Perhaps this case received so much media attention because it starkly pits an idealised vision of the practice of commercial 'surrogacy' against reality. This idealised vision is based on the view that technology, preconception intent and market-based demand for children combine to improve human procreation and thereby quality of life in society. But this British Columbia (BC) case reveals how those three notions fail, in practice, to operate in the best interests of the vulnerable.
Technology means the systematic application of scientific and other organised knowledge to practical tasks by their division into component parts (2). By reducing human procreation to component parts, technology causes sperm, egg and gestational capacity to become 'factors of reproduction' (3). The BC commissioning couple could purchase the missing factor of gestational ability, but contributing a factor to widget production is different from being pregnant, which involves the whole woman including her body and emotions.
When preconception intent is used to determine parenthood, a pregnant woman can become only a 'babysitter' (4). Commissioners also become entitled to interrupt the gestational process based on the presumed quality of the product - even though intentions about child rearing can alter before, during and after a pregnancy.
Preconception intent and genetic relatedness are used to claim that an embryo in another's body belongs to those commissioning. Discounted are the nine months of 24-hour days gestating and then labouring, delivering and lactating. As surrogacy broker Sally Rhoads said: 'The baby that's being carried is [the commissioners'] baby. It's usually their genetic offspring' (5). Market ideology makes technology and preconception intent more powerful. The market permits women to sell their gestational labour to the highest bidder and to permit those wishing to rear a child to pay to obtain one. Scholars argue this system is the best way to satisfy adult desires while maximising social welfare, and promoting autonomy and dignity (6). But where are autonomy and dignity when a pregnant woman is required to submit to highly-invasive gynaecological surgery she apparently doesn't want?
Market norms fail to govern human procreation ethically. As Elizabeth Anderson argued (7), there are four market norms. They include, first, impersonal relations. The goal of preconception arrangements is to create and maintain impersonal relations among all parties to the agreement and the fetus itself. Some agreements state the pregnant woman shall not bond with the fetus. Such terms implausibly require her to have an impersonal relationship with the fetus as it grows and moves inside her and to terminate the relationship almost immediately after birth.
The deal's structure also makes it difficult for the commissioners to have a personal relationship with the fetus. The fetus is unlikely to hear the commissioners' voices because of geographical distance. The commissioners are unlikely to be allowed to touch the woman's abdomen. Moreover the BC agreement also enabled the commissioners to refuse a personal relationship with their genetic offspring if born alive with Down's syndrome. But children have an interest in the love and care of their parents.
Anderson's second market norm is parties should have the ability to pursue their own advantage without consideration of others. This notion probably explains why the commissioners required the woman to abort a fetus they had hired her to carry. Under market norms, parties to a market transaction are expected to take care of themselves and not to depend on others to look after their own interests. As the broker asked: 'Why should the intended parents be forced to raise a child they didn't want? It's not fair' (8).
Anderson's third market assumption is the benefits of the 'good' should be limited exclusively to the purchaser. Denying the bodily participation of all three parties, the market claims only the commissioners are the child's true parents. In reality, the agreement makes them consumers or, at best, optional parents to their living child; as a Vancouver lawyer commented, agreements 'usually absolve the parents of responsibility when a defect is found and the surrogate refuses an abortion' (9).
The fourth market norm is parties' wants or desires are sufficient to justify their market participation if backed by the ability to pay. The market has no method of discriminating among the reasons people have for wanting things and aims to satisfy adult wants. Commissioners can and do remove themselves from transactions if their desires change. Ms. Rhoads said: 'In three other Canadian cases, surrogates are now raising the babies after the commissioning couples got divorced and backed out' (10).
Human procreation makes adults profoundly vulnerable and brings a needy and dependent human to life. This commercial 'surrogacy' case demonstrates how the ideologies of technology, preconception intent and the market exacerbate the vulnerability of adults and thwart the achievement of children's best interests.