A couple of days ago I wrote about a recent opinion on surrogacy from the UK. You might want to go read that post first–it’s the first of the two links above, the second being the actual opinion from the case. I won’t repeat the facts here, but they do bear reading (hence the link to the actual opinion.)
Also worth noting is information Natalie Gamble added in the comments to the last post: This is only the second published opinion about surrogacy from the UK, the first being from 2007. (It might be good to read that if someone can send or post a citation.)
I assume we’ll all agree that the underlying scenario here is not exactly desirable–perhaps even that it is a disaster. The question is, what do we take away from that. One way to think about this is to try and figure out what went wrong here and then consider whether there is anything to be learned from that.
I actually think it is pretty clear what went wrong–the people involved entered into this agreement without giving sufficient thought to what they were doing and what it might mean for each of them as well as for the child to be created.
They were able to do this in part because they took a distinctly low-tech approach to surrogacy which didn’t require the participation of any established center, organization or health provider. Thanks to the wonders of the internet, they were able to locate each other on their own. It’s even possible (though I don’t recall that this was true) that they gained (unwarranted) confidence in their ability to do this on their own by virtue of information they gleaned from the internet. (As I suggest, this may not be the case, but it certainly seems possible.)
With these points in mind, what can we say? I’d offer two observations.
Observation 1. The problem was not created by the law governing surrogacy arrangements. My guess is that the people involved here weren’t focussed on the niceties of law–who exactly is a parent and why. I doubt knowledge of the law would have prevented this from happening. And perhaps more importantly, different law (law that said that the intended parents were the parents) probably wouldn’t have prevented this either.
This seems to me fairly important. To the extent the main debate/discussion about surrogacy and law is sometimes about who are the legal parents of the child, it doesn’t address the sort of problem case you see here. That suggests to me that the debate/discussion may be misdirected or it may be incomplete.
Observation 2. The way to prevent problem cases like this one would be through counselling and screening. I think most everyone who thinks hard about surrogacy supports the general idea of counselling/screening. Surely not everyone who is interested in surrogacy is capable of following through with it and not everyone is able to access their capacity without some counselling about what is involved. (I mean to apply that statement to both potential IPs and potential surrogates.)
Any system of counselling/screening will, on occasion, fail. As the judge in this case notes, new communication technologies make it possible for people to act on their own. And it’s useful to remember that surrogacy can be decidedly low tech, even if it isn’t always. I just don’t see any way at all to guarantee that people won’t act like the folks here, essentially skirting the counselling/screening systems in place. The question for me is how to we maximize the chances that the counselling/screening systems will be effective.
I don’t have clear answers, but I do have two further thoughts to offer. (Note the critical distinction between the aforementioned “observations” and “thoughts?” Really, I’ve no idea, I’m just trying to keep things organized.)
Thought 1. One difference between the organization of surrogacy in the UK and that in the US is the role of profit-making entities. Surrogacy in the US is facilitated (mostly? entirely?) by for-profit ART centers. Surrogacy in the UK is facilitated by not-for-profit centers. (If this statement is wrong, please someone tell me. I think it is correct but I profess no real expertise here.) It would seem to me that a for-profit center has a greater interest in ensuring a good supply of both IPs and surrogates–after all, it makes its money off the deal. I wonder if that might make them slightly less interested in effective screening/counselling. After all, helping people come to the conclusion that surrogacy is not for them isn’t how they make their money.
I don’t mean to suggest here that all for-profit surrogacy centers will always fail to provide meaningful screening/counselling. I’m quite sure that is not the case. All I mean to say is that it would seem to me that the incentives of a for-profit center are somewhat different and thus, sometimes, at the margins, you would expect to find different behavior. It’s just something to keep in mind.
Thought 2: The greater the cost of surrogacy, the more likely people will be moved to do-it-themselves as these folks did. If people do-it-themselves they sidestep whatever counselling/screening is in place, which seems to me undesirable. That’s something I’d keep in mind.
I will stop here–quite long enough. More to follow.