Ethics in Practice

Ruth Macklin

It is an obvious truth that scientific and technologic innovations produce changes in our traditional way of perceiving the world around us. We have only to think of the telescope, the microscope, and space travel to recall that heretofore unimagined perceptions of the macrocosm and the microcosm have become commonplace. Yet it is not only perceptions, but also conceptions of the familiar that become altered by advances in science and technology. As a beginning student of philosophy, I first encountered problems in epistemology generated by scientific knowledge: If physical objects are really comprised of molecules in motion, how is it that we perceive them as solid? Why is it that objects placed on a table don't slip through the empty spaces between the molecules? If the mind is nothing but electrical processes occurring in the brain, how can we explain Einstein's ability to create the special theory of relativity or Bach's ability to compose the Brandenburg Concertos?

Now questions are being raised about how a variety of modes of artificial means of reproduction might alter our conception of the family. George Annas has observed: "Dependable birth control made sex without reproduction possible.... Now medicine is closing the circle ...

by offering methods of reproduction without sex; including artificial insemination by donor (AID), in vitro fertilization (IVF), and surrogate embryo transfer (SET). As with birth control,

artificial reproduction is defended as lifeaffirming and loving by its proponents, and denounced as unnatural by its detractors."

Opponents of artificial reproduction have expressed concerns about its effects on the family. This concern has centered largely but not entirely on surrogacy arrangements. Among the objections to surrogacy made by the Roman Catholic Church is the charge that "the practice of surrogate motherhood is a threat to the stability of the family." But before the consequences for the family of surrogacy arrangements or other new reproductive practices can be assessed, we need to inquire into our understanding of the family. Is there a single, incontrovertible conception of the family? And who are the "we" presupposed in the phrase, "our understanding"? To begin, I offer three brief anecdotes ...

The Biological Concept of Family

It is possible, of course, to settle these conceptual matters simply and objectively by adopting a biological criterion for determining what counts as a family. According to this criterion, people who are genetically related to one another would constitute a family, with the type and degree of relatedness described in the manner of a family tree. This sense of "family" is important and interesting for many purposes,

but it does not and cannot encompass everything that is actually meant by "family," nor does it reflect the broader cultural customs and kinship systems that also define family ties ...

Newly developed artificial means of reproduction have rendered the term "biological" inadequate for making some critical conceptual distinctions, along with consequent moral decisions. The capability of separating the process of producing eggs from the act of gestation renders obsolete the use of the word "biological" to modify the word "mother." In the past, it was possible to distinguish only the biological mother (sometimes called the "natural" mother) from the rearing or adoptive mother. The techniques of egg retrieval, in vitro fertilization, and gamete intrafallopian transfer (GIFT), now make it possible for two different women to make a biological contribution to the creation of a new life. It would be a prescriptive, rather than a descriptive definition to maintain that the egg donor should properly be called the "biological mother." The woman who contributes her womb during gestation - whether she is acting as a surrogate or is the intended rearing mother - is also a biological mother. We have only to reflect on the many ways that the intrauterine environment and maternal behavior during pregnancy can influence fetal and later child development to acknowledge that a gestating woman is also a biological mother. I will return to this issue later in considering how much genetic contributions should count in disputed surrogacy arrangements.

Additional DeterIllinants of the

Meaning of "FaIllily"

In addition to the biological meaning, there appear to be three chief determinants of what is meant by "family." These are law, custom, and what I shall call "subjective intentions." All three contribute to our understanding of the family. The effect of artificial means of reproduction on our understanding of the family will vary, depending on which of these three determinants is chosen to have priority. There is no way to assign a priori precedence to anyone of the three. Let me illustrate each briefly.

Artificial Means of Reproduction and the Family

Law as a determinant offamily

Legal scholars can elaborate with precision and detail the categories and provisions of family law. This area of law encompasses legal rules governing adoption, artificial insemination by donor, foster placement, custody arrangements, and removal of children from a home in which they have been abused or neglected. For present purposes, it will suffice to summarize the relevant areas in which legal definitions or decisions have determined what is to count as a "family. "

Laws governing adoption and donor insemination stipulate what counts as a family. In the case of adoption, a person or couple genetically unrelated to a child is deemed that child's legal parent or parents. By this legal rule, a new family is created. The biological parent or parents ofthe child never cease to be genetically related, of course. But by virtue oflaw, custom, and usually emotional ties, the adoptive parents become the child's family.

