REPRODUCTIVE TECHNOLOGIES

CHAPTER 6 REPRODUCTIVE TECHNOLOGIES

Imagine that you are sitting in your living room with Tom and Joan, two of your closest friends. They have been married for seven years and have been trying to have a baby for the last three years. They have tried all the “home remedies” for infertility that their friends have suggested, such as romantic getaways and ovulation predictor kits, however, none of them have worked. They have difficulty getting excited about their friends having children; in fact, every time another couple they know has a baby, they become more depressed about their own failure to have a child. They have stopped going to church on Mother’s Day and Father’s Day and other “family” type holidays, such as Thanksgiving and Christmas, because celebrations with families are painful reminders of their desire to have a family themselves. Infertility has shaken their respective senses of manhood and womanhood, because they have realized that a significant part of their identities as man and woman revolve around the ability to have a child. You and your spouse have only been married for a short time and have not attempted to conceive a child yet, so their frank discussion of their infertility has caught you two a bit off guard. You had assumed that when people wanted to have a child, they were able to accomplish it in fairly short order. You wonder how Tom and Joan can have such trouble conceiving when they would clearly make great parents and so many unwed teenagers are having unwanted babies to whom they cannot be good parents. You feel the pain that Tom and Joan are experiencing and hope that you and your spouse do not have to go through what they have been through. Until they talked to you, you had no idea of the pain that infertility causes a couple. Tom and Joan have just told you about their first visit to an infertility clinic in the area. The clinic specializes in infertility treatments that you have

read about, such as in vitro fertilization. The clinic has presented Tom and Joan with quite an array of technological options, some very expensive that would require borrowing money since their health insurance does not cover infertility. They are very confused about which option, if any, they should choose. They have been to their pastor, and he doesn’t know very much about infertility treatments. He was married at a young age, and he and his wife had the first of their four children within the first year. Two of their children were “surprises.” The pastor and his wife clearly had no difficulty conceiving, could not relate, and were not very helpful. So Tom and Joan have come to you. They know that you are studying ethics at the present time, and they are hoping that you might have something helpful to suggest to them. They want to know which, if any, of the reproductive options available are morally acceptable, or whether adoption is the only alternative. They have Catholic friends who have told them that most of the clinic’s options are not right, but they want your opinion. What would you tell them? What moral guidelines would you give them? How would your Christian worldview impact your advice? Since the late 1970s (with the birth of the first “test-tube baby” in England in 1978), medicine has made some remarkable accomplishments in the field of reproductive technology. The term reproductive technology refers to various medical procedures that are designed to alleviate infertility, the inability of a couple to produce a child of their own. These procedures include technologies such as artificial insemination (also known as intrauterine insemination), in vitro fertilization, and surrogate motherhood. Until recently, adoption was the only viable way by which an infertile couple could have a child. Yet in adoption the child is not genetically related to either of the parents. The promise of these reproductive technologies is that they enable infertile couples to have a child to whom at least one of the parents is genetically related. When successful, these technologies are the miracle of life for couples who have often spent years trying to have a child and have exhausted all other avenues for conceiving a child of their own. But many of these techniques raise major moral questions and can create thorny legal questions that must be resolved in court. Increasingly, judges are looking for direction in deciding these cases, since there is no precedent in the law on which to

rely. Legislators are increasingly looking to ethics to help formulate policies to deal with some of these complexities before they arise. These new technologies now make all sorts of interesting childbearing arrangements possible. Some of the more mainstream uses of reproductive technologies include the following: • A woman and her husband, who cannot produce sperm, want to have a child. She is artificially inseminated with the sperm from an anonymous donor and conceives and bears a child. • A couple in their early forties, married in their late thirties and now wanting to have children, are advised by their physician to secure an egg donor due to the age of the woman’s eggs and the increased probability of birth defects. • A woman is able to produce eggs but is unable to carry a child to term. She and her husband “rent” the womb of another woman to gestate the embryo that will be formed by laboratory fertilization of the husband’s sperm and the wife’s egg. Other uses of reproductive technologies that were once considered novel but are mainstream today include these: • A lesbian couple desire to have a child. One of the women provides the egg. It is fertilized by donor sperm, and the embryo is then implanted in the uterus of her partner. • Two homosexual males want to raise a child. They can either inseminate a surrogate, who both “donates” the eggs and carries the child to term, or they purchase eggs from a “donor” and have them fertilized in the lab and then implanted in a surrogate who will carry and give birth to the child. • A single woman who no longer wants to wait for marriage to have a child goes to the local infertility clinic and is inseminated with donor sperm and has a child. Some of the more novel uses of reproductive technologies include these: • A couple wants to attempt to have a “designer child.” They advertise for an egg donor who has the following characteristics: five feet ten inches tall or above, blond, blue-eyed, athletic, and scored above 1400 on her SAT exam. They are willing to pay up to $50,000 for a harvest of her

eggs. • A couple with three girls wants to “balance their family” with a boy. They can select for gender by sorting the husband’s sperm and inseminating the wife with the sperm that will give them a high likelihood of producing a boy. • A fifty-four-year-old woman who has reached menopause loses her only son in an automobile accident. She wants very much to have another child but cannot on her own. She purchases an egg from a donor, her husband’s sperm fertilizes the egg in vitro, and her physician hormonally prepares her uterus for implantation. • A young man in his midtwenties suffers a fatal head injury in an auto accident. After being pronounced brain-dead and before he is taken off life support, his wife requests to harvest his sperm so that she can “have his child.” Surgeons procure his sperm in conjunction with the harvest of other organs obtained for donation. • A single woman is diagnosed with breast cancer requiring chemotherapy, which normally shuts her fertility down permanently. Prior to beginning treatment, she undergoes hormone treatments used in other infertility treatments to enable her to release as many eggs in a single cycle as possible. She then freezes the harvest of eggs and keeps them in storage until she is ready to have children. These new reproductive technologies raise complicated issues, not only for the law, but also for morality. What is society to say about these technologies that in many cases redefine the family and turn traditional notions of reproduction upside down? In addition, what does the Bible teach about these new methods of procreation? Since many of these issues are not directly addressed in Scripture, in what way does the Bible speak to them? What principles touch on these methods? What does the biblical concept of the family and children have to say to these new reproductive technologies? Overview of Technologies A wide variety of technologies is available to infertile couples today that range from relatively inexpensive and minimally invasive procedures to very expensive and difficult ones. The following is a brief description of the primary reproductive technologies offered by most infertility clinics. These

