Printer Friendly

Surrogate Motherhood: The Legal and Human Issues.

Surrogate Motherhood: The Legal and Human Issues

The final edge of life--death and dying--dominated bioethics discussion in the 1970s and 80s. It looks as if the 90s will be dominated by the other edge--conception and birth. Abortion, fetal tissue donation, genetic manipulation of conceptuses, genetic screening of fetuses, infertility treatment, surrogacy, embryo experimentation, selective termination of induced multiple pregnancies, fetal therapy, forced cesareans, and frozen embryo ownership are all before us. In 1983, fertility researcher Pierre Soupart speculated that hybridization of apes and humans might be attempted. It is of some comfort that chimera production has not yet been tried. We are already in enough trouble.

Initial analyses of birth/conception-related issues borrowed their ethical content from analyses of treatment termination (in turn borrowed from human experimentation regulation). This is the language of privacy rights and personal autonomy. Rights language is thought to provide a coat to fit all wearers, appropriate to all occasions. Alas, it seems both sadly out of place and poorly tailored when it comes to fetuses. Although we have chosen to isolate dying patients from their social matrices when addressing decisions to forgo life-sustaining treatment, we cannot similarly isolate the fetus: it is too intimately related to the woman who holds it within her body and often to the man who participated equally in its conception. These issues are first of all problems of relationship: relationships chosen and unchosen, intended and unintended. The atomistic language of rights and autonomy simply does not wear well.

Two recent books, Recreating Motherhood by Barbara Katz Rothman, and Surrogate Motherhood by Martha A. Field, offer analyses of birth and parenthood that emphasize not rights but the relationship between mother and fetus/child-to-be. Field focuses on surrogacy but also briefly addresses other kinds of infertility treatment. Rothman intentionally casts a wider net in her attempt fully to reconceptualize childbearing and childbearing.

Although these books present very different ways of thinking about pregnancy and childbearing, each gives an central place to the pregnant woman in her relationship to the fetus she bears. Rothman, a sociologist, rejects this culture's traditional view of motherhood. Field, a law professor, uses legal traditions to support what some may see as nontraditional conclusions: that the "contracting" mother should have an uncontested right to custody of the child she bears.

Rothman rejects the patriarchic-technological-capitalistic ideology she believes dominates childbearing, an ideology in which children are products made by women for men, owned by men, and up for sale. (Although one may argue about the dominance of this ideology, it is clear that this is the conceptual engine that drives surrogacy practices.)

The patriarchic view of childbearing is based upon the idea that the male seed, when placed in an appropriate environment, grows into a baby. Using this planting metaphor for humans, Rothman argues, denies the contribution of women, turning them into containers, temporary custodians of babies who are the real property of men. Our comfort with patriarchal ideologies is displayed in the term "surrogate mother." In what way was Mary Beth Whitehead a surrogate mother? Unquestioning use of this term can be explained only by a belief that the baby belonged to William Stern. Mrs. Whitehead was a stand-in for his wife. Motherhood thus becomes a kind of honorific title belonging to the woman of the man whose seed created the child.

The technological ideology means that all is product. (In fertility research, for example, babies are the "products of conception.") All activities become manufacture, and quality control, efficiency, and productive use of resources are the standards for decisionmaking. Here we spot genetic screening and manipulation as means of quality control; multiple IVF embryo implantation and the resulting need for "selective termination" as efficiency concerns; and fetal tissue and anencephalic organ donation as productive use of resources.

Rothman presents an alternative vision with complex implications: pregnancy is a physicial and social relationship, and motherhood, which begins long before birth, is about connection. It is the opposite of alienation, and by restoring understanding of this relatedness Rothman also intends to illuminate other alienation: "mind and body; public and private; personal and political; work and home; production and reproduction; masculine and feminine" (88). All shall be made whole.