The Uniform Parentage Act holds that a husband who consents to AID of his wife by a physician is the legal father of the child. Many states have enacted laws in conformity with this legal rule. I am not aware of any laws that have been enacted making an analogous stipulation in the case of egg donation, but it is reasonable to assume that there will be symmetry of reasoning and legislation.

Commenting on the bearing of family law on the practice of surrogacy, Alexander M. Capron and Margaret J. Radin contend that the "legal rules of greatest immediate relevance" to surrogacy are those on adoption. These authors identify a number of provisions of state laws on adoption that should apply in the case of surrogacy. The provisions include allowing time for a "change of heart" period after the agreement to release a child, and prohibition of agreements to relinquish parental rights prior to the child's birth.

Capron and Radin observe that in the context of adoption, "permitting the birth mother to reclaim a child manifests society's traditional respect for biological ties." But how does this observation bear on artificial reproduction where

Families and Reproductive Technology

the "biological" tie can be either genetic or gestational?

Consider first the case of the gestational surrogate who is genetically unrelated to the child. Does society's traditional respect for biological ties give her or the genetic mother the right to "reclaim" (or "claim" in the first place) the child? Society's traditional respect is more likely a concern for genetic inheritance than a recognition of the depth of the bond a woman may feel toward a child she has given birth to.

Secondly, consider the case of egg donation and embryo transfer to the wife of the man whose sperm was used in IVF. If the sperm donor and egg recipient were known to the egg donor, could the donor base her claim to the child on "society's traditional respect for biological ties"? As I surmised earlier, it seems reasonable to assume that any laws enacted for egg donation will be similar to those now in place for donor insemination. In the latter context, society's traditional respect for biological ties gave way to other considerations arising out of the desire of couples to have a child who is genetically related to at least one of the parents.

Custom as a determinant offamily

The most telling examples of custom as a determinant of family are drawn from cultural anthropology. Kinship systems and incest taboos dictated by folkways and mores differ so radically that few generalizations are possible.

Ruth Benedict writes: "No known people regard all women as possible mates. This is not in an effort, as is so often supposed, to prevent inbreeding in our sense, for over great parts of the world it is an own cousin, often the daughter of one's mother's brother, who is the predestined spouse."

In contrast, Benedict notes, some incest taboos are

extended by a social fiction to include vast numbers of individuals who have no traceable ancestors in common ... This social fiction receives unequivocal expression in the terms of relationship which are used. Instead of distinguishing lineal from collateral kin as we do in the distinction between father and

uncle, brother and cousin, one term means literally 'man of my father's group (relationship, locality, etc.) of his generation,' ... Certain tribes of eastern Australia use an extreme form of this so-called classificatory kinship system. Those whom they call brothers and sisters are all those of their generation with whom they recognize any relationship.

One anthropologist notes that "the family in all societies is distinguished by a stability that arises out of the fact that it is based on marriage, that is to say, on socially sanctioned mating entered into with the assumption of permanency." If we extend the notion of socially sanctioned mating to embrace socially sanctioned procreation, it is evident that the new artificial means of reproduction call for careful thought about what should be socially sanctioned before policy decisions are made.

"Subjective Intention" as a determinant offami{y

This category is most heterogeneous and amorphous. It includes a variety of ways in which individuals - singly, in pairs, or as a group, consider themselves a family even if their arrangement is not recognized by law or custom. Without an accompanying analysis, I list here an array of examples, based on real people and their situations.

•A homosexual couple decides to solidify their relationship by taking matrimonial vows. Despite the fact that their marriage is not recognized by civil law, they find an ordained minister who is willing to perform the marriage ceremony. They are now a married couple, a family. Later they apply to be foster parents of children with AIDS whose biological parents have died or abandoned them. The foster agency accepts the couple. Two children are placed in foster care with them. They are now a family.

