Marek Vácha2012

Mary Beth Whitehead entered into a contract with William Stern in which she agreed to be artificially inseminated with Stern's sperm.

At the time, Mary Beth was married to Richard Whitehead, with whom she had two children.

In the Surrogate Parenting Agreement Mary Beth agreed that after the baby was born she would relinquish the baby to Stern and his wife Elizabeth and would permit the termination of her parental rights so that the Sterns could adopt the baby.

In return the Sterns would pay Whitehead the sum of $10,000, plus expenses.

 the Sterns decided not to have Elizabeth bear a child due to the possibility that being pregnant would exacerbate her multiple sclerosis.

The child, born on March 27, 1986—named Sarah by Mrs. Whitehead, and Melissa by the Sterns—was genetically related to Mrs. Whitehead and Mr. Stern.

Under the Surrogate Parenting Agreement, Mary Beth was not entitled to payment of her $10,000 fee until after the child was born, surrendered to the Sterns, and her parental rights had been terminated.

The contract also provided that the Whiteheads would receive no compensation if the child was miscarried prior to the fifth month of pregnancy and would receive only $1,000 if the child was miscarried after that time. Additionally, Whitehead renounced her right to have an abortion, unless it was medically necessary.

Whitehead gave birth to a baby girl named Melissa on March 27, 1986. She turned custody of the child over to the Sterns on March 30, 1986, but immediately regretted doing so. Alarmed by Whitehead's anxieties and fearing that she might commit suicide, the Sterns allowed her to have temporary custody of the child.

William Stern holds his daughter, then known as Baby M, after her visit with her birth mother, Mary Beth Whitehead, in Hackensack, N.J., in this Jan. 16, 1987

The trial court issued a Temporary Restraining Order and an order requiring the Whiteheads to surrender Melissa to William Stern.

The Whiteheads refused to surrender the child, instead removing her from the state of New Jersey and taking her to Florida. While in Florida, Mary Beth Whitehead threatened to kill the child if Stern did not drop his case to enforce the surrogacy contract.

Melissa was later recovered by law enforcement officials in Florida and returned to New Jersey, where the Sterns assumed custody under the New Jersey court order.

Ultimately, the trial judge declared the surrogacy contract valid and enforceable, awarded custody of Melissa to William and Elizabeth Stern, and terminated Mary Beth White-head's parental rights, although the judge permitted Mary Beth limited visitation rights pending her direct appeal to the New Jersey Supreme Court.

The New Jersey Supreme Court affirmed in part, reversed in part, and remanded the case to the trial court for further proceedings.

 The Supreme Court ordered that custody of Melissa be awarded to William and Elizabeth Stern. The New Jersey Supreme Court also ordered the trial court, on remand, to award Mary Beth Whitehead visitation rights as the trial court deemed appropriate.

Following remand and after conducting a further hearing, the trial court granted Mary Beth Whitehead unsupervised, uninterrupted, liberal visitation with Melissa.

When "Baby M" (Melissa Stern) reached age 18, she went to court to terminate Mary Beth Whitehead's maternal rights and to formalize Elizabeth Stern's parenthood through adoption...

http://www.kylewood.com/familylaw/babym.htm http://www.reproductivelawyer.com/press_babym.cfm

Surrogate MothersCombination of Gamets

1. those of the husband and wife

2. husband´s sperm and a donated egg

3. the wife´s egg and donated sperm

4. donated sperm and donated eggs from a woman other than surrogate mother

5. the surrogate mother´s egg inseminated by the husband´s sperm

6. the surrogate mother´s egg inseminated by donated sperm

Surrogate MothersCombination of Gamets

1. those of the husband and wife

2. husband´s sperm and a donated egg

3. the wife´s egg and donated sperm

4. donated sperm and donated eggs from a woman other than surrogate mother

5. the surrogate mother´s egg inseminated by the husband´s sperm

6. the surrogate mother´s egg inseminated by donated sperm

gestational surrogacy

traditional surrogacy

Gestational Surrogacy

the wife can produce eggs of her own but has one or more fertility problems a malformed or absent uterus a medical condition that would make

