Surrogate Motherhood: Ethics, Law, and Autonomy

Introduction to Surrogate Motherhood

Surrogate motherhood is sometimes referred to as womb renting, where a bodily service is offered in exchange for compensation or, in some cases, for free. Surrogacy is fraught with controversy and complexity due to its implications for women's health and human rights (Feldman, 2018). In American society, people are increasingly grappling with the issues raised by surrogacy. Surrogate mothers act as gestational carriers who carry a pregnancy to term after being implanted with an embryo (Abdullah, 2019). The surrogate mother has no legal claim to the child since she has no biological relationship with the child, and her name does not appear on the birth certificate.

There is no national law regulating surrogacy in the United States, and the fifty states have a patchwork of policies and laws attempting to govern the practice (Feldman, 2018). These laws range from outright bans to complete absence of regulation. The major ethical issue raised by surrogate motherhood is the transformation of a normal biological function of a woman's body into a commercial transaction. The rights of the child are rarely considered. When parenthood is transferred from the birthing mother to the contracting parents, the child is denied any claims to the gestational carrier — a problem that becomes more acute when the gestational carrier is also the egg donor.

Legal Landscape of Surrogacy in the United States

States such as Maryland, Massachusetts, Missouri, Alaska, Georgia, Idaho, Hawaii, Iowa, Kentucky, Minnesota, Montana, North Carolina, Oklahoma, and Pennsylvania have no laws governing surrogacy, yet courts in these states have generally favored surrogacy in their rulings (Abdullah, 2019). Surrogacy is permitted in most of these states provided the surrogate mother receives no compensation. Legal complications arise when the surrogate is compensated beyond pregnancy-related costs. Payment of intermediaries who recruit willing surrogates is also prohibited in many jurisdictions. According to Spivack (2010), the Arizona statute designates the surrogate mother as the legal mother of a child born through surrogate parentage and entitles her to the child's custody. Other states ban the enforcement of surrogacy contracts entirely, likewise making the surrogate the legal mother.

Arguments For Surrogacy: Altruism and Autonomy

Toledano and Zeiler (2017) support surrogate motherhood by framing it as an altruistic act through which a woman offers a profound gift to a couple struggling to have a child. In altruistic surrogate motherhood, no payment or commercialization is involved; the intended parents cover only the pregnancy-related costs and do not directly compensate the surrogate for carrying their child. The surrogate mother decides freely to assist couples who cannot conceive or who face complications with pregnancy (Toledano & Zeiler, 2017). Autonomy is the central ethical principle in this arrangement: the surrogate mother chooses to use her body based on her own informed and uncoerced decision. Most surrogate mothers opting for altruistic surrogacy do so to give intended parents the chance to have a child, and in many cases the surrogate and the intended parents already know each other, making the arrangement more personal and manageable (Toledano & Zeiler, 2017).

Payne (2018) extends the autonomy argument further, maintaining that a woman's right to self-determination should be the decisive factor in whether she becomes a surrogate. Autonomy is the right to determine what is appropriate for oneself based on one's own understanding and willingness. When a surrogate chooses this role voluntarily, prohibiting her from doing so infringes on her fundamental freedom. Although commercial surrogacy leads many observers to assume that women are coerced by third-party actors, Payne (2018) counters that many women choose surrogacy out of a genuine desire to help others. Denying surrogate mothers this opportunity on the grounds that they are being paid is paternalistic. The decision to become a surrogate is deeply personal, and only the surrogate mother herself can know with certainty whether her choice is truly willing.

Surrogate mothers may wish to assist a sister or a close friend, freely offering the use of their womb. The critical question is whether the woman herself determines her participation (Payne, 2018). Preserving the autonomy of the surrogate mother should therefore serve as the moral compass for evaluating the ethics of surrogacy. The Swedish Governmental Investigator has acknowledged the concern that women might become surrogates under pressure from family or friends rather than from genuine willingness (Payne, 2018); however, determining the true motivator is difficult, since surrogacy remains an intensely personal decision.