clinics offer detailed information on these procedures, their success rates, and their current costs on their websites. 1. Intrauterine insemination (IUI) is performed when the man’s sperm is inferior or there is not enough of it. It is a relatively simple procedure in which sperm from the woman’s husband is inserted into the woman’s uterus artificially rather than through sexual intercourse. A catheter is used to place a number of washed sperm directly into the uterus. This is usually the first infertility treatment a couple will try because it is simple to accomplish, involves no pain for the woman, and is relatively inexpensive compared with other reproductive technologies. Today it is performed frequently in conjunction with the use of high-powered fertility drugs. This creates a better chance at conception—and also a higher risk of major multiple pregnancies (triplets or more). 2. A related procedure is called donor insemination (DI). Here the insemination is performed using the sperm of a donor, someone other than the woman’s husband. The donor is usually anonymous, though with their consent, donors can be identified and connected with the children they father. 3. Women can also donate gametes, called egg donation. This is analogous to sperm donation but is more technologically difficult and expensive. The donor woman is given hormonal stimulation so that she can donate multiple eggs. They are retrieved through minor surgery and given to the infertile couple. The normal use of donor eggs is to combine them with sperm in either gamete intrafallopian transfer or in vitro fertilization. 4. Gamete intrafallopian transfer (GIFT) is usually the next option for an infertile couple if intrauterine insemination fails. In this process the woman is given hormonal treatments that enable her to release multiple eggs in a single cycle. The eggs are removed by a minor surgical procedure. Once the eggs are extracted, the man’s sperm is obtained through masturbation. The sperm are then treated and placed with the eggs in the woman’s fallopian tubes. There the sperm and eggs are in close proximity, and the chances of conception taking place are much higher than in the couple’s intercourse. Fertilization thus occurs inside the woman’s body. The remaining eggs are fertilized by IVF.

5. In vitro fertilization (IVF) is similar to GIFT. The woman receives hormonal stimulation and releases as many eggs as possible. The husband’s sperm are obtained through masturbation and placed in a petridish with the eggs in the infertility clinic’s lab in the hope that most, if not all, of the eggs will be successfully fertilized. Fertilization occurs in the lab, not within the body as with GIFT. The physician in the clinic will normally take up to four embryos (or fertilized eggs) and implant them in the woman’s uterus, in the hope that one or more will successfully implant and the woman will become pregnant. A similar procedure to IVF is called zygote intrafallopian transfer (ZIFT), in which the embryos are implanted in the fallopian tubes rather than the uterus. 6. Surrogate motherhood arrangements are generally neither new nor sophisticated reproductive technologies. What is different about surrogacy agreements is the presence of brokers, contracts, and lawyers in the process of procreation. Genetic surrogacy occurs when the surrogate is inseminated with the sperm of the husband of the couple who contracts her. She conceives, carries, and gives birth to the child and turns over her rights to the child to the contracting couple. The surrogate has a genetic relationship to the child she carries. Gestational surrogacy occurs when the surrogate has no such genetic relationship to the child. She provides the womb but not the egg. The infertile couple has eggs removed, sperm obtained, and IVF performed. The embryos are implanted into the surrogate, and she carries and gives birth to the child and relinquishes all rights to the child. Either of these types of surrogacy arrangements can be done for a substantial fee—the normal practice, known as commercial surrogacy—or for no fee, which is rare. An arrangement without a fee is known as altruistic surrogacy and occurs when a close friend or family member functions as a surrogate solely out of a generous desire to impart “the gift of life.” 7. Intracytoplasmic sperm injection (ICSI) is a more expensive and more reliable way to achieve pregnancy. The procedure essentially involves injecting a single sperm into an egg, using highly technological and specialized instruments. One concern about this procedure is that it might allow less than a fully healthy sperm to fertilize the egg. The healthier sperm are generally the ones that endure the arduous process

of reaching the egg and fertilizing it. ICSI makes it easier for inferior sperm to reach the egg. This may result in a higher incidence of miscarriages, but at this point there are not enough data to determine whether this concern is valid. Moral Parameters for Reproductive Technologies People hold a wide spectrum of views regarding the morality of technologically assisted reproduction. Most in the infertility industry reflect the autonomy-based culture and hold that the end of achieving a family makes almost any technological option morally acceptable. By contrast, some are very restrictive in what is morally acceptable, such as the Roman Catholic Church, which prohibits virtually all technological assistance. Others have more moderate restrictions, such as limiting the use of technologies to those that use the genetic materials of husband and wife. Another way to put this is to compare the technological options to stops on a train route. Some insist that one ought not get on the technological train at all. Others argue that one need not get off the technological train anywhere on the line. Still others maintain that though boarding the technological train is acceptable, there are stops where morality requires that they get off the train. The Donor Sibling Registry The Donor Sibling Registry (DSR) is a private, nonprofit vehicle to assist people who were conceived using donor eggs, sperm, or embryos in contacting their genetic “parents” and siblings. For many years gamete donation operated under anonymity, in which it was very difficult for children conceived in this way to make contact with those with whom they shared genetic ties. Both donors and recipients can register on the site and thus be available for mutually desired contact. The site claims to have facilitated the connection of over four thousand half siblings and/or donors. It may be that someone has many more half siblings than they thought, since their sperm donor may have donated multiple times. The registry also recommends sperm banks that are receptive to the needs of recipient families to contact their donors. Some countries have a national registry

sponsored by the government, and others require that donors’ identity be available for those recipients who want to seek them out. Predictably, in those areas, the number of donors has fallen off sharply. It seems apparent that anonymity is important to many donors, who will not donate without such assurances.*