pregnancy dangerous severe hypertension, diabetes or lupus

a condition that would endanger the fetus, such as phenylketonuria

USA

1987 10 000 $ for the surrogate mother 10 000 $ for the lawyer 5 000 $ for the medical expenses involved and

for the maternity clothes 1994

$ 42 000 The couple´s joint annual income

exceeded $ 100 000 , whereas the surrogate´s annual income was $ 8 000

Arguments for/against surrogacy

of the estimated four thousand children born to surrogates from the late 1970s to the early 1990s, only twelve surrogacy-related cases have been filled in American courts

Dorff, E.N., (2003) Matters of Life and Death. A Jewish Approach to Modern Medical Ethics. The Jewish Publication Society, Philadelphia, PA, p.59

Arguments for surrogacy

it enables infertile couples to have children with the gamets of at least one of them

Arguments for surrogacy

Surrogate mothers are not generally black and poor the typical surrogate mother was twenty-eight

years old, married with children, employed full-time, and had thirteen years of education. Her husband was supportive of her decision to serve as a surrogate. Most were Caucasian, middle-range in income bracket, in good health, and had positive experiences in past pregnancies. While money was a factor in choosing to become a surrogate, it rated consistently lower than the desire to help another couple. (Rabbi Spitz, 1996)

Arguments against surrogacy

surrogacy will accentuate the social and economic differences between relatively rich couple and lawyer as against the relatively poor surrogate mother argument of „inherent slavery“

surrogacy widens the gap between the races and classes „in a womb/pregnancy market“ only the rich will be able to pass down their

genes in this way

Arguments against surrogacy

a feminist approach: since surrogacy contracts typically limit a

woman´s sexual activity after insemination, govern the drugs and foods she can consume, and have attempted in some cases to remove her option of abortion, surrogacy verges on the enslavement of women (Carole Patman)

Arguments against surrogacy

And so some see paid surrogacy as akin to prostitution in which a woman sells (or rents) her body to a client willing to pay for it. Reproductive organs are purchased by patrons of surrogacy just as sexual organs are purchased by patrons of prostitutes.

In both cases, women are being valued for--and frequently reduced to--biological capacity.

A related point voices concern about how paid surrogacy renders those women who are already economically marginalized even more vulnerable to coercion and manipulation by those with greater means.

http://www.surrogacy.com/religion/catholic.html

Arguments against surrogacy

prostitution is in some sense a degradation of oneself - in the same sense that prostitution is a degradation primarily because it entails the loveless surrender of one´s body to serve another´s lust, and only derivatively because the prostitute is paid.

it is also to deny the meaning of the bonds among sexuality, love and procreation

Kass, L.R., (2002) Life, Liberty and the Defense of Dignity. Encounter Book, New York, London. p. 101

Arguments against surrogacy

the buying and selling of human flesh and the dehumanized uses of the human body ought not to be encouraged.

Kass, L.R., (2002) Life, Liberty and the Defense of Dignity. Encounter Book, New York, London. p. 101

Arguments against surrogacy

in ovum surrogacy using the husband´s sperm (the most common type of surrogacy), the wife is being asked to raise a child who is genetically her husband´s but not hers - and one carried by another woman to boot.

Explanatory Memorandum by Mr Michael Hancock

Historical Situation The first historical reference to surrogacy arrangements

is in the Old Testament (Genesis 16 and 30). In Ancient Rome, arrangements of this kind were made in order to continue the lineage in spite of infertility and maternal and infant mortality[i].

In some African communities, an infertile woman may marry a fertile woman, who conceives a child with the infertile woman’s husband; the child is considered to be the child of the infertile woman. There are other possible approaches: conceiving a child by the brother of the infertile husband or the sister of the infertile wife, adoption, etc.…”in most parts of Africa, biological parenthood is deemphasized to the advantage of social parenthood”[ii]. Such practices are widespread in many other cultures[iii].

