Surrogacy is under parliamentary review in Queensland. Director of Brisbane archdiocese’s Queensland Bioethics Centre RAY CAMPBELL explains the Church position on the issue
THE Queensland State Parliament is holding an inquiry into the practice of surrogacy. The inquiry is considering whether surrogacy should be decriminalised and, if so, in what ways the Government should regulate the practice through legislation.
Surrogacy is proposed as a possible solution for some people who suffer from infertility. It is also being proposed as a way in which a same-sex couple might have a child which is genetically related to one of the couple.
For a married couple to discover that they are infertile is a tragic event.
Most couples who marry do so with the idea that at some stage they will have a family. When a couple find they are infertile a large part of what they had foreseen as their life-project together is shattered.
Some seek ways to get around their infertility through various means of assisted reproduction. The proposed option for some people is surrogacy.
But surrogacy goes against the nature of marriage itself.
Marriage is a permanent and exclusive communion of a man and a woman ordered towards their own well being and the procreation and upbringing of children.
Surrogacy introduces an outsider into the marriage covenant with the aim of producing and/or carrying a child who is not the fruit of the marital act of the couple.
Surrogacy “sets up to the detriment of families, a division between the physical, psychological and moral elements which constitute those families”. (Sacred Congregation for the Doctrine of the Faith, Donum Vitae)
In so doing it acts against the marital good.
Marriage involves a commitment of the married couple to each other. Part of that commitment is to have children only with one’s spouse.
By breaking this commitment surrogacy undermines both the commissioning couple’s marriage and the surrogate’s marriage if she is married.
As well as the nature of marriage itself, in considering surrogacy the Government should bear in mind “the best interests of the child”, in other words, what is the best for a child a couple might have.
No-one has a right to a child. A child is a subject of human rights, not an object of someone else’s rights.
A child is entitled to be respected as equal in dignity to his or her parents, including in his or her origins.
However, in a surrogacy agreement, whether it is commercial or not, the child is the object of an arrangement aimed at fulfilling the needs of the commissioning parents.
The child to this extent is commodified.
In most cases of surrogacy the surrogate mother not only carries the child in her womb, she also supplies the egg, ie she is the mother of child.
Conception usually takes place through artificial insemination with the sperm of the husband of the commissioning parents.
The child is created in circumstances of ambiguous parenthood in which a child may have a matrix of parents – social mother, gestational mother, genetic mother, social father, genetic father and the men (if any) who partner the gestational and genetic mother.
The experience of children whose genetic origins are so confused is sometimes referred to as “genealogical bewilderment”.
We have some knowledge of this from the experience of adult donor conceived children. These are children who were conceived from donated sperm.
More and more adult children conceived through donor insemination are telling their stories of the effects this ambiguous parenthood has had on them, in particular their disturbed sense of identity.
In surrogacy, adults knowingly set about to create a situation where the child’s genetic parentage, gestational parentage and social parentage will be discontinuous.
Once known to the child (and often suspected even when not told), the child’s personal identity is called into question.
Personal identity is a complex reality, but it certainly includes our genetic heritage.
There are ethical issues surrounding the surrogate mother as well.
“Altruistic” means to have regard for the well being of others.
It is hard to see how it can be said that the gestational mother is motivated by the well being of the child.
It would appear that her altruism is supposedly directed to the well being of the commissioning parents. But how does one establish that this is the motivation?
The surrogate could be acting from a low self-esteem and a desire to please others as did Elizabeth Kane, the first legal surrogate mother in the United States.
A prospective surrogate could also be acting out of guilt after an earlier termination of pregnancy.
Or the surrogate might simply be someone who “enjoys” being pregnant. Or the surrogate herself might be a victim of emotional exploitation.
No-one can ensure that the surrogacy arrangement is “altruistic”, and it can never be “altruistic” vis-à-vis the child.
Even if the surrogate freely enters into the arrangement still,
“surrogate motherhood represents an objective failure to meet the obligations of maternal love, of conjugal fidelity and of responsible motherhood; it offends the dignity and the right of the child to be conceived, carried in the womb, brought into the world and brought up by his own parents …” (Sacred Congregation for the Doctrine of the Faith, Donum Vitae)
Finally, as regards the commissioning parents – the sad fact is that surrogacy cannot give them the only child they can legitimately hope for: the child who is the fruit and embodiment of their marital love because conceived in their marital embrace.
Surrogacy gives them “second best”, and should anyone wish that for a child?
The first question the parliamentary inquiry is asked to consider is whether altruistic surrogacy should be decriminalised in Queensland. (Queensland is the only state where it is a criminal offence for the surrogate mother and commissioning parents.)
The criminal law cannot be used to enforce all morally good actions, for example conceiving a child outside of marriage is immoral, but not a criminal offence.
Sometimes making something a criminal offence can lead to greater evil.
This could be the case with surrogacy.
If someone has entered into a surrogacy arrangement and is threatened with exposure and a criminal sanction she may resort to an abortion in order to “destroy the evidence”.
The Australian Catholic Bishops Conference has consistently argued against surrogacy but not for the criminalisation of “altruistic” surrogacy as such.
Instead the bishops argued for a range of other measures to seek to discourage surrogacy.
I would follow the example of the Catholic bishops and argue to decriminalise surrogacy as regards the surrogate mother and the commissioning parents.
However I would recommend putting in place other measures to discourage surrogacy. Hence I argue that surrogacy “contracts” should remain null and void, ie they should be unenforceable.
Furthermore the Government should seek to discourage surrogacy by making it an offence to: advertise or promote surrogacy arrangements; receive a fee in connection with professional services to assist surrogacy (this would include IVF procedures); Medicare should not fund medical procedures involving surrogacy arrangements; in the event that surrogacy occurs the woman who gives birth should be recognised as the mother of the child.
In the case of the birth of a child through surrogacy the situation should be treated much the same as a child who is born outside of marriage.
The woman who gives birth should be regarded as the mother.
If she does not want to keep the child then the principle of the child’s best interests should be used to ensure that a decision about social parenthood is determined not by a surrogacy contract but according to a judicial decision in the child’s favour.
