Surrogacy Revisited–An Empirical View

Yesterday I posted a link to a recent scholarly paper that reviews the empirical research on surrogacy.   (It’s by Professor Karen Busby, a professor of law at the University of Manitoba and Delaney Vun, a lawyer in Winnipeg who attended the University of Manitoba.  The author information is at the end of the paper.)  I’ve had a chance to read it now, even give it a little thought. 

I’ve written about surrogacy fairly frequently on this blog.    Many of the entries were in response to news stories.   You can find previous posts under this tag.    Reading this article made me think back on what I’ve said and also reflect on some of the earlier coverage I was responding to.  

News coverage is, by definition, anecdotal.     By contrast Busby and Vun have examined the existing research on surrogacy in the US, Canada and England.   For starters, let me acknowledge that I’m not in a position to evaluate the thoroughness of their survey of the literature, nor can I assess the methodology of the studies they examine.   So for the most part, I’ll take it on faith that the survey of complete and the studies sound. 

It’s really worth taking the time to read the full paper, but here’s what I see as the takeaway:   The authors review multiple studies that interviewed/evaluated surrogate mothers as well as commissioning parents and, in one study, the relationship of the parents to the resulting children.   Based on this empirical research very few of the articulated concerns about surrogacy (either gestational or traditional) seem to be warranted.

In particular, the authors identify three  inter-related rationales for restricting surrogacy:   that a surrogate mother cannot give meaningful consent before delivery, that there is significant potential for exploitation of surrogate mothers, and that the practice commodifies women and children.    They then compare these concerns to the actual experience of surrogacy.   Strikingly, the studies reviewed do not find any basis to conclude that the rationales offered reflect the reality of surrogacy.   In other words, the concerns raised appear to be largely baseless.  

One aspect of their paper leads me to be a bit cautious.   At several different points, they discuss how infrequently surrogacy goes awry.   Yet not so long ago, the New York Times focussed on a series of instances in which this is exactly what happened.    (The paper does not reference the NYT article, but that could be an accident of timing.)    

Of course, newspaper coverage is likely to focus on the messy and dramatic cases rather than the mundane ones, even if they are atypical.   And any number of the pieces I used as taking off points were, in fact, about successful uses of surrogacy.    

Busby and Vun conclude that the critical factor is the relationship between the adults involved.    Happily enough, this supports my own view.   And it suggests the direction that regulation ought to take.    Regulation should be designed to encourage formation of a good relationship between the parties. 

In the end, Busby and Vun offer some more specific suggestions for productive surrogacy regulation.   It seems to me that these are worth careful consideration.   But one thing about this part of their work strikes me in particular:   There’s only one line about whether the woman who gives birth is a mother, and even that is somewhat oblique.   On pages 52-53 it says: 

“As well, consideration should also be given to whether the surrogate mother should have the right to reverse her decision to relinquish the child within a short period after giving birth regardless of the nature of the surrogacy.” 

While Busby and Vun aren’t particularly concerned with who the legal parents of the child are, it seems to me that giving the surrogate the right to reverse her decision is effectively saying that she is the mother of the child and can, like any mother, decide to keep her child.  

I’ll stop here for the moment. I’ve a bit more to say but I’ll save that for next time.

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3 responses to “Surrogacy Revisited–An Empirical View

  1. Interesting article. However, I am not convinced that there are not issues with surrogacy in the United States. Most surrogates visit web sites and read “happy stories” that end well. They are not given the facts or stories like Baby M or JF v. DB. Once they are in contract and have questions, they no longer have an attorney and are controlled by the intended parents and their attorny. I am not saying that surrogacy should not be allowed, but there need to be tighter laws. For example, in Florida you must be married so a Florida resident should not be allowed to enter a contract in another state just to get arounf her state laws. Also, if there are not any statutes regulating surrogacy, it should not be allowed in that state. Without these legal expectations, neither party knows for sure what is expected of them. Some states require that at least one party of the commisioning couple is biologically related. In a recent case from Ohio, the egg and sperm were donated, the intended mother was a single mother from Florida and now the appeals court has to decide who the mother is. The child was with one party for year and is now with the other party and may soon be back with the other party. How is that a good situation for a child? There are too many unknowns and without law to help make things clear, it can easily become a disaster!

    • I am inclined to agree with you that surrogacy needs to be regulated or structured in some way. While I think the press may tend to play up the bad cases, I feel like this paper makes it all seem a little too rosy. There are several places where they makes statements about the dearth of problematic cases which I feel must not be quite true–in part because of the cases played up in the press. The question, of course, is what the right sort of regulation is.

  2. I beg to differ wtih the statement that the surrogate is controlled by the Intended Parents and their lawyer once the contracts are signed. As you know, the surrogate has a lawyer to review the contract and help to structure what is in it as far as her obligations. She and her lawyer can suggest changes if she is uncomfortable with her obligations. And if she doesn’t like what it says she does not have to sign it. If for some reason there is a gray area that is not addressed in the contract she can bring her lawyer back into the situation for his/her input.

    That said, what exactly do you mean by “control”? Have you ever tried to “control” someone? She has entered into the surrogacy agreement and agreed to do her best to have a heatlhy pregnancy. The Intended Parents can’t control what she eats, where she goes, what she says (outside of keeping their identity confidential), who she sees, etc.. They can and have a right to ask that she do everything in her power to ensure that she have a healthy baby. (And every surrogate I have met wants to do that.) There is never any guarantee of a healthy baby no matter what, but eating healthy, not doing anything to endanger the pregnancy and taking care of her emotional health do not seem like unreasonable, controlling things to ask for . This is a job and those are her responsibilities. She knows that going into this arrangement and if those things feel controlling then she should not be considering surrogacy.

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