Surrogate motherhood : an acceptable solution for infertile couples?

It has been variously estimated that one out of six couples or 15-20 percent of couples, are infertile. The changes in social attitudes and social welfare policies towards single mothers together with the increased use of contraception and abortion mean that the demand for adoptable babies now surpasses the supply. Those infertile couples who are frustrated by the long adoption procedures and are unable to be helped through the Artificial Insemination by Donor (AID) or In Vitro Fertilization (IVF) programmes are turning in increasing numbers to a practice with a long history which has only recently gained world-wide attention - the practice of surrogate motherhood. The practice of surrogacy dates back at least to Biblical times. One of the first recorded instances is found in the Old Testament. Almost 4 000 years ago Sarah, the wife of Abraham, could not conceive and sent her husband to her Egyptian maid Hagar saying \It may be that I may obtain children by her\". Hagar thus bore Ismael. Another example is that of Rachel wife of Jacob who required Billa to \"bear upon my knees that I may also have a child by her\". Jacob's other wife Leah had the same arrangement with her slave-girl Zilpah. Today surrogate motherhood has provoked considerable debate on the moral ethical legal and social consequences issues to which existing legislation has failed adequately to address itself. In a jurisdiction where no specific legislation on surrogacy exists the application of existing laws produce distorted results which are beyond the probable legislative intent. Where specific legislation prohibits the practice of surrogacy it has failed to recognize long term implications of such prohibition. Most of the known cases of surrogacy arrangements involve the insemination of the surrogate with the sperm of the husband of the infertile couple. The insemination of the surrogate with the sperm of a person other than the husband of the infertile couple is of course a possibility but would probably be a method resorted to only where both the wife and husband are infertile. In this case the resultant child has no genetic link with his intended parents. The expression infertile couple in this paper is used to denote a couple where the wife is incapable of bearing or carrying to term a child. Discussion in this paper is limited to infertile couples who participate in surrogacy arrangements by the most common means of the artificial insemination of the surrogate by the sperm of the husband. It is by the use of such a practice that the major ethical and legal issues arise. Recent developments in the field of In Vitro Fertilization now enable an embryo to be implanted in a woman who is not the genetic mother of the embryo. In the case of a surrogacy arrangement the surrogate becomes the gestational or 'host' mother and where the couple have both contributed the genetic material they are the genetic parents. Three other possibilities become available with the use of the technique of embryo transfer. The first is where an embryo consisting of the wife's ovum fertilized by donor sperm is implanted in the surrogate. In this case only the wife has a genetic link to the resultant child. The second is where an embryo consisting entirely of donated genetic material is implanted in the surrogate. In this case neither the couple nor the surrogate have genetic links with the resultant child. It is difficult to envisage the circumstances in which such an arrangement would be resorted to. The third possibility is where an embryo consisting of the ovum of a donor fertilized by the sperm of the husband is implanted in the surrogate. In such a case the child has a genetic link to the husband. In all cases involving embryo transfer the surrogate would be the gestational mother and most of the legal and ethical issues relevant in the case where the surrogate herself has contributed genetic material to the child may not be as relevant. Although it is possible to understand the desire of single man or a. single woman or a homosexual couple to use the services of a surrogate mother the issues raised in such an arrangement involve different considerations from those inherent in arrangements made by infertile couples. The participation in a surrogacy arrangement by a single person means intentionally depriving a child of a second parent. Certainly society can do little to prevent a woman from becoming pregnant whether she is single or married. However by the rules of nature and the conditions imposed by most communities a single man has much more difficulty in deliberately creating a child with the intention of being its sole parent. The basic reason for allowing a couple to use artificial reproductive techniques is to enable the couple to fulfil their love through procreation. This argument can be extended to surrogacy which may be viewed as a form of artificial reproduction. Through the use of simple artificial insemination procedures not involving medical intervention a homosexual couple may become 'parents' of a child born to a surrogate. However the use of a surrogacy arrangement in these circumstances raises serious social implications for the child and for the accepted elements of what constitutes the basic unit of society - the family. The purpose of this paper is to discuss the major problems inhibiting the use of surrogacy including existing legislation concerns of public policy and judicial decisions and comments. In the findings of the committees formed in various jurisdictions to look into the issue of surrogacy arrangements it is noted that the majority of the reports favour prohibition of the practice of surrogacy and two of the jurisdictions have enacted legislation accordingly. In Canada the province of Ontario favours the use of surrogacy through legislative control as do some of the States in the United States. These reports and relevant legislation are evaluated with a view to comparing the attitudes in different jurisdictions. The effectiveness of private contract in surrogacy arrangements as practised in the United States is examined and compared with the use of legislation to control such arrangements. The arguments for and against the prohibition of surrogacy are presented with the conclusion that legislation allowing and regulating the practice of surrogacy is to be preferred in order to protect the welfare of all the parties especially that of the child."