jueves, 7 de abril de 2016

UTERUS & COMPANY A new line of mass production

Uterus & Company
A new line of mass production
by
Jorge Octaviano Castro Urdaneta*


I
“The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which”
George Orwell, Animal Farm.

Each advance in reproductive technologies, like embryo transfer or embryo freezing, insemination by donor (AID) or in vitro fertilization (IVF), raises a multitude of ethical and legal questions, but one interesting issue is surrogate motherhood in develop countries.

The application of reproductive technologies under an arrangement whereby one woman bears a child for another, with the intent of relinquishing the infant at birth, is not a simple arrangement; it is extremely complex, and many ethical issues have risen out of this “contract”. The surrogate arrangement vary, but generally in the contract the surrogate agrees to be artificially inseminated, to bear a child, and at birth to give up all parental rights and transfer physical custody of the child to the “commissioning couple”, contracts vary, but they always include provisions concerning the rights and responsibilities of all parties, both before and during pregnancy and after the birth of the child. The heart of the arrangement is the promise by the surrogate to give up custody of the child and “the promise of the other party to accept the child”.

But the truth is far less palatable from the idyllic history about a smiling poor woman, who is carrying a baby in order to make enough money to live with some dignity and give happiness a childless couple; we can find many examples, like the disgraceful Baby Gammy case, in which an Australian couple left a twin boy with his birth mother when it was discovered he had Down’s syndrome.

If you seek information about the pros and contras of surrogate motherhood, you must be careful about the source of the studies, because you can find abundant studies on commercial surrogacy in the United States and Britain that consistently establish that surrogate mothers are pleased with the arrangements[1], in other hand, studies done in popular surrogacy destinations like India and or Thailand, establish that women in these countries are exploited in unthinkable ways, beyond circumstances like mothers who are not paid or underpaid, scheduled for caesarean for the convenience of intended parents or not receive post-natal care; even in countries where commercial surrogacy is prohibited, women may be coerced -through emotional pressure- into accepting surrogacy.[2]

The rise or fall of surrogacy market in any region is consequence of a rapidly changing legal landscape for the surrogacy industry, for instance the increase of the Mexican surrogacy market is connected with a rapidly changing legal landscape for the surrogacy industry, which has seen India, Thailand, and Nepal all legislate or ban the business in recent years.

After India began to regulate its multi-million dollar surrogacy business in 2012, surrogacy agencies and in vitro fertilization (IVF) clinics moved and set up in Thailand and Nepal to offer their services, either way when the Thai government banned surrogacy in summer 2014 (after the Baby Gammy case) Mexico started to witness rapidly increasing demand for surrogates in its territory, particularly in the Mexican state of Tabasco with a geographical proximity to the United States, and competitive low prices. Just like in Mexico’s maquiladora industry, a network of actors has emerged to facilitate the surrogacy process, now you can find a lot of local agencies, fertility clinics perform the medical procedures, recruit surrogate mothers and egg donors, lawyers set up contracts, and international agencies coordinate the journeys of intended parents to Mexico.

When some legislature banned surrogacy, it is closing doors to the international market and generates of course, the needs to be seen which country will appear as new ‘low cost’ option, Venezuela could be one[3], with an economy in crisis and absolute ignorance and indifference in this subject[4], looks like a good and cheap option to the first world.


II
“with usura is no clear demarcation
and no man can find site for his dwelling.
Stonecutter is kept from his tone
weaver is kept from his loom”
Ezra Pound,
Canto XLV, With Usura.

We can affirm in the ideal system of law[5], the surrogate mother is the patient, not the intended parents, and decisions about significant issues like how many embryos will be implanted, whether to participate in prenatal screening, and the manner of delivery are decisions that should be made by the surrogate mother with input from her healthcare providers, but the fact are that intended parents are paying for a “service”, time of a human life under a “special care guarantee for an agency”, and a “product” the existence of a human life.

The Baby Gammy case exposed that reality, in which a civilized Australian couple left a twin boy with his birth mother when it was discovered he had Down’s syndrome (Gammy), the intended parents claimed that “they had been told Gammy would be born with the genetic disorder before the twins were born, and asked the surrogacy agency to abort the child and give them a refund or find a solution”.[6]

May be making a baby the object of a civil contract or a commercial transaction, expose a subconscious expectation that the child should come with a warranty, as a new car the people involved in a “commercial negotiation” has the conviction to receive a “good quality product” or a “correct refund”.

