people who are basically strangers even though he or she is biologically related to them? What impact does all of this have on husbands, fathers, and other children in the home who are anticipating the birth of a new baby only to have the baby removed at the very moment of birth?
Contracts and regulation are all fine and good when it comes to things such as manufacturing, the environment, and buying and selling cars, houses, and businesses. Even then, though, we know things can still go wrong; thus myriad lawsuits make their way into our court system. So why do we think that regulations and contracts, when it comes to using one woman’s body and perhaps another woman’s eggs in order to create a whole new human being, is the way to move forward to eliminate harm?
I suggest that these horrific examples, all arising in only a few weeks’ time, should make clear that humanity would be better served by stopping these third-party reproduction practices now. We should do it for all of humanity but especially for the sake of the women — and for the children who bear the brunt of adult desires that trump their rights to bodily integrity, knowledge of their origins, and connection to their biological kin.
— Jennifer Lahl is the founder and president of the Center for Bioethics and Culture and the producer of the documentary films Eggsploitation, Anonymous Father’s Day, and Breeders: A Subclass of Women?