The surrogate parenthood law makes it possible for a woman who cannot conceive or tolerate a pregnancy to have a child in a rented womb. This is one of the most sensitive and troubling laws that exists in the sphere of ordering the relations between people. Its wording and the process in which it was enacted generated serious concerns among those who predicted that it would lead to the exploitation of disadvantaged women and act as a "slippery slope" to commerce in human organs.
Last week, it turned out that at least some of these fears were well-grounded. As reported in Ha'aretz on October 23 ("How two women gave birth to twin brothers fathered by the same man"), Prof. Shlomo Mashiah, one of Israel's leading gynecologists, said that "not a few women" who receive authorization to hire the services of a surrogate mother themselves undergo treatment to be implanted with their fertilized eggs, parallel to the implanting of the fertilized eggs in the surrogate mother. To receive the go-ahead for this coveted procedure, a woman must declare to a special Health Ministry committee that she is unable to become pregnant or unable to tolerate a pregnancy, and present a professional opinion to that effect from her gynecologist.
Mashiah, who is the head of the in vitro fertilization department at Asuta, a private Tel Aviv hospital, explains the phenomenon by noting that the childless couple "probably think they have nothing to lose, thinking `maybe this time it will happen to us.'" In effect, they are trying to maximize their prospects of becoming parents: not only does the surrogate mother become pregnant with the childless couple's fertilized eggs, they also try to induce pregnancy in the would-be mother, despite the failed attempts in the past. Mashiah says he sees nothing amiss with this state of affairs.
That is arguable, but it now turns out that many of those on the committee that implements and supervises the surrogate motherhood law - among them gynecologists, legal experts and social workers - had no idea that this practice was common, if unpublicized, in fertility clinics. In fact, they were stunned when told about it, and some of them said angrily that they were misled by the physicians who submitted opinions to the effect that the would-be mother could not become pregnant.
The next question, inevitably, is: what else do the members of the committee not know about when they are asked to authorize surrogate motherhood? The conclusion can only be that their ability or readiness to supervise the arrangements for surrogate motherhood are quite limited. The same unpalatable situation may also apply in the case of their ability or readiness to supervise other sensitive arrangements, which are on the way to becoming established practice, such as the purchase of eggs abroad.
Nor is it possible to escape the uneasy feeling that in some cases the committee is a mere rubber stamp for a morally disturbing process that is intended, according to the spirit and letter of the law, to make it possible for women to realize the dream of biological parenthood only after they have exhausted all other possibilities. True, the committee carefully examines the psychological, economic and emotional background of the two women involved in the arrangement, as well as their mutual compatibility; but apparently the panel is less rigorous in examining whether all other possibilities have truly been exhausted.
The law does not address the possibility that women will persist in their attempts to conceive even after the use of a surrogate has been authorized, and the committee acts accordingly. Likewise, the law ignores other possibilities. For example, a woman might come to an arrangement with two surrogate mothers, in order to maximize the possibility of having twins. Would the lacuna in the law make such an arrangement legally valid?
True, it can be argued, as Mashiah says, that there is nothing amiss with the would-be mother trying to get pregnant after receiving authorization to make use of a surrogate, as cases are known in which women became pregnant spontaneously and gave birth after adopting a child or having a child by a surrogate. What, then, is the difference between such natural pregnancy and pregnancy with the assistance of the laboratory? Here the fear arises of the slippery slope, in which the speed of the tumble stretches the limits of ethics to the utmost, commensurate with the headlong advances being made in the biotechnological revolution.
One can easily imagine a situation in which a woman decides that she would rather do without the stretch marks, the nausea, the swollen ankles and all the other vexations of the nine months of pregnancy, and therefore seeks to place the physical burden on a surrogate mother. After all, until recently, no one believed that women would deliberately prefer cesarean section to natural childbirth in order to spare themselves the pains of birth.
Another possibility is that the surrogate mother will give birth to a child with physical or mental defects, whereas the biological mother will succeed in getting pregnant and have a healthy child. In that case, would the biological mother not prefer the child who emerged from her womb and refuse to accept the other?
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