•A variation on this case: A lesbian couple has a long-term monogamous relationship. They decide they want to rear a child. Using "turkey-baster" technology, one of the women is inseminated, conceives, and gives birth to a baby. The three are now a family,

with one parent genetically related to the child.

•Pat Anthony, a 47-year-old grandmother in South Africa, agreed to serve as gestational surrogate for her own daughter. The daughter had had her uterus removed, but could still produce eggs and wanted more children. The daughter's eggs were inseminated with her husband's sperm, and the resulting embryos implanted in her own mother, Pat Anthony. Mrs. Anthony gave birth to triplets when she was 48. She was the gestational mother and the genetic grandmother of the triplets.

•Linda Kirkman was the gestational mother of a baby conceived with a sister's egg and destined to live with the infertile sister and her husband. Linda Kirkman said, "I always considered myself her aunt." Carol Chan donated eggs so that her sister Susie could bear and raise a child. Carol Chan said: "I could never regard the twins as anything but my nephews." The two births occurred in Melbourne within weeks of each other.

My point in elucidating this category of heterogeneous examples is to suggest that there may be entirely subjective yet valid elements that contribute to our understanding of the family, family membership, or family relationships. I believe it would be arbitrary and narrow to rule out all such examples by fiat. The open texture of our language leaves room for conceptions of family not recognized by law or preexisting custom.

Posing the question "Who counts as family?", Carol Levine replies: "The answer to this apparently simple question is by no means easy. It depends on why the question is being asked and who is giving the answer." Levine's observation, made in the context of AIDS, applies equally well to the context of artificial means of reproduction.

The Gestational versus the Genetic Mother

One critical notion rendered problematic by the new technological capabilities of artificial repro-

Artificial Means of Reproduction and the Family

duction is the once simple concept of a mother. The traditional concept is complicated by the possibility that a woman can gestate a fetus genetically unrelated to her. This prospect has implications both for public policy and our understanding of the family. The central policy question is: How much should genetic relatedness count in disputed surrogacy arrangements?

A matter oj discovery or decision?

Which criterion - genetic or gestationalshould be used to determine who is the "real" mother? I contend that this question is poorly formulated. Referring to the "real" mother implies that it is a matter of discovery, rather than one calling for a decision. To speak of "the real x" is to assume that there is an underlying metaphysical structure to be probed by philosophical inquiry. But now that medical technology has separated the two biological contributions to motherhood, in place of the single conjoint role provided by nature, some decisions will have to be made.

One decision is conceptual, and a second is moral. The conceptual question is: Should a woman whose contribution is only gestational be termed a "mother" of the baby? We may assume, by analogy with our concept of paternity, that the woman who makes the genetic contribution in a surrogacy arrangement can properly be termed a "mother" of the baby. So it must be decided whetherthere can be only one "mother," conceptually speaking, or whether this technological advance calls for new terminology.

Conceptual decisions often have implications beyond mere terminology. A decision not to use the term "mother" (even when modified by the adjective "gestational") to refer to a woman who acts in this capacity can have important consequences for ethics and public policy. As a case in point, the Wayne County Circuit Court in Michigan issued an interim order declaring a gamete donor couple to be the biological parents of a fetus being carried to term by a woman hired to be the gestational mother ... Upon birth, the court entered an order that the names of the ovum and sperm donors be listed on the birth certificate, rather than that of the

Families and Reproductive Technology

woman who gave birth, who was termed by the court a "human incubator."

The ethical question posed by the separation of biological motherhood into genetic and gestational components is: Which role should entitle a woman to a greater claim on the baby, in case of dispute? Since the answer to this question cannot be reached by discovery, but is, like the prior conceptual question, a matter for decision, we need to determine which factors are morally relevant and which have the greatest moral weight. In order to avoid begging any ethical questions by a choice of terminology, I use the terms "genetic mother" and "gestational mother" to refer to the women who make those respective contributions. And instead of speaking of the "real" mother, I'll use the phrase "primary mother" when referring to the woman presumed to have a greater claim on the child.