In approaching this subject in general, we should be aware that the use of technology in creating families has changed the language with which the culture describes children and childbearing. For centuries, creating families has been called procreation, which refers to the way in which children are brought forth in partnership with God through the loving embrace of a husband and a wife. By contrast, today the culture more commonly refers to starting families as reproduction. This is a more product-oriented view of children and families and comes from the use of technology in producing children today. It is not clear that children are necessarily reduced to commodities or products as a result of using technological options to achieve pregnancy, but it is an interesting shift in how this process is described, and some do clearly suggest that children can be analogous to commodities, with traits and gender specifications of the parents met by using various technologies.1 Two fundamental questions are raised by all these creative technological methods of conceiving a child. The first is whether any artificial means of procreation should be used at all. If the answer to that question is no, the discussion of these technologies is essentially over. Infertile couples would thus have three options: (1) they could continue to try to achieve conception naturally; (2) they could opt for adoption; or (3) they could accept childlessness as their calling. If the answer to this first question is yes, that raises the second question, which presents an even more complicated issue: Is it morally legitimate to use third-party contributors (of eggs, sperm, or womb) in the process of procreation? In other words, are the technologies that require sperm, egg, or womb donors morally legitimate? Or are the only legitimate technologies the ones that use the genetic materials of husband and wife? Let’s back up a bit from our fundamental questions and think about the general virtues and principles that we need to take into account in order to

properly reflect on the myriad of procreative possibilities these new technologies make available. Of course, no technological ways to procreate children existed when the Bible was written. Although surrogate motherhood was practiced throughout the ancient world, it would have been difficult for Scripture to directly address technologies that did not exist until the present day. However, more general principles and virtues of the Bible can and do apply to these technologies. It is not always easy to determine how these apply, and there may be room for legitimate disagreement among people committed to biblical authority. Perhaps a helpful way to view the contribution of the Bible in this area is to view the various key biblical principles and virtues as “fence posts” that set the parameters for procreation. Any technology that is outside the parameters is problematic, and inside the “fence” of biblical principles and virtues there is freedom for couples to make their own decisions. In establishing our parameters, we need to begin with the purpose of technology from a theological perspective. For the most part, technological innovations that clearly improve the lot of humankind and help alleviate the effects of the entrance of sin into the world are considered a part of God’s common grace, or his general blessings on creation. That is, medical technology is God’s good gift to human beings. That is our first fence post that helps set parameters for reproductive technologies. As a part of creation and the mandate given to exercise dominion over the earth (Gen. 1:26), God also gave humankind the ability to discover and apply all kinds of technological innovations. This would be particularly true of technologies that enable the human race to fulfill its mandate to multiply and fill the earth. It does not follow, of course, that humankind has the responsibility to use every bit of technology that has been discovered; all of them must be assessed individually. But in general, God’s wisdom is embedded in the world, and through general revelation he has given human beings the ability to uncover what he has revealed in his world (Prov. 8:22–36). It would appear that many of the reproductive technologies in question fit under the heading of general revelation and common grace; whether they should be used depends on whether such a use violates a more specific biblical principle or virtue. Or to put it differently, if the use of a specific technology steps outside the parameters at some other point, then that would be morally

problematic. Infertility is clearly one of the effects of the general entrance of sin into the world, analogous to most other diseases that render a part of the body or system nonfunctional. That is not to say that infertility is the result of a specific sin that the couple could identify. There is no biblical reason why medical technology in general cannot be used to treat infertility or a disease of the reproductive system in the same way that medical technology treats malfunctions of the heart, liver, kidneys, or other organ system. Thus, to answer our first fundamental question, we must look to the purpose of medical technology. What we find in the Bible is a general optimism about medical technology as part of the mandate to establish dominion over the earth. There does not seem to be any good reason to suggest that an infertile couple cannot board the technological train at all. That does not mean that all stops are morally acceptable, only that some technological options are morally appropriate. One significant challenge to this first fence post is the official Roman Catholic Church teaching on procreation. Catholic teaching accepts the high place for medical technology but not its application to reproductive technologies. The Catholic tradition has emphasized the continuity between normal sexual relations in marriage, procreation, and parenthood. There is a God-designed, natural continuity between sex in marriage, conception, pregnancy, childbirth, and parenthood. Every sexual encounter has the potential for conception, and every conception has the potential for childbirth and parenthood. This is why sex is reserved for marriage and why Catholic tradition makes little room for any reproductive technology that would interfere with a natural process that is the result of creation. The 1987 official Catholic statement on reproductive technology puts it this way: “The procreation of a new person, whereby the man and the woman collaborate with the power of the Creator, must be the fruit and the sign of the mutual self-giving of the spouses, of their love and fidelity…, in marriage and in its indissoluble unity [is] the only setting worthy of truly responsible procreation.”2 In other words, only in marriage is it morally legitimate to procreate children. A further statement clarifies the unity of sex and procreation, thereby ruling out most technological interventions for infertile couples: “But from a moral point of view procreation is deprived of its proper perfection when it is

