An Examination of the Issues and Ethics of Commercial Gestational Surrogacy Elisabeth Schlaudt, Student, Furman University
to the child…(and) the gametes of both commissioning parents are used.”1 For the purpose of this paper, any reference to surrogacy from here on will refer to paid “full surrogacy” as defined by the ESHRE Task Force on Ethics and Law 10.2
INTRODUCTION In this paper I will thoroughly discuss the controversies surrounding commercial gestational surrogacy from the standpoint of traditional moral theories and Care Ethics. I will then explain what I believe to be the best approach to the issue based on the Care Ethics view of self. In section 1, I will provide a definition for commercial gestational surrogacy. In section 2, I will provide arguments for the two opposing positions surrounding the topic, Pro- and Anti-commercial gestational surrogacy. In section 3, I will explain how Kantianism and Care Ethics view commercial gestational surrogacy and whether either of these theories provides a solution to the issue. In section 4, I will explain how the practice of commercial gestational surrogacy can function morally through focusing on Care Ethics.
SECTION 2: PRO-SURROGACY VERSUS ANTI-SURROGACY POSITIONS The positions I am outlining in these sections are polar opposites, yet the values and “rights” for which they argue are exactly the same. Each side claims their position is the one that truly supports women’s rights, the child’s best interest, and prevents the intrusion of the “public” realm into private life. Prosurrogacy bases much of its arguments on a “preservation of autonomy” platform. Antisurrogacy takes a more paternalist “greater good” approach. Since the United States still has no national level legislation, the few states that have made the effort to establish legislation (e.g., California and New York) form their legislation based on one of these two positions. Many states, though, refuse to touch such a controversial topic and instead have left it to the courts to decide whether such surrogacy should be permitted. Because of the lack of a nationwide consensus, the topic of surrogacy has become increasingly complicated, as the issue has been allowed to be brushed under the rug instead of being confronted and decided upon. This difference between Anti- and Prosurrogacy approaches is particularly evident in how each side views the preservation of
SECTION 1: COMMERCIAL GESTATIONAL SURROGACY AND THE SURROUNDING CONTROVERSIES Surrogacy has become exponentially more complex as a result of the medical advancements within the last thirty years; a couple can now commission a woman to carry a child created with Mendelian techniques from the gametes of strangers genetically related to the couple, surrogate, or even two unrelated strangers. That is why I will only be addressing commercial gestational surrogacy, or paid “full surrogacy,” in which “the gestating woman has no genetic link 64