Morally relevant factors

The possibilities outlined below are premised on the notion that surrogacy contracts are voidable. I take this to mean that no legal presumption is set up by the fact that there has been a prior contract between the surrogate and the intended rearing parents. From an ethical perspective, that premise must be argued for independently, and convincing arguments have been advanced by a number of authors. If we accept the premise that a contractual provision to relinquish a child born of a surrogacy agreement has no legal force, the question then becomes: Is there a morally relevant distinction between the two forms of surrogacy with respect to a claim on the child? Who has the weightiest moral claim when a surrogate is unwilling to give the baby up after its birth? Where should the moral presumption lie?

Who most "deserves" or has a "right" to the child?

Three main views are outlined under this heading, each taking a different stance on which factor should be the criterion for having the greatest moral claim.

1. Gestation is the overriding factor According to this position, whether a woman

is merely the gestational surrogate, or also con-

tributes her genetic material, makes no difference in determining moral priorities. In either case, the surrogate is the primary mother because the criterion is gestation.

This position is adopted by George Annas and others who have argued that the gestational mother should be legally presumed to have the right and responsibility to rear the child. One reason given in support of this presumption is (a) "the greater biological and psychological investment of the gestational mother in the child." This is referred to as "sweat equity." A related yet distinct reason is (b) "the biological reality that the mother at this point has contributed more to the child's development, and that she will of necessity be present at birth and immediately thereafter to care for the child."

Reason (a) focuses on what the gestational mother deserves, based on her investment in the child, while reason (b), though mentioning her contribution, also focuses on the interests of the child during and immediately after birth. Annas adds that "to designate the gestational mother, rather than the genetic mother, the legal or 'natural mother' would be protective of children."

2.Genetics is the overriding factor

In surrogacy arrangements, it is the inseminating male who seen as the father, not the husband of the woman who acts as a surrogate. This is because the genetic contribution is viewed as determinative for fatherhood. By analogy, the woman who makes the genetic contribution is the primary mother. This position sharply distinguishes between the claim to the child made by the two different types of surrogate. It makes the surrogate who contributes her egg as well as her womb the primary (or sole) mother. But now recall the fact that in AID, the law recognizes the husband of the inseminated woman as the father. This shows that laws can be made to go either way.

This position was supported by the court in

Smith & Smith v. Jones & Jones, on grounds of the analogy with paternity. The court said: "the donor of the ovum, the biological mother, is to be deemed, in fact, the natural mother of this infant, as is the biological father to be deemed the natural father of this child."

Legal precedents aside, is there a moral reason that could be invoked in support of this position? One possibility is (a) "ownership" of one's genetic products. Since each individual has a unique set of genes, people might be said to have a claim on what develops from their own genes, unless they have explicitly relinquished any such claims. This may be a metaphorical sense of "ownership," but it reflects the felt desire to have genetically related children - the primary motivation behind all forms of assisted reproduction.

Another possible reason for assigning greater weight to the genetic contribution is (b) the child-centered position. Here it is argued that it is in children's best interest to be reared by parents to whom they are genetically related. Something like this position is taken by Sidney Callahan. She writes:

The most serious ethical problems in using third party donors in alternative reproduction concern the well-being of the potential child.... A child who has donor(s) intruded into its parentage will be cut off from its genetic heritage and part of its kinship relations in new ways. Even ifthere is no danger oftransmitting unknown genetic disease or causing physiological harm to the child, the psychological relationship of the child to its parents is endangered - with or without the practice of deception and secrecy about its origins.

Additional considerations lending plausibility to this view derive from data concerning adopted children who have conducted searches for their biological parents, and similar experiences of children whose birth was a result of donor insemination and who have sought out their biological fathers. In the case of gestational surrogacy, the child is genetically related to both of the intended rearing parents. However, there is no data to suggest whether children born of gestational mothers might someday begin to seek out those women in a quest for their "natural" or "real" mothers.

3. Gestation and genetics both count According to this position, the surrogate who

contributes both egg and womb has more of a

Artificial Means of Reproduction and the Family

claim to being the "primary" mother than does the surrogate who contributes only her womb. Since the first type of surrogate makes both a genetic and a gestational contribution, in case of a dispute she gets to keep the baby instead of the biological father, who has made only one contribution. But this does not yet settle the question of who has a greater moral claim to the infant in cases where the gestational surrogate does not wish to give up the baby to the genetic parents. To determine that, greater weight must be given either to the gestational component or the genetic component.

Subsidiary views

One may reject the notion that the only morally relevant considerations are the respective contributions of each type of surrogate. Another possible criterion draws on the biological conception of family, and thus takes into account the contribution of the genetic father. According to this position, two genetic contributions count more than none. This leads to three subsidiary views, in addition to the three main positions outlined above.

4.Gestational surrogates have less of a moral claim to the infant than the intended parents, both of whom have made a genetic contribution. This is because two (genetic) contributions count more than one (gestational) contribution. This view, derived from "society's traditional respect for biological ties," gives greatest weight to the concept of family based on genetic inheritance.

5.A woman who contributes both egg and womb has a claim equal to that of the biological father, since both have made genetic contributions. If genetic contribution is what determines both "true" motherhood and fatherhood, the policy implications of this view are that each case in which a surrogate who is both genetic and gestational mother wishes to keep the baby would have to go to court and be settled in the manner of custody disputes.

As a practical suggestion, this model is of little value. It throws every case of this type of surrogacy - the more common variety - open to this possibility, which is to move backwards in public policy regarding surrogacy.

Families and Reproductive Technology

6. However, if genetic and gestational contributions are given equal weight, but it is simply the number of contributions that counts, the artificially inseminated surrogate has the greater moral claim since she has made two contributions - genetic and gestationalwhile the father has made only one, the genetic contribution.

Conclusions

What can we conclude from all this about the effects of artificial means of reproduction on the family and on our conception of the family? Several conclusions emerge, although each requires a more extended elaboration and defense than will be given here.

A broad definition of "family" is preferable to a narrow one. A good candidate is the working definition proposed by Carol Levine: "Family members are individuals who by birth, adoption, marriage, or declared commitment share deep personal connections and are mutually entitled to receive and obligated to provide support of various kinds to the extent possible, especially in times of need."

Some of the effects of the new reproductive technologies on the family call for the development of public policy, while others remain private, personal matters to be decided within a given family. An example of the former is the determination of where the presumptions should lie in disputed surrogacy arrangements, whose rights and interests are paramount, and what procedures should be followed to safeguard those rights and interests. An example of the latter is disclosure to a child of the facts surrounding genetic paternity or maternity in cases of donor insemination or egg donation, including the identity of the donor when that is known. These are profound moral decisions, about which many people have strong feelings, but they are not issues to be addressed by public policy.

It is not at all clear that artificial modes of reproduction threaten to produce greater emotional difficulties for family members affected, or pose more serious ethical problems, than those already arising out of long-standing practices such as adoption and artificial insemination. The analogy is often made between the

impact on women who serve as surrogates and those who have lost their biological offspring in other ways.

Warning of the dangers of surrogacy, defenders of birth mothers have related the profound emotional trauma and lasting consequences for women who have given their babies up for adoption. One such defender is Phyllis Chesler, a psychologist who has written about the mother-infant bond and about custody battles in which mothers have lost their children to fathers. Dr. Chesler reports that many women never get over having given up their child for adoption. Their decision "leads to thirty to forty years of being haunted." Chesler contends that the trauma to women who have given up their babies for adoption is far greater than that of incest, and greater than that felt by mothers who have lost custody battles for their children.

Additional evidence of the undesirable consequences for birth mothers of adoption is provided by Alison Ward, a woman who serves as an adoption reform advocate. Having given up her own daughter for adoption in 1967, she found and was reunited with her in 1980. Ms. Ward said to an audience assembled to hear testimony on surrogacy:

I think that you lack the personal experience I have: that of knowing what it is like to terminate your parental rights and go for years not knowing if your child is dead or alive. All the intellectual and philosophical knowledge in the world cannot begin to touch having to live your life as a birthparent. Last Sunday was Mother's Day. It seems ironic that, as our country gives such lip service to the values of motherhood and the sanctity of the bond between mother and child, that we even consider legalizing a process [surrogacy] which would destroy all that.