[i] Thomas, I. Histoire de la famille. Monde lointain. A. Burguière (ed.) 1986. 283-296

[ii] Giwa-Osagie O. Social and ethical aspects of assisted conception in anglophone sub-Saharan Africa . In Current practices and controversies in assisted reproduction. WHO, 2001. http://www.who.int/reproductive-health/infertility/report.pdf

[iii] Daniels K., The policy and practice of surrogacy in New Zealand. In Surrogate Motherhood- International perspectives. Hart Publishing. 2003. 55-73

Explanatory Memorandum by Mr Michael Hancock

After Birth

As a general rule, the parents remain in contact with the gestational mother after the birth of the baby by sending cards and photographs and/or getting together. In the most successful cases, “the perfect journey”, a very close and lasting relationship is formed, particularly between the two women[i].

The term “sister” or “friend” is often used to describe the new relationship created by the surrogacy arrangement: “For all participants, it was more than a simple business arrangement that would automatically terminate once the baby had been delivered to the commissioning parents”.

[i] Kleinpeter, et al. (2001). Satisfaction with surrogate mothering: A relational model. Journal of Human Behavior in the Social Environment, 4 (1), 61-84

Emotionally enriching experience

Overall, the gestational mothers found it to be an emotionally enriching experience without any negative effects on them or their families[i].

Gestational mothers may be more interested in the pregnancy – which allows them to attain their ideal self-image – than in the foetus itself: they may feel “stronger, solid and more confident than is their usual experience of themselves” . Comparing their own pregnancies with carrying a child for someone else, they are quick to acknowledge that the baby isn’t their own. Many refer specifically to the joy of being pregnant, saying that surrogacy allows them to be pregnant and to give birth without the responsibility of bringing up the child.

[i] Brazier M.et al. Surrogacy - Review for health ministers of current arrangements for payment and regulation. 1998

Explanatory Memorandum by Mr Michael Hancock Non-commercialisation The principle of non-commercialisation of the human body This principle complements the first and states that

agreements which treat the human body, its products or parts as financial assets are prohibited. However, in many countries, sperm and egg donation give rise to payment: “There should be no compensation to…donors for providing the oocytes. However, this does not exclude the reimbursement for expenses, time and risk which are associated with the donation” (IFFS international consensus on assisted procreation, 2001).

Similarly, as regards protocols relating to medical research with no direct benefit,

Recommendation R(90) 3 of the Committee of Ministers to the member States concerning medical research on human beings states that: ”expenses and any financial loss may be refunded and in appropriate cases a modest allowance may be given for any inconvenience inherent in the medical research”.

Explanatory Memorandum by Mr Michael Hancock Traditional Family is a Myth …this is part of the reason why it has been

more readily accepted than surrogacy arrangements. However, births outside marriage, reconstituted families, single-parent families, adoptive families and same-sex parenting have created a host of alternatives, and the traditional family is now just one of many forms of family. In this context, surrogacy arrangements may be seen as just another means of starting a family. The “family” argument used against surrogacy arrangements is ill-founded, unless one wishes to condemn everything which falls outside the parameters of the traditional family.

Explanatory Memorandum by Mr Michael Hancock Casuistry

One of the chief motivations for gestational mothers is to build a strong relationship with the couple[i]:

"I personally didn't want to reduce my chances of a great relationship based on money alone.[…] my numbers were in the average range (20k), but I was willing to settle at $3500 […] because my IP's lived so close AND because they are such wonderful people ! I personally don't want this to be all about numbers".

