A few days ago, I was asked what I thought
about Kristine
, a 61-year-old woman giving birth to her grandson. Ms Casey had acted
as a surrogate mother for the child of her daughter and son-in-law.

My gut reaction was that this was ethically
wrong. But was that reaction correct and could it be justified?

We must first ask is surrogate motherhood,
in general, ethically acceptable? I don’t believe it is for a wide variety of
reasons, including that it breaches children’s human rights regarding their
coming-into-being; it exploits poor women; and its international
commercialization has opened up dehumanizing scenarios, such as FedEx-ing
frozen embryos to “warehouses” of surrogates in developing countries .

But, as is so often true in trying to
decide on the ethics of human reproduction, especially regarding reproductive
technologies, there is no consensus. And I know from experience that, faced
with a sobbing woman unable to carry her and her husband’s child, who is
distraught that payment of surrogate mothers has been prohibited and says, “I
can’t believe you would disagree with our doing anything we can to have our
child,” it’s very difficult to say, “No, I don’t agree with you hiring a
surrogate mother.”

For the sake of exploring the issues, let’s
assume some surrogacy will continue to be allowed. What restrictions are
ethically required?

Our choice of words can affect our
assessment of the ethics, probably because they influence our emotions and
intuitions, which are validly taken into account in making ethical decisions.
Grandmother Casey is compellingly described as “altruistic” and “giving the
ultimate gift” to her daughter and her son-in-law.

But let’s change the situation slightly and
see if we make the same assessment of ethical acceptability. Here’s another
case on which I was consulted by the physician asked to carry out the
artificial insemination.

A young infertile man and his wife want to
have a baby that is as closely genetically related to them and their family as
possible, including because in their culture blood relationship is considered
very important.

The man’s father wants to donate sperm to
artificially inseminate his daughter-in-law. The child will be the half-brother
of his social father, and the biological child of his social grandfather. Is
this ethically acceptable?

If not, but the surrogate grandmother is
seen as ethically acceptable, is it because she was not the biological mother?
Would it be acceptable to inseminate a still fertile woman with the sperm of
her infertile daughter’s husband? And what about a woman donating ova to her
daughter, which results in a child of the daughter’s husband and his

Does it make a difference if we change the
generational relationships and a sperm donor was the infertile husband’s
brother, not his father? Likewise, what about a sister donating ova to her
sister, or, as is not uncommon, a sister carrying a baby for her sister? Is the
latter less ethically worrisome than a grandmother doing so and, if so, why?

I believe that we must start from a basic
presumption that the child’s rights to be born into a natural family structure
in which the family relationships have not been intentionally confused, must be
given priority. If surrogacy, in general, or any particular instance of
surrogacy is not in a child’s “best interests” in such regards, it is unethical.
The same “child’s best interests principle” should apply to all uses of
reproductive technologies.

Sometimes a distinction between repairing
nature when it fails and doing something that would never happen in nature can
be helpful in looking at ethics. A grandmother giving birth to her biological
grandchild is something that could never happen in nature, and so I’d say no to
such surrogacy arrangements.

A woman giving birth to her own child
conceived with her son-in-law, even though it’s not incest (there is no sexual
intercourse and no blood relationship between them, as the crime of incest
requires), is, I believe, ethically reprehensible. Likewise, inseminating a
woman with her father-in-law’s sperm.

If for no other reason, the confusion of
family structures and roles that these possibilities would cause make them
unethical. Some might see them as the free choice of the adults involved and,
therefore, ethically acceptable. But the child, the most vulnerable person,
which is ethically relevant, and the one most likely to be harmfully affected,
has made no such choice and given no consent.

One response to this argument is that the
child has no right to complain, as he or she wouldn’t exist except for the
steps undertaken. Joanna Rose, a donor-conceived adult who objects to donor
conception, responded, “If I were the product of rape, I would still be glad to
be alive, but that doesn’t mean I or anyone else should approve of rape or that
it’s ethical.”

The bottom line, regarding surrogate
motherhood, and all uses of reproductive technologies, should be that when
adults’ claims to use these technologies clash with the rights or “best
interests” of the resulting children, the latter must prevail. So far, our
decisions have been mainly based on the opposite priority. If we examine past
decisions using this new basis, in some cases we might change our minds about
what is and is not ethical.

Margaret Somerville is the founding
director of the Centre for Medicine, Ethics and Law at McGill University.

Margaret Somerville AM, DSG, FRSC, FRSN, DCL is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor...