The Washington, DC, city council is currently considering the “Surrogacy Parenting Agreement of 2013,” or Bill 20-32, proposed by Councilman David Catania. The bill’s hearing showed how policy and law on reproductive technologies are crafted. Many of the testimonies on behalf of the bill were unsurprising, given current cultural conversations about marriage equality and reproductive freedom. Others, though, were extremely disturbing, especially those demanding that citizens have a “right to construct the families of their dreams.”
The repeated appeal to this idea from various constituencies—intended parents, law firms, and fertility clinicians—made it clear that a market and an ideology of designing-your-ideal-family is quickly emerging. It was also clear that collaborative reproduction does not serve the children produced under these arrangements, no matter the intentions or planning of the parents. The DC city council should take a pregnant pause before knowingly putting children in jeopardy.
Councilman Catania’s proposed bill would overturn DC’s status as the last place in the country that prohibits residents from entering into surrogacy contracts. A violation of the current law can be punished with a $10,000 fine and up to a year in prison.
Catania’s proposal would lift the burden for intended parents who cannot gestate a baby on their own but want to create children genetically related to at least one of the parents. He proposes that both gestational surrogacy, in which the surrogate carries the child, and traditional surrogacy, in which the surrogate contributes her egg and carries the child, should be permitted.
The bill is largely based on the premise that consenting adults, whether single, married, homosexual, heterosexual, fertile, or infertile, should be able to enter into a contract with a surrogate in DC in order to build the family they desire. Supporters of the bill argue that they are faced with an undue financial and emotional burden because they have to negotiate with surrogates who are not geographically proximate.
Catania did concede that if the bill is passed, parameters must be established to govern the agreements between the intended parents and the surrogate. But specific parameters were never spelled out. He only indicated that every contract would establish certainty about who was assigned legal parenthood of the child.
Yet Catania also acknowledged, as others have, that there are circumstances—divorce, the death of an intended parent, the desire of one or more parties for an abortion, or the failure of the surrogate to surrender the child at the time of birth—that can threaten a contract’s efficacy. During the hearing, a panel of witnesses who oppose the bill highlighted the problems with Catania’s assumption that establishing certain parties as legal parents will prevent future complications.
One of these testimonies came from Jennifer Lahl, founder and president of the Center for Bioethics and Culture Network, who noted that even Canada, a nation with progressive medical policies, has banned payment for surrogacy because of its negative consequences for children. In 2007, Canada’s Parliament passed the Assisted Human Reproduction Act (AHRA), which, in addition to banning paid surrogacy, prohibited the buying and selling of human eggs, sperm, zygotes, and fetal tissue. According to the Center for Bioethics and Culture Network, these strict parameters were necessary because “exchanges of this type would undermine respect for human life and dignity and lead to the commodification of women and children.”
Unlike its northern neighbor, the United States is increasingly becoming known in scientific and ethical circles as the “Wild West” of reproduction, with few limits placed on reproductive technologies that are aimed at designing our ideal children and families. The processes involved in surrogacy—using either in vitro fertilization or artificial insemination—are increasingly taking place in a booming market meant to cater to prospective parents’ wishes and preferences.
Egg and sperm markets involve a process of selecting gametes from thousands of applicants with varied genotypes, phenotypes, racial and ethnic backgrounds, educational levels, and resemblance to the intended parents. Once the embryos are produced, a process known as pre-implantation genetic diagnosis generally follows, which allows parents to choose which embryos to implant based on further preferences. Embryos are selected or discarded based on criteria ranging from freedom from genetically linked diseases to gender.
Some have argued that human cloning, considered the last frontier in assisted reproduction, would fit well into this American landscape, where everyone gets to design the family of his dreams. Others see the prospect of human cloning as intensely problematic. Wesley J. Smith recently argued that it is time for an official and binding ban on all human cloning. A parameter with that kind of finality is essential, he argues, now that scientists have successfully cloned a human embryo for stem cells.
Whether America will set any parameters on cloning, or on any other reproductive process, is uncertain. In Life, Liberty, and the Defense of Dignity: The Challenge for Bioethics, Leon Kass writes:
Cloning turns out to be the perfect embodiment of the ruling opinions of our age . . . Although most of us profess opposition to cloning, we don’t recognize or admit the degree to which cloned children would fit perfectly into the postmoral ambience in which we now live. Thanks to our belief that all children should be wanted children (the high-minded principle we use to justify contraception and abortion), sooner or later only those children who fulfill our wants will be fully acceptable. Through cloning, we can work our wants and wills on the very identity of our children, exercising control as never before.
Many supporters of surrogacy defend the practice based on the presumed good that the children produced are especially wanted. But the most personal testimony at the hearing against this kind of logic came from one of those children: a woman who is the product of collaborative reproduction.
Jessica Kern spoke about discovering, at age seventeen, that the woman who raised her was her adoptive mother. Her biological mother was the woman who gestated her and then surrendered her at the time of birth. She spoke about her many struggles: finding her biological mother after a nine-year search; meeting an extended family that she had never known; learning the source of some of her personality traits; uncovering a vital medical history that was previously unknown to her; and wrestling with the fact that her biological mother had chosen to raise her other children.
Kern noted that while these struggles are shared by children in adoptive families, unlike those children, she had to cope with the very real psychological distress that resulted from the facts that her genetic parents had nothing more than a contractual relationship, that money had been at the heart of her conception, and that she was deliberately conceived never to know one of her genetic parents.
Her testimony revealed that even though the contract established who her legal parents were, she also had a meaningful association with the woman who was genetically related to her and who had brought her into the world. The contract, which was meant to provide stability, instead ruptured a vital relationship that was key to her development and well-being. The adults involved in her conception failed to consider the possible long-term effects on the child who was produced from their arrangement.
What was most shocking and unexpected was Catania’s response to her testimony. After Kern had finished, he asked her, “But isn’t it better to be alive than not?” She was stunned into silence and visible devastation.
The councilman seemed to disregard her experience and struggle with unknowns and discoveries about her identity. He insinuated that a child need not know or ought not to care just how she came into existence, but instead should be thankful for the chance at life. Catania did acknowledge that the parameters for collaborative reproduction should take into account a child’s interests. But he closed his questions to Kern by saying, “Well, we all have crosses to bear.” With a single comment, he dismissed the most important point, which is that her disadvantages were completely preventable.
And Kern is far from alone. The Journal of Child Psychology and Psychiatry just published a study comparing the effects of children of surrogates with children conceived through other types of assisted reproductive technologies. The study concluded that children of surrogacy have a higher rate of adjustment difficulties by age seven than children conceived by sperm or egg donation, largely due to the gestational connection to their mother and to the secrecy that often surrounds their origin. The science of fetal development is showing that nine months in the womb play a vital role in a child’s long-term emotional and psychological development.
Given the testimonies against paid surrogacy contracts and the scientific evidence showing the importance of the gestational link between mother and child, the DC city council should think long and hard before passing this bill.
One of the bill’s advocates suggested that it’s time for DC to be more “pro-family.” Would anyone disagree? But the children are undoubtedly the most vulnerable members of this brave new family arrangement. We cannot presume that the best parental intentions can substitute for what children need when it comes to stability. It might take a village to raise a child, but perhaps we’ve jumped a few steps too far by encouraging a village to conceive one.
Elise Italiano teaches bioethics in Washington, DC, and is a contributor to Breaking Through: Catholic Women Speak for Themselves, edited by Helen Alvaré.