[i] http://www.surromomsonline.com/support/showthread.php?t=47626&page=2&pp=20

Ethical Concerns

what the payment is for? is it for „the apparatus“ for nine months, or for the

baby? if it is for the baby, then we have gotten into the

question of the legitimacy of selling humans what if the birth mother changes her mind? Kantians will probably find the whole practice

of surrogacy problematic since the birth mother is clearly being used as an incubator and not regarded as a rational factor but the women is simply using her body like any

manual laborer

A surrogate mother who changed her mind A surrogate mother who changed her mind about giving her baby to a couple will be about giving her baby to a couple will be allowed to keep her, a judge ruled yesterday.allowed to keep her, a judge ruled yesterday.After getting married in 2005, Mr and Mrs W After getting married in 2005, Mr and Mrs W were unable to have a baby following a series were unable to have a baby following a series of miscarriages.of miscarriages.The mother and the couple, known only as Mr The mother and the couple, known only as Mr and Mrs W, met over the internet in 2009 and and Mrs W, met over the internet in 2009 and made an informal agreement that a baby, made an informal agreement that a baby, fathered by Mr W, would be handed over once fathered by Mr W, would be handed over once born.born.During the pregnancy the surrogate mother During the pregnancy the surrogate mother changed her mind and refused to part with the changed her mind and refused to part with the baby when it was born last July.baby when it was born last July.Mr Justice Baker said the now six-month-old Mr Justice Baker said the now six-month-old baby, identified only as T, had bonded with her baby, identified only as T, had bonded with her mother. "In my judgment, there is a clear mother. "In my judgment, there is a clear attachment between mother and daughter," he attachment between mother and daughter," he said. "To remove her from her mother's care said. "To remove her from her mother's care would cause a measure of harm. It is the would cause a measure of harm. It is the mother who, I find, is better able to meet T's mother who, I find, is better able to meet T's needs, in particular her emotional needs."needs, in particular her emotional needs."

During the surrogate pregnancy relations between the trio deteriorated and During the surrogate pregnancy relations between the trio deteriorated and legal proceedings were launched a week after the birth. Although the judge legal proceedings were launched a week after the birth. Although the judge said he had "formed the clear impression" that all parties were devoted to the said he had "formed the clear impression" that all parties were devoted to the baby, he said it was also clear that the baby was "thriving in her mother's care."baby, he said it was also clear that the baby was "thriving in her mother's care."He added that there had been irresponsible behaviour on both sides, accusing He added that there had been irresponsible behaviour on both sides, accusing Mr and Mrs W of not telling the whole truth and the mother of adopting a false Mr and Mrs W of not telling the whole truth and the mother of adopting a false persona to elicit information from the couple, falsifying a document and lying to persona to elicit information from the couple, falsifying a document and lying to the court.the court.The couple had proposed to take over care of the baby immediately, which the The couple had proposed to take over care of the baby immediately, which the judge said showed a "startling lack of insight" of the child's needs.judge said showed a "startling lack of insight" of the child's needs.Speaking on the risks of entering into surrogacy agreements, the judge said Speaking on the risks of entering into surrogacy agreements, the judge said these were "very considerable."these were "very considerable.""In particular, the natural process of carrying and giving birth to a baby creates "In particular, the natural process of carrying and giving birth to a baby creates an attachment which may be so strong that the surrogate mother finds herself an attachment which may be so strong that the surrogate mother finds herself unable to give up the child," he said.unable to give up the child," he said.A further hearing is set for next month with an "interim visiting contact" between A further hearing is set for next month with an "interim visiting contact" between the natural father, Mr W, and the baby.the natural father, Mr W, and the baby.

prenatal sex selection

in almost all cases, males have been preferred.

for sex selection to have intercourse in the summertime (Aristotle) ligation testicles (the right one was believed to

contain the male-producing semen) eating certain foods mating in particular times in woman´s menstrual

cycle wearing boots to bed

(Gilbert, S.C., Tyler, A.L., Zackin, E.J., (2005) Bioethics and the New Embryology. Sinauer Associates, Inc. W.H. Freeman & comp. Sunderland, MA U.S.A. p. 96)