Several countries realized the dangers of surrogacy agreements and order to assurance the best interest of the child, enacted legislation to ban or strictly regulate surrogacy. Austria, France, Germany, Sweden, Switzerland and other countries in Europe prohibit all surrogacy agreements. In those countries surrogacy agreements are considered against public policy or at least, we can find cases like United Kingdom, where has differentiated between commercial and altruistic surrogacy agreements and banned all commercial agreements, but all share one point of view, the reason for the prohibition against commercial surrogacy contracts is that in commercial agreements, the child as a human being is treated as a commodity, but an expensive one that only a few can afford.

France has taken position to ensure that surrogacy is prohibited, for the Civil Code:  “All agreements relating to procreation or gestation on account of a third party are void” (Article 16-7), and only things of a commercial nature can be the object of conventions (Article 1128), in the same way, the highest court in France the Cour de Cassation, ruled that surrogacy was contrary to the principle of the non-commercialisation of the human body:“que ces conventions contreviennent au principe d'ordre public de l'indisponibilité de l'état des personnes en ce qu'elles ont pour but de faire venir au monde un enfant dont l'état ne correspondra pas à sa filiation réelle au moyen d'une renonciation et d'une cession, également prohibées, des droits reconnus par la loi à la future mère ; que l'activité de l'association, qui tend délibérément à créer une situation d'abandon, aboutit à détourner l'institution de l'adoption de son véritable objet qui est, en principe, de donner une famille à un enfant qui en est dépourvu ; que c'est dès lors à bon droit que l'arrêt attaqué a décidé, sur le fondement de l'article 3 de la loi du 1er juillet 1901, que cette association était nulle en raison de l'illicéité de son objet” (Cass, Civ. 1, 13 December 1989, 88-15655).

The European Court of Human Rights in 2014, ruled that France's decision not to register the surrogate children of two French couples violated the rights of the children, but not the parents. The Mennesson and Labassee couples, both French, “received surrogacy services in the US. Upon returning home, French authorities informed the couples that they suspected the children to have been born through surrogacy and thus would not be registered by the civil registrar. Both couples sought relief in French courts, and both claims were denied because the use of surrogate mothers is banned in France. Registering the children, the courts said, would open a loophole in the law and encourage other couples to go abroad for surrogacy services. The courts noted that their decisions were not a violation of the parents’ rights to privacy and family life, as the actual act of registering the children had no direct implications on the relationship between the parents and their children”, but also pointed that the “refusal to register also jeopardized their own identity, both from a legal and personal standpoint, and could impact their ability to identify as members of French society”.[7]

But the Manuel Carlos Valls Galfetti the Prime Minister of France, declare “Il faut affirmer des positions claires: la GPA est et sera interdite en France. C’est le choix très ferme du président de la République et de son gouvernement. La France n’a jamais varié sur ce sujet. Elle est opposée à la légalisation de la GPA qui est, il faut le dire, une pratique intolérable de commercialisation des êtres humains et de marchandisation du corps des femmes”.[8]

The President of the European Bioethics Institute, Ethienne Redondo Montero, a similar posture, he said in a lecture given at the University of Navarra that if legalized surrogacy would be a contradiction to the term of affiliation, a fragmented affiliation would occur. However, it recalled that it is not that the rights of the stems of infertile couples to stay in the air, but if this were to occur would objectification of children and the elimination of the link with the mother.[9]

This is a complex subject, but beyond that exist a general conviction that the rules may need to be tightened in order to avoid abuses, the question to be responded by our societies is about to ban or not this activities. We must shudder at the idea of copy for Latin America the open system from other countries; where do not share the social, economic and political struggles that we live in countries like Venezuela.  

We must aware that permit surrogacy arrangements in our countries, as expensive process, shall not be a “direct service” for our depressed societies, the economics benefits will be indirect (i.e. taxes, jobs etc.), nevertheless the social cost will be direct (“Forced” Surrogacy, human traffic, etc.). If the legislature or the government has a necessity to copy the “first world”, for surprise of many of our Venezuelan political leaders, the world is quite bigger than Miami, New York and Caribbean islands; if is too difficult generate a legislation for our reality, Germany, France, England or Mexico could be examples to study, because there are different ways of regulation of surrogacy arrangements from a total band to a liberal perspective.


