This month France’s highest court granted legal recognition to children born to surrogates. Previously, surrogate children were deprived of any legal connection to their parents, or any civil status in France. They could not get ID cards or passports, or register for state health care or other benefits.
France’s policy was challenged in a case involving a couple that hired a surrogate in California (where surrogacy is legal), who gave birth to twins. In December 2008 the French high court issued a decision that upheld a lower court’s refusal to allow French birth certificates to be issued to the children, saying that French citizens cannot go abroad to circumvent French surrogacy laws. The new decision of the high court upholds the ban against surrogacy, but allows children born abroad through this practice to be legally tied to their parents and granted birth certificates and immediate means to prove their French citizenship.
The reaction of most people to the high court’s decision was, “What?! Children born to surrogate mothers were once denied civil status and state benefits in France? How does that make sense?” I think that is ultimately the right reaction, but the situation is a little more complicated than it first appears. It raises two different questions. First, should surrogate motherhood be illegal, and second, what provisions may a state take to ensure that the law is obeyed?
Interestingly, France bans not only commercial surrogate motherhood, but all surrogate motherhood, even when no money is exchanged. By contrast, in Canada, the U.K., and New York, to take just a few examples, only commercial surrogate motherhood is prohibited. As the arguments against commercial surrogate motherhood are stronger than the arguments against the altruistic kind, I will consider only these.
The arguments against commercial surrogate motherhood are 1) commodification, 2) the psychological effect on offspring, and 3) exploitation of the women serving as surrogates. The commodification argument is that surrogate motherhood makes babies into commodities; that it is, in effect, baby selling. The psychological concern is that for a child to learn that he or she was created by a surrogate arrangement might be extremely distressing, much more devastating than learning that he or she was adopted. An adopted child can be told, “Your mother loved you. She gave you up because she couldn’t take care of you, not because she didn’t want you.” By contrast, a child born from a commercial surrogate arrangement will realize that his biological mother deliberately created him in order to give him away – for the money. The exploitation argument refers to the imbalance in money, social class, and power between surrogates and adopting couples, suggesting that the contracts they sign, in which they give up rearing rights, might be less than fully voluntary.
I believe that all three arguments can be met. Payment to surrogates can reasonably be seen not as money to purchase a child, but as fair compensation to the gestating woman for her time, risk, and burden. On the compensation model, a surrogate would forego payment if she decided not to relinquish the baby, but if she had a stillbirth, she would receive full compensation (which she would not if the contracting couple were paying for a baby). The psychological effect can be mitigated if the child is told a different story about his or her birth: “Mommy and Daddy wanted so much to have a child, but we couldn’t, so this very kind lady helped us out by carrying you in her tummy for us. She took care of you before you were born, just as your sitters help us care for you now.” Exploitation can be avoided by ensuring that surrogates receive fair compensation and have independent legal advice when they sign contracts.
The French case reveals a strong pragmatic reason for regulating, rather than banning, surrogate motherhood: if you ban surrogate motherhood in one country, people may simply go abroad to countries or where it is legal. Of course, the mere fact that people flout laws is, by itself, no reason to abolish them. People continue to murder, rape, and assault others, but no one would suggest that we decriminalize these activities, because they are intolerable in any civilized society. I would suggest that surrogate motherhood is not like that. It is closer to other activities that some societies tolerate and regulate (such as drug and alcohol use), which others prohibit. The rationale for prohibition is a calculation that the harms of prohibition are outweighed by its benefits.
Reasonable people can disagree about this calculation. But even if a society decides that the harms and risks of surrogate motherhood are so great as to justify laws against it, it should differentiate between imposing civil and even criminal penalties on those who make such arrangements and denying civil status to the children who are born as a result. Once children arrive, regardless of the arrangements or technologies that created them, they must be equal under the law. France is entitled to ensure that its citizens don’t flout the law, but not at the expense of the fundamental rights of some of its children.
Denying civil status to children because they were born to surrogate mothers is as bad as denying them civil status because their parents are not married. Just as the terms “illegitimate” and “bastard” have gone out of use, so should discrimination on the basis of reproductive arrangements.
Bonnie Steinbock, a Hastings Center Fellow, is professor emeritus of philosophy at the University at Albany, State University of New York, and a professor of bioethics at Union Graduate College’s Center for Bioethics and Clinical Leadership.