Parenting: the Bioethical Issue : Remove the profit motive to clarify the legal picture

Stunning advances in the technology of human reproduction are proving to be a mixed blessing. Medical science now can address the age-old problem of childlessness; with wise choices and proper counseling, surrogate parenthood has the potential to bring satisfaction to couples who in the past would have lived out their lives without children.

At the same time, scientific advances have led to situations like the Baby M case in New Jersey where agreements went awry, where lives changed or where the men and women involved expected different results from a pregnancy. Wondrous as this new ability to manipulate nature may be, it is still new enough to be capable of taking the participants and the society at large in unforeseen and disturbing directions.

The latest disturbing direction involves Orange County, where a surrogate mother, seven months pregnant, has sued to keep a baby she contracted to bear even though the fetus is entirely the product of the egg and sperm of a sponsoring couple.

This troubling case involves a surrogate, Anna Johnson, unhappy over the way she says she has been treated by the test-tube baby’s genetic parents, Mark and Cris Calvert, who claim to have willingly met their obligations.


While the courts have yet to decide this case, it already teaches at least one important lesson: Surrogateship for money can be a legal nightmare, beginning with the decision to rent out a womb. Johnson, charged in July with fraud for continuing to accept welfare benefits while working as a nurse, fits a classic profile of a single mother whose poverty influenced her decision to become a surrogate.

From the often super-rational perspective of the law, a California judge might easily apply a standard here similar to the one that prevailed in the Baby M case. The contract could be thrown out because it amounted to baby-selling, followed by some Solomon-like decision about custody and visitation rights, with due consideration being given to whether the surrogate somehow had a lesser claim because she did not provide the egg.

Where would that leave society in human terms, those of considering the expectations of a poor mother and a hopeful couple? It seems absolutely inhuman to weigh the case solely in contractual terms when lives and the future of a family are at stake. But society’s dilemma is that unless it can screen the participants and outline responsibilities beforehand, it inevitably will have to watch a judge deal with the results with the only legal tools at hand when something goes wrong.

What if a surrogate, succumbing to life’s anxieties, develops a substance-abuse problem during pregnancy? Can the sponsors then compel an abortion to prevent a damaged baby from coming into the world? What if a surrogate decides that she does not want to carry the baby to term? Can the sponsors force her to give birth?


Judges can review these cases, but what society really is asking them to do is wrestle another of the genies of science to a fall. A number of states have tried to do this with legislation, California not among them. Writing rules to cover any contingency will be difficult, perhaps impossible.

There are no good answers. The best hope may be to find a legislative approach that would remove as much ambiguity and contention from these agreements as possible. Two important points:

1) Contracts involving a profit motive for the surrogate are full of risk. 2) Volunteers are a plentiful enough alternative to commercial ventures; indeed, many surrogate pregnancies are done this way. But even in these cases, arrangements among friends can result in unanticipated disagreements.

Only with careful provisions, adequate supervision and counseling can this promise of scientific advancement hope to produce satisfactory results in human lives.