Week 2 Post 2-Surrogacy

 The service of surrogacy, where a person volunteers their womb to give birth to a baby they will not care for or be a parent of, is controversial due to the consequences it has had in the real world, not so much because of the service itself, but because of problems that have arisen with people who do the service. These issues of specific conflicts, mostly surrogates not wanting to give up the baby has led to questioning over how ethical the practice itself is in principle. The framing of the ethicality of surrogacy is usually framed around two court cases where women who were surrogates decided they did not want to give up the babies they had. The first case is the "Baby M" case where a woman entered into a contract with a couple saying that she would have a traditional surrogacy, where semen would be implanted in her and a pregnancy would be carried to term, so she would the genetic mother of the child. The contract stipulated that she would be paid a certain amount and would terminate her parental rights after the baby was born, however after the baby was born she decided she wanted to keep the baby, and presented a bad mental state to the parents over this. She kept the baby against the parent's will and they sued her. The New Jersey Supreme court ruled that the contract they made to turn over maternity rights could not be upheld because the contract violated a statute against the selling of babies for adoption. However apart from citing a statute they also took an ethical stand point saying the traditional surrogacy contract was against public policy, or what society deemed ethical and acceptable. They argued that the surrogate was not given proper counseling and therefore could not make an informed decision to sign the contract, and that the amount offered to her was so high that it was undue inducement, that she could not turn down the offer. These arguments though were considered fixable, and so the court also stated that they believed that the principle of contracted surrogacy itself was in violation of public policy because they worried that surrogacy would become used by the rich for their gain at the expense of the poor's both mental and physical health, citing pregnancy risks and the surrogate in the case's declining mental health after she had to give up her child. The court's decision was ultimately about how selling surrogacy is unethical and so any contract that can be formed form it is invalid. Another court case Johnson v. Calvert however, took a different stance on selling surrogacy. In this case a woman entered into a contract with a couple saying she would become their gestational surrogate, meaning an embryo with the couple's DNA would be implanted in her and she would carry the baby but would not have any genetic relationship to the baby. She agreed to sign a contract where she would get paid in installments, and would give up any parental rights when the baby was born, however she decided she wanted all the money at a certain point and refused to give up parental rights if she was not paid, so the couple sued her, and she counter-sued to get declared the parent of the child. The California Supreme Court took a different approach to this case in regards to the background ethical statement they made, but also stated a statute to cement their decision. They stated a statute in California law that tied genetic motherhood to parental rights, and so they decided to not give the surrogate, who was purely the gestational mother any parental rights. Some people took issue with using this statute because it was created before IVF was invented, and solely gestational mothers did not exist, but the court said that law is meant to draw on past precedence for new situations. The underlying reasons the court argued that the surrogate should not get custody is intent, as the couple were always intended to be the parents and therefore would be the better parents, than the surrogate who decided on a whim to declare parental rights. They took the contract not as a binding legal agreement but evidence for both parties intent, and was also in turn making a claim about what they decided would make a better parent. The court also argued their point through a feminist lens, with some people saying the market of surrogacy dehumanized women and made them be seen as factories to produce a product instead of human, along with taking away the surrogates agency because the woman is unable to tell how she will feel about a child until she has it. The court in turn said that portraying women as too emotional or weak to make sound decisions about their bodies and actions is inherently treating them as unequal, and is wrong. Unlike the Baby M case, which argued about a board societal problem they thought would occur, this case put the power of decision into the hands of the people signing the contract. 

    These court cases, the arguments used for them, and their outcomes are important when discussing bioethics because it gives real world applications to ethical objections that may have come up around surrogacy. These cases also show precedent which is important when looking at the ethics of surrogacy. In terms of bioethics generally, understanding surrogacy and it objections is helpful to get an understanding of where society is at ethically in terms of somewhat common medical practices, to predict opinions or ethical arguments for future technologies, and applying them to those technologies.