William C. Duncan: A child is not an entitlement, and a uterus is not a commodity

(Al Hartmann | The Salt Lake Tribune) Attorney Edwin Wall speaks before the state Supreme Court Tuesday Sept. 12 for a married gay couple over a law that prevents married gay men from having biological children through surrogacy. The couple says the state law prohibits them from becoming biological parents with the help of a surrogate.

The claim of a right to a child or a right to surrogacy is novel – and troubling.

The Utah Supreme Court recently heard arguments in a challenge to a Utah law that allows couples to use a surrogate to create a child when the wife cannot carry a child to term.

The challenge came from two men asking for court approval of a contract with a woman who would carry a child and then relinquish parental rights to the men after the baby was born.

Since there was no wife in this marriage, the clear terms of Utah law precluded the contract. Hence the recent appeal to the high court.

According to the news, the two men claim Utah’s law violates the federal and state constitutions by denying them a right to a child through surrogacy and by discriminating based on sexual orientation.

But a child is not an entitlement that can be claimed, and a woman is not an object for effectuating the desires of others for a child, regardless of whether those seeking the child are in an opposite-sex or same-sex relationship. The Constitution cannot justifiably be read to create that result.

Similarly, there is no unjust discrimination when the law merely makes distinctions based on real differences with real consequences. There are good reasons to believe that the sex of the parents is actually a valid consideration in this law, not just an artifact of a time when marriage was defined differently.

To take one example, a married man and woman who use a surrogate could both be the genetic parents of a child. In a same-sex couple, at least one of the genetic parents of that child will necessarily be excluded from the child-rearing arrangement. This means, as well, that a child raised in this context will be missing a father or mother in their daily life.

For these couples, a third party must be involved as an egg donor. This means either the surrogate’s egg be fertilized and she give up her child, or that a fourth-party “egg donor” (typically paid) must undergo a risky and intrusive procedure to extract an egg to be used to create the embryo the surrogate will carry.

The state, however, is not contesting the men’s effort to get a surrogacy arrangement. Rather, it is trying to avoid the constitutional question by saying current surrogacy law could just be read in a gender-neutral way so that the reference to “wife” could mean “husband.” The courts, however, should not get into the business of rewriting clear statutes just because they seem outmoded by new theories.

Some of the commentary on this case has suggested that we should rethink current laws about surrogacy. That is a good idea, but perhaps not for the reason they might suggest. The question of surrogacy is fraught with ethical, practical and moral concerns. Our aim should not be to try to figure out how to open up the market for contract pregnancies to alternative family forms, but to rethink whether state-approved surrogacy contracts are a good idea at all.

Even where there is no formal payment exchanged between an intended parent and a surrogate, there are many unanswered questions that suggest state-approved surrogacy is a bad idea.

For instance, we know very little about the effects of these arrangements on children. The surrogate has a significant biological influence on that child, yet has no legal relationship with the child. It seems reasonable to expect a child to want to know the person who played so significant a role in their development. Is it OK for that desire to be thwarted because the adults involved had a contract?

Pregnancy creates risk, sometimes very significant ones. Is there any reason to believe that the contract approach ensures effective informed consent?

What about the situations in which the commissioning couple wants the mother to end a pregnancy through abortion because the child has a disability? Can the life of an unborn child be contracted away (especially when the child is not even a party to the contract)?

What about others who are not parties to the contract but whose lives will be dramatically affected—the children, spouse or family members of the surrogate?

Medical advances now allow couples to have children despite difficulties that would have prevented that in the past. Many of these advances raise few concerns. Some, however, raise serious concerns, and our current approach of facilitating any adult arrangement, regardless of impact on children and others, does not serve us well.

A better approach starts with what we owe to children. To begin with, we must ensure that our policies not treat children as commodities. We must also ensure that women, euphemistically called “egg donors” or “surrogates,” are not treated as commodities used to produce children for others.

William C. Duncan, J.D., is a senior fellow at Sutherland Institute.