The effects of these practices on children are alleged to be equally profound and damaging. Scholarly studies conducted in recent years have sought to evaluate the adjustment of children to adoption. One expert notes that "the pattern emerging from the more recent clinical and nonclinical studies that have sampled

widely and used appropriate controls, generally supports the view that, on the average, adopted children are more likely to manifest psychological problems than nonadopted children." The additional fact that numerous adopted children have sought to find their biological parents, despite their being in a loving family setting, suggests that psychological forces can intrude on the dictates of law or custom regarding what counts as a family. Although it is easier to keep secret from a child the circumstances surrounding artificial insemination and egg donation, such secrets have sometimes been revealed with terrible emotional consequences for everyone involved.

Alison Ward compares the impact of surrogacy on children to both situations: There will always be pain for these children. Just as adoptive parents have learned that they cannot love the pain of their adopted children away, couples who raise children obtained through surrogacy will have to deal with a special set of problems. Donor offspring ... rarely find out the truth of their origins. But, some of them do, and we must listen to them when they speak of their anguish, of not knowing who fathered them; we must listen when they tell us how destructive it is to their self esteem to find out their father sold the essence of his lineage for $40 or so, without ever intending to love or take responsibility for them. For children born of surrogacy contracts, it will be even worse: their own mothers did this to them.

Phyllis Chesler paints a similarly bleak picture of the effect on children of being adopted away from their birth mothers. She contends that this has "dramatic, extreme psychological consequences." She cites evidence indicating that adopted children seem more prone to mental and emotional disorders than other children, and concludes that "children need to know their natural origins."

These accounts present only one side, and there is surely another, more positive picture of parents and children flourishing in happy, healthy families that would not have existed but for adoption or artificial insemination. Yet

the question remains, what follows in any case from such evidence? Is it reasonable to conclude that the negative consequences of these practices, which have altered traditional conceptions of the family, are reasons for abolishing them? Or for judging that it was wrong to institute them in the first place, since for all practical purposes they cannot be reversed? A great deal more evidence, on a much larger scale, would be needed before a sound conclusion could be reached that adoption and artificial insemination have had such negative consequences for the family that they ought never to have been socially sanctioned practices.

Similarly, there is no simple answer to the question of how artificial means of reproduction affect our understanding of the family. We need to reflect on the variety of answers, paying special attention to what follows from answering the question one way rather than another. Since there is no single, univocal concept of the family, it is a matter for moral and social decision just which determinants of "family" should be given priority.

Notes

George J. Annas, "Redefining Parenthood and Protecting Embryos," Judging Medicine (Clifton, NJ: Humana Press, 1988), p. 59. Reprinted from

The Hastings Center Report, October 1984.

2William F. Bolan, Jr., Executive Director, New Jersey Catholic Conference, "Statement of New Jersey Catholic Conference in Connection with Public Hearing on Surrogate Mothering," Commission on Legal and Ethical Problems in the Delivery of Health Care, Newark, New Jersey, May 11, 1988.

3Ruth Macklin, "Good Citizen, Bad Citizen: Case Commentary," Everyday Ethics: Resolving Dilemmas in Nursing Home Life, ed. Rosalie A. Kane and Arthur L. Caplan (New York: Springer Publishing Company, 1990), p. 65.

4Cited in Carol Levine, "AIDS and Changing Concepts of Family," The Milbank Quarterly 68,

Supplement 1 (1990), p. 37.

5A. M. Capron and M. J. Radin, "Choosing Family Law Over Contract Law as a Paradigm for Surrogate Motherhood," Law, Medicine fS Health Care 16 (1988): 35.

6Ibid.

Families and Reproductive Technology

7Ruth Benedict, Patterns of Culture (New York: Mentor Books, 1934), p. 29.

8Ibid., p. 30.

9Melville J. Herskovits, Cultural Anthropology

(New York: Alfred A. Knopf, 1955), p. 171.

10 R. Alta Charo, "Legislative Approaches to Surrogate Motherhood," Law, Medicine

Care 16 (1988): 104.

II"AIDS and Changing Concepts of Family," p.35.

12O.T.A. report, Infertility: Medical and Social Choices, p. 284; case cited Smith (5 Smith v.