not desired as the fruit of the conjugal act, that is to say, of the specific act of the spouses’ union…, the procreation of a human person [is to be] brought about as the fruit of the conjugal act specific to the love between persons.”3 In other words, in Catholic teaching, there is a unity between sexual relations and procreation. Procreation cannot occur apart from marital sexual intercourse, and every conjugal act in marriage must be open to procreation as the natural result of God’s creation design.4 To put it another way, every time a couple has sex in marriage, the unitive, that is, the “one-flesh” aspect and the procreative aspect, or openness to procreation, must be present. That is why in Catholic teaching, technology cannot replace normal sex in the process of procreation. One cannot have procreation without sex and sex without openness to procreation. Catholic teaching does not rule out all reproductive technologies but makes an important distinction between a technology that assists normal intercourse and one that replaces it in the process of trying to conceive a child. Anything that assists sex is considered a part of God’s wisdom that can be utilized in reproduction, consistent with its acceptance of medical technology in general. The important aspect is that the unity of sex and procreation is maintained. More specifically, this means that conception must occur according to its intended design. The movement of genetic materials may be assisted, but use of technology may not replace normal intercourse. For example, fertilization must always occur inside the body, and masturbation may not be used as a substitute for sexual relations in order to collect sperm outside the body to be inserted into the womb. In assessing the Catholic view, it seems ironic and arbitrary that Catholic teaching would view medical technology in general as part of God’s blessing, consistent with the notion of general revelation, but significantly restrict its use in the area of procreation. As mentioned above, there does not seem to be any reason not to view infertility in a way analogous to other diseases and organ failures. If infertility is indeed a result of the general entrance of sin into the world, then it is not clear why medical technology cannot be applied to infertility. Just because reproductive technologies enable couples to create a child, in contrast to other medical technologies, is no reason per se to reject some technological assistance in procreation. Further, it is not clear that the Bible requires that the unitive, or one-flesh,

aspect of sex and the procreative aspect always go together. For example, the Song of Songs celebrates the beauty and intimacy of sex in marriage, and appears to treat the unitive element of sex as an all-sufficient end in itself. And in the New Testament, the apostle Paul urges married couples to devote themselves to regular sex so that they will not be tempted to look outside the marriage relationship for the legitimate end of sexual pleasure to be satisfied (1 Cor. 7:1–5). It seems that Paul is treating the unitive element of sex as a sufficient end such that couples should be sure to provide it for each other regularly. The second and equally foundational fence post in the Bible is that procreation was designed to occur within the context of a stable, heterosexual, permanent, monogamous marriage. Children are to be born into families constituted of a husband and wife who love each other, live together, and commit themselves to care properly for their children. Continuity between procreation and parenthood is considered the norm for family life. In Genesis 1–2, God commanded that Adam and Eve “be fruitful and multiply” (Gen. 1:28 KJV). This command is set in the context of the broad, panoramic account of creation in Genesis 1. However, the complementary account of creation in Genesis 2 contains helpful details that enable us to “read between the lines” in the overarching summary account of Genesis 1.5 Genesis 2 speaks not only of the creation of human beings but, more significantly, of their relation to each other and to God. In Genesis 1:26, God declares his intention to create human beings, of male and female genders. Genesis 2:4–25 follows chronologically and with additional details. Among those details are the distinction between male and female, the male’s aloneness and desire for a mate, and the subsequent creation of the woman. After she is formed and presented to the man, God instructs them about their life together.

Genesis 1:26–27 (Genesis 2:4–25) Genesis 1:28 Creation of humankind Details on creation of woman/marriage “Be fruitful/multiply”

In Genesis 2:24, God commands that men and women are to leave their families of origin, be united to each other, and experience unity in all aspects

—emotional, spiritual, and physical. It is here that God formally institutes marriage and Adam and Eve become the first officially married couple in creation. The way in which Genesis 2:24 is quoted in the New Testament suggests that whenever it is used, the verse refers to married couples (Matt. 19:5; Eph. 5:31).6 In addition, the term “leave” is used to suggest that, against common practice in the ancient world, a man and woman who intend to be married actually separate themselves from their families of origin and form their own family unit. Further, the concept of “one flesh” involves a sexual union that the rest of Scripture makes clear is reserved for married couples. This is underscored by the use of “bone” and “flesh” in Genesis 2:23, the terms used by Adam to describe the woman. The use of these two terms in conjunction normally refers to family relationships (Gen. 29:14; Judg. 9:2; 2 Sam. 5:1; 19:12–13; 1 Chron. 11:1). It would appear that the use of the terms in Genesis 2:23, when Adam declares that Eve is his bone and flesh, suggests that the normative family is in view in the creation account. If we place the more specific account of the creation of male and female from Genesis 2 back into the broad overview found in Genesis 1, the command to procreate (“be fruitful and multiply,” v. 28 KJV) is given to Adam and Eve in the context of their leaving, cleaving, and becoming one flesh (Gen. 2:24). That is, it is within the context of their marriage. Although it is true that Adam and Eve are representative of the male and female of the species, it is clear that this creation model sets the pattern for permanent, monogamous, heterosexual marriage, and procreation within that context as the norm. Not every male and female must be joined in marriage (1 Cor. 7:25–28), but marriage is only to occur between males and females, and procreation is to occur within those confines. What makes this second parameter quite complicated is the way this creation model is followed in the rest of the Old Testament. God appears to have allowed a number of exceptions to the general model set up at creation. For example, he allowed divorce, which breaks the permanent aspect of marriage suggested by the notion of cleaving to each other. In addition, surrogate motherhood is used by two of the patriarchs, Abraham in Genesis 16—which was disastrous—and by Jacob in Genesis 30—which is treated in a more morally neutral way. Further, polygamy was allowed for reasons that

