Necessary Restrictions? I don’t think so.

a title=A recent commentary href=http://vitals.nbcnews.com/_news/2013/03/06/17213836-10000-to-abort-surrogacy-case-reveals-moral-holes-bioethicist-says?liteA commentary/a by Art Caplan alerted me to the recent case of a “surrogate” offered $10,000 to abort the fetus she was carrying, “Baby S. After meeting with a couple through an agency, Surrogacy International, Crystal Kelley signed on to gestate their frozen embryos, one of which survived. Unfortunately, at five months, a sonogram showed that the fetus had serious abnormalities, abnormalities that led the contracting couple to ask Kelley to terminate the pregnancy, as their contract specified—although it included no details about what abnormalities could trigger that clause. Kelley initially refused, even though she was notified that the contracting couple was unwilling to assume legal responsibility for the resulting child. She was then offered $10,000 to abort the pregnancy. Although Kelley was opposed to abortion, she made a counter-offer for $15,000. The contracting couple refused, but by then Kelley had apparently decided that she would not have an abortion no matter what.  The contracting couple responded that they would take legal custody of the child, then abandon her to the state of Connecticut. In response, Kelley fled to Michigan, where she would be recognized as the child’s mother when it was born, and where she could get topnotch care for it. Because Kelley recognized that her circumstances precluded her caring for the child herself, she sought—and found—a family eager to nurture such a child. In the meantime, the contracting couple took steps to be named legal parents. In the end, the man relinquished his legal standing in exchange for the couple’s right to some social connection with the child.

What a mess.

All things considered, given the facts of the case, this outcome was about as good as could be hoped for. Certainly, Art Caplan is right that, despite the contract she signed, Kelley should not have been forced to abort. (More on that in a minute.)

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Yes, society needs to acknowledge women’s ultimate right to control their own bodies, ieven /iwhen they are pregnant. (You wouldn’t think that proviso would be necessary, but it appears that despite many years of feminist argumentation about this issue, women are still routinely deprived of such control). But does it follow that no surrogacy contract should raise the possibility of abortion? Caplan’s stand seems to ignore the fact that a woman ready to undertake contract pregnancy might well have no objection to an abortion that she believes is justifiable. And, some women believe that abortion to prevent probable suffering on the part of the child that would otherwise be born would be justifiable. Ignoring these facts deprives women of their full status as autonomous decision-makers, and fails to recognize the diversity of values—legitimate values—they hold. Under those conditions, paying a woman to go forward with an abortion is, in my view, neither bribery nor crass manipulation.

The failure in the Baby S case to pay attention to these issues was a disaster waiting to happen.  But that’s where Caplan’s concluding point is critical: “we need tighter control over those in the commercial surrogacy broker business. . . . The free market—complete with its shady middlemen and lawyers—is not up to the task of deciding how best to use that technology.” For sure. Only non-profit organizations—whose employees are salaried, not fee for service—should be licensed to handle contract pregnancies. They should be highly regulated, and all parties should have relevant psychological testing (and not ignored, as in the Baby M case); their attitudes about such matters as abortion should be probed and documented. Only such care could have ensured that Kelley and her contracting parents would never have been considered for each other. Murphy’s law being what it is, nothing could guarantee that problems would never arise. But this approach would surely lessen both their frequency and severity.br
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About Laura Purdy

Laura Purdy is a bioethicist, feminist philosopher, and Emeritus Professor of Philosophy at Wells College, where she served on the faculty for more than three decades. She has served on the Editorial Boards of Hypatia and of Bioethics and has been an active member of FAB for many years. She is the author of six books including Feminist Perspectives in Medical Ethics [co-edited with Helen B. Holmes], Reproducing Persons, and In Their Best Interest? The Case against Equal Rights for Children.

Comments

Necessary Restrictions? I don’t think so. — 4 Comments

  1. Hi Laura,

    Great inauguration of the blog!

    This is an interesting commentary on Caplan. I think I would agree, if the stand were based on the idea that there’s something special about abortion–if he were saying “no one should ever contract to that.” But I wonder if it might be based in something else. More broadly, I don’t think any contractual obligation to undergo a medical procedure should be valid. (I think I want to make the claim that broad–the counterexample I can think of right now may be drug-testing as a requirement of employment governed by a contract, and I don’t much like that either.) Any patient should be free to change their mind about any medical procedure at any point in time.

    I’m reflecting on how much my thinking here could be based on commodification concerns, how much it could be based on a view that surrogacy contracts are fine but should be maximally surrogate-centred, and how much based on traditional medical ethics–that the physician doing the procedure should be concerned with the patient’s free and informed consent. As a general practice–which is what law and policy have to cover, after all, not ideal cases–some women will be happily and freely fulfilling the terms of the contract, and some will not. So some physicians engaged in the practice will be performing medical procedures on unwilling patients who simply cannot afford the legal penalty of breaking the contract.

    Lynette

    • Hi Lynette, and thanks!

      My guess is that none of us do wish to see any medical procedure on unconsenting, competent individuals, not just abortions. I’m not ready to make that an absolute, however. What about Typhoid Mary sorts of situations? But, where it is done, there should be serious legal protections requiring that the probable harm be demonstrated, and the invasions minimally intrusive.

      I also agree that “surrogacy” contracts should be most focused on protecting the contracting women’s autonomy and welfare. To achieve this, I believe that model contracts, or at least model provisions need to be developed, to attempt to safeguard the rights of the more vulnerable parties. Calling for regulation isn’t enough–look at the new regulations in India: much as regulation was needed, the ones adopted privilege traditional social views and fail to protect the women carrying pregnancies. I don’t believe that any model contract should require an abortion, but I do think that the probability of parties finding themselves in that position would be hugely reduced by the measures suggested (non-profit clinics, salaried staff, and in-depth analysis of parties’ attitudes and values). No practice of contract pregnancy could completely preclude bad outcomes, but then the same could be said of pretty much any other human endeavor, including ones whose acceptability we take for granted.

  2. Induced abortion has a long history and has been facilitated by various methods including herbal abortifacients, the use of sharpened tools, physical trauma, and other traditional methods. Contemporary medicine utilizes medications and surgical procedures to induce abortion. The legality, prevalence, cultural and religious status of abortion vary substantially around the world. Its legality can depend on specific conditions such as incest, rape, fetal defects, a high risk of disability, socioeconomic factors or the mother’s health being at risk. ,*..*

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