Jones (5 Jones, 85-532014 DZ, Detroit MI, 3rd Dist. (March 15, 1986), as reported in BioLaw,J. Childress, P. Kin, K. Rothenberg, et al. (eds.) (Frederick, MD: University Publishers of America, 1986). See also Annas, "The Baby Broker Boom," Hastings Center Report 16 Gune 1986): 30-1.

13See, e.g., George J. Annas, "Death without Dignity for Commercial Surrogacy: The Case of Baby M," Hastings Center Report 18 (April! May 1988); and Bonnie Steinbock, "Surrogate Motherhood as Prenatal Adoption ed. Larry Gostin, Surrogate Motherhood: Politics and Priv- acy (Bloomington, IN: Indiana University Press, 1990), pp. 123-35.

14Sherman Elias and George J. Annas, "Noncoital Reproduction," JAMA 255, Ganuary 3, 1986): 67.

15George J. Annas, "Death without Dignity for Commercial Surrogacy: The Case of Baby M," p.23.

16Ibid., p. 24.

17Annas, "The Baby Broker Boom," p. 31.

18"The Ethical Challenge of the New Reproductive Technology," presentation before the Task Force on New Reproductive Practices; published in John F. Monagle and David C. Thomasma (eds.), Medical Ethics: A Guide}or Health Care Professionals (Frederick, Maryland: Aspen Publishers, 1987) pp. 15-16, typescript.

19"AIDS and Changing Concepts of Family," p. 36.

20This statement and subsequent ones attributed to Phyllis Chesler are taken from her unpublished remarks made at a Public Hearing on Surrogacy conducted by the New Jersey Bioethics Commission, Newark, New Jersey, May II, 1988, in which the author was a participant.

21Written testimony, presented orally at the New Jersey Bioethics Commission public hearing on surrogacy, May 11, 1988.

22David M. Brodzinsky, "Adjustment to Adoption: A Psychosocial Perspective," Clinical P~ychology Review 7 (1987): 29.

23Ward, written testimony from New Jersey

public hearing.

24Chesler, oral testimony at New Jersey public hearing.

Elizabeth S. Anderson

In the past few years the practice of commercial surrogate motherhood has gained notoriety as a method for acquiring children. A commercial surrogate mother is anyone who is paid money to bear a child for other people and terminate her parental rights, so that the others may raise the child as exclusively their own. The growth of commercial surrogacy has raised with new urgency a class of concerns regarding the proper scope of the market. Some critics have objected to commercial surrogacy on the ground that it improperly treats children and women's reproductive capacities as commodities. 1 The prospect of reducing children to consumer durables and women to baby factories surely inspires revulsion. But are there good reasons behind the revulsion? And is this an accurate description of what commercial surrogacy implies? This article offers a theory about what things are properly regarded as commodities which supports the claim that commercial surrogacy constitutes an unconscionable commodification of children and of women's reproductive capacities.

What Is a Commodity?

The modern market can be characterized in terms of the legal and social norms by which it governs the production, exchange, and enjoyment of commodities. To say that something is

properly regarded as a commodity is to claim that the norms of the market are appropriate for regulating its production, exchange, and enjoyment. To the extent that moral principles or ethical ideals preclude the application of market norms to a good, we may say that the good is not a (proper) commodity.

Why should we object to the application of a market norm to the production or distribution of a good? One reason may be that to produce or distribute the good in accordance with the norm is to Jail to value it in an appropriate way.

Consider, for example, a standard Kantian argument against slavery, or the commodification of persons. Slaves are treated in accordance with the market norm that owners may use commodities to satisfy their own interests without regard for the interests of the commodities themselves. To treat a person without regard for her interests is to fail to respect her. But slaves are persons who may not be merely used in this fashion, since as rational beings they possess a dignity which commands respect. In Kantian theory, the problem with slavery is that it treats beings worthy of respect as if they were worthy merely of use. "Respect" and "use" in this context denote what we may call different modes ojvaluation. We value things and persons in other ways than by respecting and using them. For example, love, admiration, honor, and appreciation constitute distinct modes of valuation. To value a thing or person in a