are not entirely clear.7 God allowed these exceptions to the general rule even though they were deviations from the creation norm. Of course, simply because they occurred historically does not mean that they can occur today. But the point of mentioning them is to indicate that God did allow exceptions to the creation norm. If so, then might other exceptions, such as third-party contributors to procreation, be similarly allowed? In the New Testament the creation norm carries great weight. This underscores the fact that things like divorce, surrogacy, and polygamy were allowed but never sanctioned and never accepted as the best option. In fact, polygamy comes to be explicitly prohibited in the New Testament. In general, when the New Testament writers appeal to the model set up by God at creation, they consider it to carry considerable weight. For example, when Paul argues against homosexuality in Romans 1, he is appealing primarily to God’s creation design for sexuality. In addition, when Paul addresses the roles of women in the church, he considers his appeal to Genesis 1–2 sufficient to end the discussion (1 Tim. 2:12–15). This is also the way in which Jesus treats the creation model when he addresses the subject of divorce (Matt. 19:1–9). This suggests that the creation norm carries great weight. Simply pointing out exceptions to the general rule does not nullify the importance of the creation norm. The weight of biblical teaching suggests that third-party contributors are not the norm for procreation. Scripture looks skeptically on any reproductive intervention that goes outside the married couple for genetic material. That would mean that technologies such as donor insemination, egg donation, and surrogate motherhood raise troubling issues and come very close to falling outside the parameters. But if pressed, the Bible does not appear to be sufficiently clear to prohibit all third-party contributors in every case. Technologies that utilize the gametes of a married couple, such as gamete intrafallopian transfer, in vitro fertilization, and intrauterine insemination are generally morally acceptable and clearly fall within the second parameter. Prohibiting third-party contributors would be a prima facie moral rule. Options that would appear to fall more clearly outside of this parameter would be bringing children into “single mother by choice” families or gay/lesbian families. Refusing Infertility Treatments to Single

Women In a case still moving through California courts, two San Diego obstetricians are being sued for refusing to administer intrauterine insemination for a single woman. Dr. Christine Brody and Dr. Douglas Fenton of the North Coast Women’s Care clinic refused IUI for their patient Guadalupe Benitez for religious reasons and referred her to another clinic, where she successfully conceived and gave birth to her three children. It has since come out that she is a lesbian, and her cause has been taken up by a variety of gay/lesbian/transgender organizations, namely Lambda Legal, which represents Benitez in her lawsuit. The physicians in the case insist that Benitez’s sexual orientation had nothing to do with their refusal of treatment. Rather, it was the fact that she is unmarried. And both Benitez and her partner testified in the initial trial that the physicians were clear up front with them that the issue was that they were unmarried, not that they were lesbian. The sexual orientation of the couple does seem to obscure the central issue in this case—whether the physicians have the right to refuse IUI and, by extension, other infertility services to unmarried individuals, regardless of their sexual orientation. The lower court ruled in favor of the physicians, whose religious freedom was upheld. But Lambda Legal has appealed to the California Supreme Court.*

A third clear fence post is the moral status of the unborn, established in chapter 5. If it is clear that from conception forward a full person exists, then fetuses and embryos must be protected in any infertility procedure. This means that any technology that involves discarding embryos or terminating pregnancies falls outside the parameters the Bible has set up. However, it is not clear that freezing embryos per se is outside the fence, particularly if they are successfully thawed, which most often is the case. The dignity of the unborn must be safeguarded. A fourth parameter is the notion of adoption as a legitimate rescue operation, fulfilling the biblical virtue of compassion for the most vulnerable. Adoption is the figure of speech used repeatedly in the Bible to describe the believer’s relationship to God (Eph. 1:5); and the virtue that indicates that a person’s faith is genuine is a willingness to care for widows and orphans,

figurative of the most vulnerable in the society (James 1:27). Any view of procreation that downplays adoption as an alternative or even rules it out would appear to fall outside the biblical parameters. This would also include new ways of adopting children, such as adopting embryos that are left over from in vitro fertilization. Additional parameters that help put boundaries around the use of reproductive technology include the virtue of trust in God’s sovereignty. As applied to the desire of infertile couples to have a child, this fence post is critical and can be applied to all reproductive technologies, regardless of where the genetic materials come from. That is, dependence on any technological option can undermine a couple’s trust in God’s sovereignty if it is motivated by desperation or becomes an obsession for the couple. An additional virtue that comes out of this trust in God is that of contentment, as difficult as that is for infertile couples to hear. But the Bible is clear that we are to be content regardless of our station in life (1 Cor. 7:17–28). This does not mean that couples are to accept their infertility passively nor that they are prohibited from using any technological means. Rather, it suggests that use of any reproductive technology could fall outside the parameters if its use is motivated by desperation. The way the Bible views children is an important fence post that helps establish the parameters for procreation. Throughout the Bible children are viewed as a gift from God (Ps. 127:3–5) to be received open handedly and without specifications. The virtue of gratitude naturally accompanies this important truth about children and suggests that specifying gender or choosing traits of children are troublingly close to falling outside the biblical boundaries. Moral Issues in IUI, GIFT, and IVF Just because it is clear that technologies that use the genetic material of husband and wife are acceptable, that does not mean that every use of these technologies is morally appropriate. The standard of practice in infertility clinics for some of these procedures raises troubling moral problems, some of which can be managed better than others. Intrauterine insemination using the husband’s sperm (sometimes called artificial insemination by husband or AIH) would not appear at first glance to

present any difficult moral issues. If a simple insemination occurs, that would be true. Even for Catholic teaching, this is not problematic if sperm is obtained through normal sex instead of masturbation. However, IUI is increasingly being done in conjunction with multiple-ovulation drugs that are used with GIFT and IVF. That creates a risk of the woman becoming pregnant with major multiples. In the average case, eight to ten eggs are hyperstimulated to be released in a given cycle, but with IUI done in this way, the eggs are not harvested but left in the womb to be fertilized. With GIFT and IVF one can control the number of embryos in the womb. But that is not the case with IUI when done with potent fertility drugs. In that case the woman runs the risk of having to contemplate selective termination of some of the pregnancies, thereby moving outside the parameters set out above. Since the unborn are persons, reducing the number of pregnancies is the moral and actual equivalent of abortion, which is ending the life of an innocent person. Couples who put themselves in this position risk very difficult decisions, and to avoid such a scenario, IUI should be performed without these strong fertility drugs. Gamete intrafallopian transfer similarly presents no inherent moral dilemmas at first glance. No third party is necessarily introduced into the procreative picture, though it can be done with donor gametes. As with IUI, if sperm is obtained through normal sex, GIFT can even be done consistently with official Catholic teaching. The moral difficulties with GIFT lie in its connection with IVF. After the initial procedure, in which there are likely leftover unused eggs, those eggs are normally fertilized in vitro and held in storage in case the initial GIFT procedure does not produce a pregnancy. If that is the case, the remaining embryos are thawed and implanted, thus avoiding substantial cost to start the process over again. But if the initial procedure succeeds, the remaining embryos can become “leftover” and unneeded. In vitro fertilization simply means fertilization “in glass,” as in the glass container of a test tube or petri dish used in a laboratory. Because the procedure is so expensive, all of the eggs that are harvested are fertilized in the lab. This is done so that if none of the fertilized embryos are successfully implanted, a second round of implantation of the embryos in storage can occur without much additional cost or lost time, since to harvest eggs again

