Selling babies is illegal in Canada-perhaps. While there are laws which cover money changing hands in the conventional adoption process, there are no specific laws governing the new phenomenon of commercial “surrogate” motherhood.
A surrogate (replacement) mother is one who agrees to conceive and bear a child for another woman. The trouble is, the “surrogate” mother is the child’s actual biological mother. (The second woman involved in the agreement is an “adoptive” mother or the real replacement, but the term “surrogate” is still commonly used to describe the biological mother.)
The surrogate mother is artificially inseminated (usually with sperm from a man whose wife cannot conceive.) She then carries the child until birth, when the baby is given to the natural father and his wife. In effect, she “leases her womb,” and, in return receives a fee for her services. Many see this as a new form of prostitution.
Surrogate motherhood received wide publicity late last year with the birth of Baby Cotton in England. While there have been surrogate babies born in Canada, only a few have become public knowledge.
In 1982, a Florida woman traveled to Toronto to give birth to a baby commissioned by a Canadian couple. After the baby was born, it was placed in the care of the Children’s Aid Society and the father went to court to prove paternity and win custody. The Court ruled that the surrogate mother could not receive the agreed-upon fee of $10 000 for her services.
Also in 1982, the B.C. Supreme Court approved the payment of a fee by adoptive parents to a young pregnant woman to cover her medical, legal and traveling expenses.
Such payments were a condition made by the pregnant woman before giving up her baby for adoption. While this case is not a true surrogate case, as it is currently defined, it may be used as a precedent in court cases. Toronto lawyer, Philip Epstein, who has worked on surrogate cases, viewed it as such in an interview with the Globe and Mail (May 21, 1983)
In January this year, a Red Deer, Alberta woman publicized that her 16 month old daughter was born to a surrogate mother. The couple have now hired the same surrogate (A married, 31 year old Detroit woman, daughter of a Baptists minister, according to the Alberta Report) to bear another child for them.
Lawyer Noel of Dearborn, Michigan, is the go-between for this couple, and for other Canadian couples. He told the Calgary Herald that he has arranged for the delivery of 10 babies to Canadian clients. One of them was bought by an unmarried man. “I don’t’ believe he was homosexual,” Kean said, “but I can’t say for sure.”
Keane says he has about 40 Canadian women anxious to “rent their wombs.” So far, only four of them have produced babies – and collected $10,000 for their “work.” The clients pay much more than just the fee to the surrogate mother. Clients pay between $22,000 and $25,000 altogether, Lawyer Keanse takes $7500, the surrogate gets $10000, the inseminating doctor gets $1500(an unnecessary expense according to Keane who says the surrogate can do it herself-at home with “a syringe or a turkey baster”, $ 400 goes to the surrogate’s legal fees and the rest is for assorted medical expenses.
After his Ontario experience in 1982, which he calls his “Canadian fiasco,” Keane makes all his arrangements in the U.S.. The baby is born in the U.S. and then adopted in one of the states that neither requires a home study (conducted by a children’s aid Society to ensure that the adopting couple will be suitable parents) nor objects to money changing hands for a baby. Keane then obtains a U.S. birth certificate that names the commissioning couple as the parents. Nothing on the birth certificate indicates that it is a surrogate baby.
There are many such baby brokers in the U.S. and Keane suspects many of them have Canadian clients, with $25 000 to buy a baby that is biologically half theirs. Asked about the morality of selling babies, Keane retorts, “If someone is buying a baby, who is it? Is the natural father buying his own child? The fee is strictly for the use of a body.” (Alberta Report, February 11 1985)
This may be all well and good, depending on your point of view, but not all surrogacy arrangements end to the satisfaction of all the parties involved.
An Ohio surrogate mother changed her mind and kept the baby, “I feel horrible for the love I feel for this baby. How am I ever going to tell him I took him away from someone who wanted him?… I feel guilty that he brings joy into my life? (Toronto Star, November 10, 1983)
In Michigan, Judy Stiver’s surrogate baby was born microcephalic and mentally retarded. The natural father, Alex Malahoff rejected the child and insisted on blood tests to prove paternity. Both Malahoff and Stiver agreed to appear on the Phil Donahue TV show, where the test results were announced. The baby, according to the blood tests results, is not Malahoff’s and is now in the custody of the Stiver’s while both sides sue each other.
The Law Reform Commission
To this date, what little debate there has been on the subject focuses on the fact that the surrogate mother is paid to have the baby. Following the Toronto birth in 1982, the Ontario government asked the Ontario Law Reform Commission to come up with guidelines for legislation to deal with surrogate motherhood. The Law Reform Commission report is expected soon and is surrogate motherhood as long as no profit is involved. Other provinces appear to be waiting to see what Ontario does before they discuss legislation.
Clearly, the new attitude to reproduction as a form of technology assumes that there is a “right” to have a child. Professor Donald De Marco (in a forthcoming pamphlet on in-vitro fertilization, to be published by the Life Ethics Centre, Edmonton) says:
“An individual person does not have a right to have a child. Having a child involves the co-operation of two people. One individual does not have the right to expropriate from another what is needed in order to produce a child… It is dangerous to argue that even a married couple has a right, in the strict sense of the term to have a child. A child is a person and no person has a right to another person. We do not want to reduce certain people-children in this case-to objects.”