Sex Selection

the preference for sons stems from the patriarchal structure in which most social resonsibilities are carried out by males, including sons´traditional role of caring for parents during old age, and the culatural practice of providing a dowry to the new son-in-law at a daughter´s wedding

girls thus are a social and financial liability

in the world „misses“ 100 milions women44 milions in China37 milions in India

(Blackburn, S., (2001) Ethics. A Very Short Introduction. Oxford University Press, Oxford, p. 50)

A study based on 1,1 million Indian household in 1997 showed that although

numbers of boys and girls born were almost equal for the first child

759 girls were born per thousand boys for second childrenand only 719 girls per thousand boys for third children

this practice accounted for 10 million fewer indian girls being born over the last 20 years

(Mepham, B., (2008) Bioethics. An Introduction for the Biosciences. Oxford University Press, Oxford, p. 125)

India, 2011

http://www.bbc.co.uk/news/world-south-asia-13264301

In Bombay, a 1985 survey found that 96% of aborted female fetuses were aborted after amniocentesis revealed their sex

One study found that out of 8 000 reported abortions, 7 999 of them were of female fetuses

(Gilbert, S.C., Tyler, A.L., Zackin, E.J., (2005) Bioethics and the New Embryology. Sinauer Associates, Inc. W.H. Freeman & comp. Sunderland, MA U.S.A. p. 99)

2008: the indian government has developed a financial incentive program. It is offering to pay poor families nearly $ 3000 to have and raise daughters.

In regions with the worst female-male ratios, families will receive $ 385 when the girl is born and another $ 2500 when she turns 18, provided that she has completed her education and remains unmarried.

Pierce, J., Randels, G., (2010) Contemporary Bioethics. Oxford University Press, NY, Oxford. p. 363

Guang gun-er

In China, the young men are known as guang gun-er ("bare branch") because they represent "branches of the family tree that would never bear fruit because no marriage partner might be found for them"

studies have shown that the guang gun-er commit a disproportionately high fraction of the crime in their respective areas.

China

And the gender imbalance in provinces like Anhui, Hainan, Guangdong and Jiangxi is already quite without parallel in a modern society, with between 30 and 38 per cent more males than females.

Ferguson, N., (2011) Civilization. The West and the Rest. Allen Lane, Penguin Books. New York.

Sex selection and genetic counseling

„Your child will be female, which increases the risk of sexual abuse, domestic violoence and poverty.“

Great Britain, 2001

69% of interviewees though sex selection should be restricted in some way

80% thought that sex selection for nonmedical reasons shoud not be permitted at all.

(Gilbert, S.C., Tyler, A.L., Zackin, E.J., (2005) Bioethics and the New Embryology. Sinauer Associates, Inc. W.H. Freeman & comp. Sunderland, MA U.S.A. p. 101)

The Human Fertilisation and Embryology Authority is the UK's independent regulator overseeing the use of gametes and embryos in fertility treatment and research.

Saviour Siblings

notable cases in the UK were the applications to the HFEA from two set of parents (the Hashmi and Whitaker families) for permission to select embryos (=saviour siblings) to treat their existing children, who suffered from beta-thalassaemia and rare non-inherited disease Diamond-Blackfan anaemia respectively

in each case, the proposed strategy was to harvest stem cells from umbilical cord blood following the birth of the younger sibling,with the aim of using stem cells in a bone marrow transplant and subsequently curing the disease in the older child through the production of healthy blood cells

Saviour Siblings

The Hashmis were granted permission by the HFEA in 2001 to create and tissue-type embryos, because it was argued that the use of PGD would be in the interests of both the prospective child and its older sibling

by contrast, the application made to the HFEA in 2002 by Whitakers was refused, on the grounds that the unborn child should not be exposed to the hazards of PGD when there was no direct benefit to the younger sibling – because DBA is not inherited

Saviour Siblings

…consequently, the couple went to the USA to receive PGD treatment,resulting in the birth of a son in 2003.

following a subsequent House of Lords ruling, the HFEA granted a license for use of saviour sibling PGD in the case of the Fletcher family, whose son also suffered from DBA

preimplantation sex selection

Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and BiomedicineOviedo, 4.IV.1997

Article 14 – Non-selection of sex The use of techniques of medically

assisted procreation shall not be allowed for the purpose of choosing a future child's sex, except where serious hereditary sex-related disease is to be avoided.

PID is widely used to prevent the birth of sons in women known to be carriers for X-linked lethal or debilitating diseases.

For instance, a woman who is a carrier for the X-linked conditions hemophilia or musculrar dystrophy may not want to suffer through the "tentative pregnancy" associated with amniocentesis or chorionic villus sampling, and then have to decide whether or not to abort the male fetus should it prove to have the disease. Such women can instead undergo in vitro fertilization and have only XX embryos implanted; the female infants would be unaffected by X-linked diseases (although they have a 50% chance of being carriers)

(Gilbert, S.C., Tyler, A.L., Zackin, E.J., (2005) Bioethics and the New Embryology. Sinauer Associates, Inc. W.H. Freeman & comp. Sunderland, MA U.S.A. p. 95)

the American Medical Association has advised physicians that sex selection of this kind in the absence of any accompanying health problems is not something that physicians should do.

(Richards, J.E., Hawley, R.S., (2005) The Human Genome. A User´s Guide. 2nd ed. Elsevier Academic Press, Burlington, MA, USA, p.386)

UK

following a public consultation exercise in the UK, the HFEA announced in 2003 that it had decided to ban sex-selection for „family balancing“, although permitting it where a child of one sex would risk inheriting a serious genetic disorder

Another major issue is the perception that choosing one sex is rejecting the other.

What message does it send to a mother´s sons if she is willing to spend thousands of dollars just to ensure that she does not have another boy?

What message does a little girl get from parents who are searching for ways to make sure their next child is a son?

Sexism

sex selection is "the exercise of sexism at the most profound level, choosing who gets born, and which types of lives are acceptable." (The Human Genetics Alert Campaign)

Product selection

When we select s product at the grocery store, we do so because we expet it to have certain characteristics and be of certain wuality. Similarly, in choosing a child´s sex, we are expecting the child to conform to our preconceived ideas of how the particular sex behaves.

Researchers have reconstructed the genome of a fetus without touching it. Instead, they used both parents' genomes and free-floating fetal DNA, which circulates in the mother's blood.

The sequencing will provide information on what the child will be like and in some cases, what will happen during the teenage and adult years.

All it would take is a simple blood test. If parents don’t like the results, options

can include abortion or maybe genetic manipulation.

During pregnancy a small amount of fetal DNA enters the mother’s bloodstream. A blood sample is drawn from the woman’s arm and the fetal blood is extracted and the genetic structure sequenced.

This already is common in commercially available tests for specific diseases.

Currently, prenatal testing is diagnostic, restricted to cases where there is reason to suspect that a child might inherit a disease.

The results also could affect parenting. If, for instance, genes associated with

intelligence could be located and the parents know the child will not have the genetic variations associated with high IQ, would that affect how they raise the child or their expectations?

What if genes for athletic ability were discovered but a fetus lacked favorable versions of those genes? Would parents who want an athletic child be disappointed or even terminate the pregnancy?

the question of privacy

What happens when the privacy of the parents clashes with the privacy of the person yet to be born?

What if the genome says the person will suffer a terrible disease later in life? What if they are carriers of genetic disease?

Don’t the offspring have a right not to know if they chose?

the technology could (1) change the norms and expectations of

pregnancy in ways that complicate parental autonomy and informed decision-making,

(2) exacerbate the deleterious role that genetic determinism plays in child rearing, and

(3) undermine children’s future autonomy by removing the option of not knowing their genetic information without appropriate justification.

http://www.thehastingscenter.org/Publications/HCR/Detail.aspx?id=5909