© 2001 Karen Selick
Free Trade for Surrogate mothers

An edited version of this article first appeared in the September 4, 2001 issue of The National Post.  If you wish to reproduce this article,click here for copyright info.

Free Trade for Surrogate mothers

Should Canadian women be allowed to offer their services as paid surrogate mothers?  

Dr. Keith Martin, a Canadian Alliance MP from British Columbia, has stirred up a hornet’s nest with recent comments on the subject.  "If a woman wants to rent out her uterus for a fee, let her," he says.  "Government should butt out."

Unfortunately, the federal government has no intention of butting out.  On the contrary, it intends to introduce legislation (the Assisted Human Reproduction Act) within the next few months which would subject anyone involved in arranging a commercial surrogacy agreement to fines of $500,000 and up to ten years in prison.

Some of the opposition to surrogacy appears to derive from religious convictions against any kind of tampering with human reproductive processes.  There’s little one can say in answer to opponents in this camp except to point out that there are undoubtedly believers on the opposite side of the issue who are equally convinced that God agrees with them.

Meanwhile, most anti-surrogacy sentiment revolves around money.  In fact, the draft bill will actually allow what the government calls "altruistic surrogacy", in which no money changes hands except for the surrogate’s out-of-pocket expenses—for instance, where a woman volunteers to gestate a fetus for friends or relatives.  Only commercial surrogacy, where the surrogate makes a profit from her pregnancy, is to be outlawed.  

Why the distinction?  According to Health Canada, adding remuneration to a surrogacy agreement "treats children as objects".  A variation of this argument was made by bioethicist Juliet Guichon, writing recently in The Globe and Mail, who alleged, "When contract law is used, children are commodified."
But couples who pay for commercial surrogacy services aren’t buying a baby.  They’re compensating the surrogate for her time, effort and pains in helping them look after their preborn child.  The surrogate’s services are no different in any morally significant way from babysitting services that parents might hire to help look after a newborn.  It’s only the baby’s requirements that are different, by virtue of its stage of development.  Instead of being cradled in the caregiver’s arms, it must be cradled in her womb.  The surrogate simply provides care appropriate to the child’s age and needs, just as any good babysitter would.  

If paying for care rendered to preborn children is tantamount to treating children as commodities, what makes birth the magic line at which "commodification" ceases?  Shouldn’t we also make it illegal for parents to hire paid babysitters for newborns?  Should contracts with nurses, doctors, teachers, social workers, camp counsellors and anyone else who looks after children for pay also be outlawed as an affront to the humanity of the nation’s youth?

Lawyers who handle child custody cases seek on behalf of their clients physical possession of children whom the lawyers themselves will usually never meet.  In fact, professionalism dictates that it is wisest for lawyers to remain emotionally aloof from both parents and children.  If ever there were a system more in danger of treating children as objects, this is it.  Should we make it illegal for custody lawyers to charge for their services?

There will always be the occasional headline-grabbing case of a surrogacy agreement gone bad—a situation where one of the parties tries to renege on some aspect of the agreement.  But these cases make news precisely because they are the exception rather than the rule.  They are no more an argument against surrogacy than the occasional case of infanticide or abandonment by a mother who gave birth in the normal way is an argument against motherhood.  Besides, altruistic surrogacy agreements—the kind the government approves of—are not immune from complications of this kind.  

I had the privilege, a few years ago, of assisting in negotiating a commercial surrogacy agreement.  We wrote in clause after clause of instructions for the surrogate to follow to ensure the health, safety and privacy of the future tiny human being.  Both the surrogate and the commissioning parents conducted themselves with dignity and sensitivity. Any suggestion that they thought of the child as an inanimate object is simply incorrect—and insulting to these decent, thoughtful individuals.  Why should people like this be made to suffer on the mere off-chance that others may act less responsibly than themselves?

The latest surrogacy furor stems from reports that American couples are flocking to hire Canadian surrogates because their prenatal health care costs are "free" under Canada’s health insurance system.  As a taxpayer, I dislike providing this subsidy.  However, this millstone is hung round my neck not by commercial surrogacy, but by socialized medicine. I equally dislike paying the medical expenses of racing car drivers, professional athletes, or anyone else whose business activities may involve extraordinary health care costs—not to mention smokers, alcoholics and obese people.  The long-run solution is to abolish socialized medicine.  

However, the short-run solution is simply to remove obstetric and other prenatal care from the list of services covered by government health insurance when the woman is a paid surrogate, just as most provinces deny coverage for laser eye surgery and other optional procedures.  Canadian surrogates would then have to tack on the cost of health care when they negotiate their contracts with biological parents, just as American surrogates do.  End of problem—and we won’t have to throw the baby out with the bath-water, if you’ll pardon the expression.  

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March 3, 2003