 III
"In the kingdom of ends everything has either a price or a dignity. 
If it has a price, something else can be put in its place as an equivalent; 
if it is exalted above all price and so admits of no equivalent, then it has a dignity"
Immanuel Kant, The Metaphysics of Morals.

The Supreme Court of California (1993) ruled: “Although common sense suggests that women of lesser means serve as surrogate mothers more often than do wealthy women, there has been no proof that surrogacy contracts exploit poor women to any greater degree than economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment. We are likewise unpersuaded by the claim that surrogacy will foster the attitude that children are mere commodities; no evidence is offered to support it. The limited data available seem to reflect an absence of significant adverse effects of surrogacy on all participants”[10].

By 1993 the easy access for global information was very restricted, but the privilege of think remains in humanity from prehistoric times, in that spirit it is possible visualize problems as the experience has proved it (i.e. Baby Gammy case). Questions about diagnosis of disabilities or diseases in fetus, even if there are equivocal, could lead to serious problems with a surrogacy arrangement, a prenatal diagnosis of disability or perceived imperfection could result in the commissioning couple reneging; a diagnosis of disability, could bring the option of abortion by the surrogate -and if she still wish to proceed with the birth, the commissioning couple may no longer want the child- despite other ethical problems.

Ethical issues flourish, affirmations about surrogate arrangements depersonalize reproduction and create a separation of genetic, gestational, and social parenthood; argument that there is a change in motives for “creating babies”: who are not conceived for their own sakes, but for another’s benefit.

In our concept, surrogacy involves the subordination of the welfare the child in favour of the commissioning parents desires to have a child, as Rosalie Ber said: “The question of whether the suffering of a childless woman is greater than that of the gestational surrogate, who ‘abandons’ her baby, is ‘solved’ when the surrogate mother is depersonalised, and looked upon solely as a ‘womb for rent’…”[11], as the Court of Appeals of Michigan State, ruled: “Surrogacy arrangements focus exclusively on the parents’ desires and interests, and, accordingly, the parties are apt to be insensitive to what would be in the children’s best interests. That position is in direct opposition to the child custody law in this state”.[12]

Many agree that it is unethical to buy and sell pregnancy but accept what is known as altruistic surrogacy, where a friend, relative or kind stranger bears a child for an infertile woman or couple for free, but: “The argument goes that if we do not accept altruistic surrogacy and put measures in place to regulate it, we will drive commercial surrogacy underground. But the opposite is true. The legal sanctioning and social acceptance of this practice, even where no money changes hands, will further perpetuate the notion that the wombs of poor women can be used as a service”.[13]

The problem is convert a human being in a line of mass production, there is no difference between machines or products, all are objects, the individual, the people has dignity; we are subjects.

Kant said: “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only”[14], the human dignity, the morals rights are issues to take seriously, if we could ask Immanuel Kant about if is it possible subscribe a surrogacy contract regarding the moral in the transaction, maybe he will answer: No, you "K"an’t…



*Universidad Católica Andrés Bello, Abogado. Universidad Central de Venezuela (UCV), Especialista en Derecho Administrativo; cursante del Doctorado en Ciencias, mención Derecho UCV.
[1] http://faculty.law.ubc.ca/cdnjfl/Past%20Issues/26-1.html.
[2] The French General Inspection of Social Affairs noted in its February 2011 Report: Etat des lieux et perspectives du don d’ovocytes en France, p. 25-26 http://www.ladocumentationfrancaise.fr/var/storage/rapports-publics/114000113/0000.pdf.
[3] The legal system in Venezuela, see: María Candelaria Domínguez Guillén. Gestación Subrogada. http://rvlj.com.ve/wp-content/uploads/2015/06/183-228.pdf.  
[5] For example in United Kingdom: “Surrogates are the legal mother of any child they carry, unless they sign a parental order after they give birth transferring their rights to the intended parents”. https://www.gov.uk/rights-for-surrogate-mothers and http://www.legislation.gov.uk/ukpga/1985/49.
[10] Johnson v. Calvert, 5 Cal. 4th 84 (1993).
[12] In the Matter of Baby M, 109 N.J. 396 (1988).
[14] George Sher. Ethics: Essential Readings in Moral Theory. (2012), p. 323.
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1 comentario:

  1. Anónimo15 de septiembre de 2022, 1:28 a.m.

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