There have recently been a couple of interesting articles about surrogacy worthy of comment but I’ve just been too busy. Now I’ll play catch-up. The more prominent article was on the front page of the Sunday NYT. I guess it’s third in a series, and I’ve commented on the earlier articles as well. The article offers several anecdotes of people using surrogacy and, for the most part, focusses on the legal uncertainties and risks.
A couple of weeks earlier there was an article focussed on a single clinic in Madison, Wisconsin, in the Madison Isthmus. It offers a much more positive view of surrogacy.
I’ve been thinking about how these two news stories fit together, and I’ve been thinking back on what I’ve written about surrogacy in the past. (I’ll link to the entries collected under the tag and you can thread some of those together if you want to get a more detailed sense.)
I’ve come to the conclusion that surrogacy is, in and of itself, neither necessarily good nor necessarily bad. The article about the Madison clinic and my earlier discussion here demonstrate that surrogacy can be quite a positive thing. The two main stories in the New York Times make it equally clear that surrogacy can be hugely problematic.
I suspect this conclusion should be quite unsurprising. I have no over-arching moral objections to the practices that make up surrogacy. While I object to the commodification of children, I don’t think that this is an inextricable part of the process of surrogacy, any more than it is an inextricable part of any other process by which one becomes a parent.
(It’s actually not clear to me that people who conceive children via intercourse should be immune from concerns about commodification of children. Where a child becomes a vehicle by which the adults manifest their wealth and privilege, there are elements of commodification no matter how the child came to be in that family.)
Similarly, much of my earlier critique of surrogacy (if you read back under that tag) focussed on the treatment of the surrogate and the societal understanding of pregnancy. But it seems that here too, there is nothing intrinsic to surrogacy that is (in my view) necessarily bad.
These articles, and others I have read and commented on in the last couple of years, make me think that surrogacy can be good or bad, depending on how it is managed. The outsourcing of surrogacy to what amounts to baby-farms in India seems terribly problematic, but the Madison clinic strikes me as a completely different matter.
This “it depends” position makes it a bit harder to come up with simple solutions. If surrogacy were bad, it would be easy to say “ban it.” But if it can be either good or bad then I suppose the question must be whether it is possible to structure it or regulate it in such a way that the good outweighs the bad substantially enough to make the whole package worthwhile. (In an ideal world, perhaps one could structure things to have only the good and no bad, but pragmatically, I think this is impossible.)
So I’ve been thinking about what sorts of laws/regulations/conditions encourage good surrogacy (what I think I once called “altruistic surrogacy“) and don’t encourage or even discourage problematic surrogacy arrangements.
And here’s where a second realization struck me, one contrary to the general thrust of the NYT article: More certain law does not necessarily generate better surrogacy arrangements. The Times means to make this point, I think, and for this reason links up to the ABA standards and observes the variation in law state to state. I do realize that the state-to-state variation makes life very difficult for many people. This is the problem of portability that I’ve discussed elsewhere. But putting aside portability issues, the Madison Surrogacy Center seems to function very well in a legal environment where these is very little settled law.
This suggests that what makes surrogacy better or worse isn’t the governing law but is rather something more individualized–the selection of potential surrogates, the matching of intended parents to surrogates, the counselling provided for all the individuals. The question, of course, is how to encourage this sort of behavior.