would involve a substantial financial cost. Normally, but not always, three embryos maximum are implanted in the woman’s uterus. If more than one embryo does successfully implant, the couple may end up with more children than they originally intended. Twins and even triplets are not uncommon for couples who use IVF. In rarer cases more than three embryos are implanted, which may result in major multiple pregnancies. In order to keep the procedure as cost effective as possible and to maximize the possibilities of a successful implantation, embryos are frozen in storage to be used later if the first attempt fails. Thus, if the first round of implanted embryos results in a sufficient number of children for the couple, their childbearing days may be over, and they may have a number of embryos left over in storage that they do not intend to use. Embryos are easily kept in storage for at least five years, and the longest storage time on record that produced a successful birth is thirteen years. In some cases, more embryos successfully “take” implant than the woman is able to carry without endangering her health and at times even endangering her life. It may also be that she simply becomes pregnant with more children than she and her husband desire to raise. What to do with frozen embryos if they are not needed raises significant questions about the moral status of the embryo.8 Most people recognize that with its potential to become a fully developed baby, the embryo cannot be seen as morally neutral and regarded as a clump of cells. Thus the alternatives would appear to be to keep the embryos in storage indefinitely (at a nominal cost), to destroy them, to allow the couple to donate them to another infertile couple, or to use them for experimental purposes. It is possible to freeze a woman’s eggs once harvested, but it has been difficult to thaw them successfully. However, the technology is improving, and more clinics are offering egg freezing for women who wish to delay childbearing, and egg freezing may become more routine for couples who desire to avoid having leftover embryos. Once this becomes widely offered, it could render the problem of leftover embryos a moot point. For those who view personhood as beginning at conception, the disposition of these embryos presents a complex moral dilemma. Of course, if one views person-hood as acquired at some point later during pregnancy, then embryos are indeed just cells and may be disposed of with no moral

problem. But if the right to life is acquired at conception, then destroying embryos or using them in experiments is very problematic. Destroying embryos outside the body would appear to be the moral equivalent of abortion, as would donating embryos for research or stem cell harvest, since most experimentation on the embryo and harvest of its stem cells would result in its destruction. Storing the embryos indefinitely only postpones dealing with this issue. Allowing the embryos to die a natural death when they could easily be spared is morally no different from abortion. That leaves donation of the embryos to another infertile couple or implantation of the embryos by the couple themselves as the only viable alternatives. Clearly the couple implanting the embryos themselves is the best of the options, since it maintains the continuity between procreation and parenting. But donation of embryos is acceptable too. Some may see this as problematic since it involves a separation of the biological and social roles of parenthood that many believe to be a significant part of the biblical teaching on the family. However, it is possible to view embryo donation in a way that is analogous to adoption, as a preimplantation adoption in which the couple who contributed the genetic materials to form the embryo consent to give up parental rights to their child after implantation instead of after the child’s birth. Though this is emotionally difficult, particularly for multiple embryos, the continuity between gestation and parenting that the “adoptive” couple would have may make it better for the child than traditional adoption, in which the child would be taken from its mother at birth. It would seem that a guiding principle for IVF is that all embryos created in the lab deserve an opportunity to be implanted, either with the couple who “created” them or in adoption by another infertile couple. A second problem arises not from the failures of implantation, but from its successes. Occasionally a woman is left with more developing embryos than she can carry to term without risk to her health and life, or with more children than she and her husband are willing to raise. In these cases the woman, her husband, and her doctor have very difficult decisions to make. The doctor will normally recommend what is called selective termination of one or more of the developing embryos. This is done at times for the sake of convenience, when the couple becomes pregnant with more children than they are willing to raise. At other times physicians will recommend this out

of a genuine concern for the well-being of the unborn children. Though there are many anecdotal cases of multiple pregnancies turning out well, in many instances when a woman is pregnant with four or more unborn children, she and the fetuses are at risk for a variety of complications. In these cases the doctor is faced with the decision of which one(s) to terminate and how to make that decision. If the mother’s life is clearly at significant risk in carrying all the fetuses to term, then it would appear justified to terminate one or more of the fetuses in order to save the life of the mother. This is analogous to cases in which abortion is justifiable when carrying the pregnancy to term would put the mother’s life at grave risk. Of course, those who do not hold to such a high view of the sanctity of unborn life would see no problem with the woman terminating the pregnancy for most reasons, consistent with the law of the land under Roe v. Wade. But even for people who do not fit into the pro-life camp, the agony of making such painful decisions must surely be considered prior to utilizing IVF to alleviate infertility. The general principles that should guide a couple’s use of GIFT and IVF are that all embryos created in the lab should have a reasonable chance at maturing. That is, they should all be implanted, either in the woman who initiated the procedure or in an adoptive mother. Embryo adoption agencies are springing up across the United States for the purpose of facilitating donation of embryos rather than seeing them destroyed, as is the case normally when couples are finished with infertility treatments.9 No embryos should be discarded or be subject to experimentation. Nor should they be allowed to die natural deaths in the storage section of the lab. The couple should inform the clinic that they want to minimize the number of leftover embryos. That will involve limiting the number of eggs fertilized. This will likely mean only one attempt at conception, rather than keeping embryos in storage for future attempts. If every egg could be fertilized successfully in the lab, then the couple could simply tell the clinic that they wanted three eggs fertilized, possibly four, and that’s all. They would be fertilized and implanted, and none would be left over. Of course, if the couple did not become pregnant, they would have to start the procedure over again, greatly increasing the cost. But one never knows in advance how many eggs will successfully fertilize, which makes the procedure tricky for the couple. A couple could allow for some eggs that will not fertilize, and if there are