Chapters on abortion, adoption, infertility treatment, medicalized childbirth, fetal medicine, midwifery, treatment of seriously ill newborns, child care, surrogacy, and fatherhood illustrate this emphasis on connection. Some explorations are more persuasive than others. The abortion chapter emphasizes the decision not to take on a "life-long commitment" of relationship using a questionable parallel between contraception and abortion. Rothman says that "seeing women as creators, not containers, means seeing abortion as refusing to create, not destroying that which we contain" (123). This statement's force depends upon accepting that there is no intrinsic value to embryonic life; its meaning (and value) are created only in relationship.

Rothman's vision may please those who cherish an opportunity for new thoughts, new metaphors, new possibilities. Other may find it untidy, personal, or insufficiently grounded. What after all is this relationship between pregnant woman and fetus that it should counter the weight of social tradition, language patterns, and fathers' wishes? For those who have borne children (or who have longed to) the importance of the relationship may be obvious. For others, it may seem special pleading or a case of dubious moral intuition.

Martha Field's book is more traditional, more linear, more logically demonstrable. Her aim is to "sort out the legal issues involved in the surrogate motherhood debate so that a layperon can understand them" (vii). But she is an advocate as well as an issue sorter. She would not mind if surrogacy were outlawed, but she argues for permitting surrogacy contracts while denying legal enforceability. She also argues that women who withdraw from surrogacy contracts should be given custody of their child without having to prove that they are better parents than the contracting fathers. This places surrogacy contracts on a parallel with adoption agreements, despite the difference: the contracting male is genetically related to the infant. Field downplays the relevance of the father's genetic relationship to a child: "I do not believe that the differences [between adoption and surrogacy] are sufficient to sustain radically different rules concerning whether a contract is enforceable against the mother" (88-89).

If custody becomes a question, Field concludes that parent-child bonding is so important that whoever is to have final custody should have it soon after birth and should have it permanently. She recommends giving the birth mother a week or so after physical custody is relinquished to change her mind. After that, the question of custody would be closed. Her attempt is to find solutions that are equitable for parents and, if not best, at least good for children.

Field's work is impressive both in its scope and detail. It is difficult to imagine any possibilities within surrogacy that she has not considered and assessed, any problems that she has not worked out. Her conclusions are a sensible attempt to shape the legal issues to her perception of the human concerns. Those who disagree with her assessment of the human concerns may find her arguments less persuasive.

Reviewing two books on a similar topic makes one want to rate them relative to one another. Yet these two books are very difficult kinds of books that happen to address a similar topic. Surely one great pleasure of interdisciplinary work is to see how different minds, conditioned by different disciplines, approach a single topic. Reviews might be more useful if they help such books find their audience rather than try to compare them: like one's own children, they are each loved for their unique qualities. Field's book will be of great help to the many college and university students and other nonlawyers interested in understanding how legal concepts can apply to surrogacy. In addition, the book should give considerable guidance to legislators and other policy makers, many of them lawyers, by helping them to understand the implications of various policy options with regard to surrogacy. Rothman's book, although it does attend to policy questions, including specific suggestions, is less "practical." Instead, it asks us to take this opportunity to start over again by posing the query: Exactly what is the nature and importance of relationships between mothers, fathers, fetuses, infants, caregivers, and society? Before we move to policy, she urges us to consider a much richer understanding of the lives those policies will shape. It is advice worth taking.

Judith Wilson Ross is associate director of UCLA Medical Center's Program in Medical Ethics, and associate at the Center for Bioethics, St. Joseph Health System, Orange, CA.
COPYRIGHT 1990 Hastings Center
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1990 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Ross, Judith Wilson
Publication:The Hastings Center Report
Article Type:Book Review
Date:Sep 1, 1990
Previous Article:Recreating Motherhood: Ideology and Technology in Patriarchal Society.
Next Article:Health care executives and medical ethics.

Terms of use | Copyright © 2017 Farlex, Inc. | Feedback | For webmasters