© 2001  Karen Selick
 Babysitting the Preborn
An edited version of this article first appeared in the September, 2001 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.

 Babysitting the Preborn

What would happen if the government passed a law saying babysitters and day care centres couldn’t charge fees for looking after children?

Immediately, the supply of babysitters and child care providers would dry up.  There might still be some grandparents, or maybe the odd aunt or uncle, who could be pressed into service.  Neighbours might occasionally agree to trade babysitting services in kind.  But vast numbers of parents would find it impossible to secure competent, trustworthy child care if they weren’t permitted to pay the caregiver.  A stranger who volunteered to provide such services for free would immediately be regarded with suspicion as a potential sexual abuser or kidnapper.  

Of course, no government would ever be foolish enough to propose such a law.  Parents would march in the streets to protest such senseless, counterproductive interference with their affairs. 

Yet nobody seems to have raised an eyebrow when the federal government proposed a similar form of intrusion into people’s affairs by way of its draft bill called the  Assisted Human Reproduction Act.  The only reason I can think of is that not many people are affected.

While a ban on cloning has been the major headline-grabber arising from the draft bill, another important feature is a proposed ban on commercial surrogacy arrangements.  Altruistic surrogacy, in which a woman agrees to carry a fetus for another person without pay, will be allowed.  However, commercial surrogacy will subject perpetrators to a fine of $500,000 and up to ten years in jail. 

You will still be permitted, if you choose, to place your newborn child in the care of a paid caregiver from the moment the infant is released from the hospital.  But if you try to hire someone to care for your preborn baby, you’ll be a criminal.  Frankly, I don’t get it.

I view a surrogacy agreement as simply a babysitting service for a preborn child.  There’s no difference in principle from "normal" babysitting.  The only thing that’s significantly different is that the child’s stage of development requires it to be carried around inside the caregiver’s uterus rather than in her arms, a Snugli, or a stroller.

Health Canada’s official explanation for the ban is that commercial surrogacy "treats children as objects."  What nonsense.  I had occasion, several years ago, to help draft an actual commercial surrogacy agreement.  It contained page after page of dos and don’ts for the surrogate to follow to ensure the health, safety and privacy of the baby-to-be.  There’s no way it could have been mistaken for a bill of sale for a toaster. 

Besides, since Health Canada considers altruistic surrogacy okay, the sole distinguishing feature making commercial surrogacy a heinous crime must be the money.  But if remunerating someone for taking care of children is tantamount to treating children as objects, then why don’t we outlaw payments not only to babysitters and day care centres, but also to camp counsellors, teachers and nurses?  Aren’t we treating children like objects when we pay these people to look after our kids? 

Health Canada’s other reason for the ban is that "some women could be vulnerable to exploitation if commercial surrogacy was [sic] allowed."   Funny, I never consider myself to be exploited when a client pays me for performing legal services, but I would feel sorely imposed upon if the Law Society adopted rules requiring me to provide mandatory pro bono services. 

Furthermore, the very notion that today’s women need protection from exploitation is so patronizing and antiquated that Health Canada should be embarrassed to endorse it.

Then there are those who worry about the emotional and legal complications of surrogacy.  They point to the famous Baby M case in which the surrogate became emotionally attached to the baby and tried to keep her. 

But consider: we never worry that our post-birth babysitters will try to claim custody of our children.  There’s every danger of them becoming emotionally attached to their tiny charges.  The ministrations they provide—feeding, diapering, bathing, comforting, story-telling—can be just as inspiring of intimacy as the act of carrying a child in your body.  We certainly expect fathers to bond with their offspring through activities like these, even though they don’t gestate the child.

Yet parents of born children don’t take precautions to prevent their babysitters from developing a fond relationship with their kids.  In fact, they try to select care-givers who will be warm and loving.  No-one deliberately hires a babysitter who is cold and detached.  Parents feel safe choosing a loving babysitter because they know that both the law and prevailing social attitudes would deem it outlandish for the babysitter to assert any permanent claim to the child.

The same comfort would exist for preborn children if parents knew that the law would stand behind them in enforcing their surrogacy agreements.  Criminalizing these agreements, or making them unenforceable, is exactly the wrong thing to do.  Just as outlawing paid day care would bring mostly perverts and weirdoes into the field, outlawing paid surrogacy ensures that few who could be trusted to abide by the contract will make themselves available. 

Money is simply a medium of exchange.  It’s time we stopped treating it as the root of all evil. 


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March 2, 2003