leftover embryos, they will need to be committed to making sure that all of the embryos have an opportunity for implantation. Further, the couple should not implant more embryos than can be safely carried. Nor should they implant more embryos than children they wish to raise, should all of the implanted embryos turn into pregnancies. Under no circumstances should a couple authorize implantation of embryos that might make selective termination an option. Moral Issues with Surrogate Motherhood Undoubtedly, surrogate motherhood is the most controversial of the new reproductive technologies. In the majority of cases, the surrogate bears the child for the contracting couple, willingly gives up the child she has borne to the couple, and accepts her role with no difficulty. In those cases the contracting couple views the surrogate with extreme gratitude for helping their dream of having a child come true. The surrogate also feels a great deal of satisfaction, since she has in effect given a “gift of life” to a previously infertile couple. But in some cases that have been well publicized in the media, the surrogate wants to keep the child she has borne and fights the couple who contracted her for custody. The Old Testament records two incidents of surrogacy (Gen. 16:1–6; 30:1–13), and it appears that use of a surrogate to circumvent female infertility was an accepted practice in the ancient Near East.10 Today surrogacy does not normally involve any sophisticated medical technology. Normally conception is accomplished either by artificial insemination for a genetic surrogacy or by IVF for gestational surrogacy. What made surrogacy novel at its inception was the legal context in which reproduction occurred. The presence of lawyers, detailed contracts, and even the idea of legal representation for the yet-to-be-born child were the new elements in the previously very private area of procreation. The Morality of Surrogate Motherhood Significant debate has taken place not only over the legality of surrogacy, but also over whether it is a morally justifiable way to procreate a child. Viewed from the perspective of the parameters for procreation that come

from the Bible, surrogacy can be viewed as analogous to other third-party contributor situations, with some other complicating features. Thus there is a prima facie principle against third-party contributors that surrogacy would appear to violate. In terms of public policy, the case both for and against surrogacy is made on broader, nontheologically oriented grounds. This is the aspect of reproductive technologies in which the law has been most involved. The Baby M Surrogacy Case In a made for TV miniseries scenario, William Stern had a special interest in fathering a child to whom he was genetically related, since he was the only living member of his bloodline, most of his relatives having been killed during the Holocaust. His wife, Elizabeth, had a mild case of multiple sclerosis and believed that pregnancy would be a significant health risk. The Infertility Center of New York matched the Sterns with Mary Beth Whitehead, who would act as a surrogate mother. She was a woman of moderate means with two children already. Regretting her decision to give up the child to the Sterns, Whitehead sued for custody after the child was born. The Sterns allowed her to take the child for a week, after which time she fled the area with the child. The police later recovered the child by force in Florida and returned the child to the Sterns. The New Jersey Supreme Court ruled that surrogacy contracts were baby selling, and that genetic parents have a fundamental right to participate in raising their children. Whitehead did not receive custody, however, because the justices held that the child’s best interests would be served by custody going to the Sterns.

Much of the discussion of surrogacy is set in the broader context of a long tradition in the Western world of procreative liberty that gives couples the freedom to make their own decisions about childbearing and child rearing. The family has historically been a place in which the right to privacy has reigned, and thus, for the most part, family decisions have been beyond the scrutiny and intervention of the government. Laws have been crafted to

ensure as much freedom as possible for parents to make choices concerning their children, and the Supreme Court has upheld procreative liberty in a variety of cases.11However, simply because the law may allow for procreative arrangements such as surrogacy, it does not follow that surrogacy is a morally justifiable way to conceive a child. Is Surrogacy Baby Selling? Both commercial and altruistic surrogacy raise moral issues, though some of the concerns do not apply to altruistic surrogacy. The most serious objection to commercial surrogacy is that it reduces children to objects of barter by putting a price on them. Opponents of surrogacy insist that any attempt to deny or minimize the charge of baby selling fails, and thus surrogacy involves the sale of children. Surrogacy violates the Thirteenth Amendment to the Constitution, which outlawed slavery, because it constitutes the sale of human beings. It violates commonly and widely held moral principles that safeguard human rights and the dignity of human persons, namely, that human beings are made in God’s image and are his unique creations. Persons are not fundamentally things that can be purchased and sold for a price. The fact that proponents of surrogacy try so hard to get around the charge of baby selling indicates their acceptance of these underlying moral principles as well. Surrogacy proponents are sensitive to the charge that paying a surrogate a large amount of money for bearing a child for another couple is baby selling. They insist that the fee only pays for gestational services rendered and does not constitute the sale of a child. They argue that it is only fair for a woman to be compensated for the time, risk, and sacrifice that pregnancy entails. Just as it is legitimate to pay surrogate childrearers in a day-care setting, proponents insist that it should be legitimate to pay surrogate childbearers. However, it would appear that the fee paid to the surrogate, which is beyond her expenses, is for much more than childbirth services rendered. What really counts in a surrogacy arrangement is not only the successful birth of the child, but also the transfer of parental rights from the surrogate to the infertile wife. She must adopt the child for the “deal to be done.” In surrogacy cases in which the surrogate supplies both the egg and the womb, she is the legal mother of the child.12 In cases of gestational surrogacy, in

