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Don't let market forces govern human procreation

22 November 2010
By Dr Juliet Guichon
Juliet Guichon is Senior Associate in the Office of Medical Bioethics, Faculty of Medicine, University of Calgary
Appeared in BioNews 585
Canada's National Post reported last month that two British Columbians who had hired a 'surrogate ' mother, changed their minds and wanted the woman to abort (1). The fetus apparently had Down's syndrome. The pregnant woman resisted abortion but then acquiesced.

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.

01) Tom Blackwell, Couple urged surrogate to abort fetus due to defect
National Post |  6 October 2010
02) John Kenneth Galbraith, The New Industrial State
Boston: Houghton-Mifflin |  1967
03) John A. Robertson, Surrogate Mother: Not So Novel After All
Hastings Centre Report 13, 28 |  1 October 1983
04) Anna J. v. Mark C.
National Law Journal at 37 (Cal. Sup. Ct. Orange Country 1990) |  5 November 1990
05) Quoted by Blackwell, supra, note 1
|  17 October 2021
06) Michael J. Trebilcock, The Limits of Freedom of Contract; R.A. Posner, Sex and Reason
Cambridge: Harvard University Press, 1993; Cambridge, Mass: Harvard University Press 1992 |  17 October 2021
07) Elizabeth Anderson, The Ethical Limitations of the Market 6, 179
Economics and Philosophy |  1990
08) Rhoads as quoted by Blackwell, supra, note 1
|  17 October 2021
09) Larry Kahn, as quoted by Blackwell, supra, note 1
|  17 October 2021
10) As quoted by Blackwell, supra, note 1
|  17 October 2021
10 January 2011 - by Louisa Ghevaert 
International surrogacy has become big news. Last month, a landmark international commercial surrogacy case, Re L, attracted front page national headlines. Hard on its heels the media spotlight fell on the birth of Elton John and David Furnish's US surrogate born son, Zachary, on Christmas Day. This has fuelled the debate about surrogacy and the question is why has it generated such attention?...
11 October 2010 - by Nishat Hyder 
A couple from British Columbia, Canada, have been embroiled in a complex ethical battle after their surrogate refused their request to abort the fetus she was carrying. The couple made the request after tests revealed the baby would likely be born with Down's syndrome...
9 June 2010 - by Sarah Pritchard 
Data recently obtained by the Sunday Times newspaper, via a Freedom of Information Act enquiry to the UK's Human Fertilisation and Embryology Authority (HFEA), show that an average of 80 pregnancies achieved through IVF treatment are terminated each year....
7 February 2010 - by Dr Sophie Pryor 
The Court of Appeals in Indiana, US, is to decide who is the legal mother of an 11-month old baby boy conceived by IVF and born to a surrogate. The boy's genetic parents, known in court records as T.G. and V.G, are a married couple from northern Indiana. The birth mother is the wife's sister, who agreed to carry the baby for the couple. The boy's father's name is listed on his birth certificate but his mother's name will not be added unti...
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