which motherhood is up for debate, the surrogate is not recognized as the legal mother, and the legal charge of baby selling would not apply. To be consistent, if the fee paid to the surrogate is only for gestational services rendered, the surrogate would be paid the same amount whether or not she turned over the child to the contracting couple. If the fee only pays for childbirth services, it is hard to see how a couple could take the surrogate to court to get the child, since the surrogate would have fulfilled her part of the contract once the child was born. In addition, if she miscarried at some point in the pregnancy, her fee should be prorated over the number of months that she performed a gestational service. But this would make surrogacy very risky for the contracting couple. There would be no guarantee that the couple would get a baby under a “fee for the gestational services” scheme. This would likely be a deterrent to couples wanting to utilize surrogacy. Proponents of surrogacy will answer the baby-selling charge by contending that the natural father cannot buy back what is already his. But the child is not all his. At best, he can only claim the equivalent of joint tenancy in a piece of property, in which he “buys out” his partner, the surrogate, which is still baby selling.13 Thus the debate is not whether human beings should be bought and sold; rather, it is over whether commercial surrogacy constitutes such a sale of children. If it does, most would agree that the case against surrogacy is quite strong. As the New Jersey Supreme Court put it in the Baby M case, “There are, in a civilized society, some things that money cannot buy…. There are values … that society deems more important than granting to wealth whatever it can buy, be it labor, love or life.”14 Another reply to the charge of baby selling is to admit that children are being sold but that the circumstances are so different from black-market adoptions that it does no harm to exchange parental rights for money. The laws that prevent payment to birth mothers were designed to prevent blackmarket adoptions, in which birth mothers were exploited based on their financial need and in which the well-being of the children was not considered the highest priority. Surrogacy is a completely different situation. Here the natural father is also the adopting father, and surrogacy results from a planned and wanted pregnancy as opposed to an unwanted pregnancy. Thus the child is not going to a stranger but to a genetic relative, and the surrogate

is not coerced into making a decision she will later regret. Opponents of surrogacy respond that the differences between blackmarket adoptions and surrogacy are overstated. For example, there is little screening of the contracting couple done in order to ensure that they are fit parents and that the best interests of the child are being maintained. In addition, the element of coercion is not entirely absent from a surrogacy arrangement since it is quite possible that the surrogate could be coerced by the contract into giving up a child that she may end up wanting to keep. Further, given the desperation of the contracting couple to have a child, since they usually do not resort to surrogacy until all other means have been exhausted, it leaves them open to exploitation by the surrogacy brokers. Thus, to say that the environment surrounding surrogacy is free from coercion is not accurate. Even if the child is treated well and the arrangement comes off without coercion, the problem of baby selling remains. By analogy, during the Civil War era, even if there were cases in which slaves were treated well and considered like family members, the fact remained that they had been bought and sold and had become objects of barter. The circumstance in which such barter takes place is irrelevant according to opponents of surrogacy. Potential for Exploitation A second area of concern about surrogacy is the potential for commercial surrogacy to become exploitative. The combination of desperate infertile couples, low-income surrogates, and surrogacy brokers motivated by profit raises the prospect that both surrogates and contracting couples can be exploited. But statistics on hundreds of surrogacy arrangements to date indicate that this potential for exploitation has not yet materialized. Most surrogates are women of average means,15 not destitute but also clearly motivated by the money. The fee alone should not be considered exploitation, but an inducement to do something that the surrogate would not otherwise do. Money functions as an inducement to do many things that people would not normally do without being exploitative. However, this does not mean that the potential for exploitation should not be taken seriously. Should surrogacy become more socially acceptable and states pass laws making it legal, it is not difficult to imagine the various ways

in which surrogacy brokers would attempt to hold costs down in order to maximize their profit. Some people have suggested that those with financial need actually make the best candidates for surrogates because they are the least inclined to keep the child produced by the arrangement.16 For example, one surrogacy broker suggested that the surrogates from other countries would only receive the basic necessities and travel expenses for their services. Revealing a strong bias toward exploitation of the surrogates, he said, “Often they [the potential surrogates] are looking for a survival situation —something to do to pay for the rent and food. They come from underdeveloped countries where food is a serious issue.” But he also added that they make good candidates for surrogacy. “They know how to take care of children…, it’s obviously a perfect match.”17 He further speculated that perhaps one-tenth of the normal fee could be paid these women, and it would not even matter if they had some other health problems, as long as they had an adequate diet and no problems that would affect the developing child.18 It is not difficult to see the potential for exploitation of poor women in desperate circumstances, a potential that may come about as surrogacy is outsourced to other parts of the world. Turning a Vice into a Virtue? One of the most serious objections to surrogacy applies to both commercial and altruistic surrogacy. In screening women to select the most ideal surrogates, one looks for the woman’s ability to easily give up the child she is carrying. Normally the less attached the woman is to the child, the easier it is to complete the arrangement. But this is hardly an ideal setting for a pregnancy. Surrogacy sanctions female detachment from the child in the womb, a situation that one would never want in any other pregnancy. Thus surrogacy actually turns a vice, the ability to detach from the child in utero, into a virtue. Should surrogacy be widely practiced, bioethicist Daniel Callahan of the Hastings Center describes what one of the results would be. “We will be forced to cultivate the services of women with the hardly desirable trait of being willing to gestate and then give up their own children, especially if paid enough to do so…. There would still be the need to find women with the capacity to dissociate and distance themselves from their own child. This is not a psychological trait we should want to foster, even in

the name of altruism.”19 Outsourcing Surrogacy Following the trend of looking overseas in order to attain services at lower costs, couples contemplating surrogacy are more frequently looking to outsource that service to India, employing very poor women for a fraction of the cost of a surrogate in the United States. An Indian surrogate costs around $6,000 to $10,000 compared with the average arrangement in the United States costing roughly $40,000 to $50,000. These desperately poor women make approximately ten to fifteen years’ income in one surrogacy contract, often enabling them to buy houses for their families that they would never be able to buy otherwise. This is one of a number of aspects of what is coming to be called “reproductive tourism,” in which infertile couples come to other parts of the world in search of donor eggs and rental wombs. Some countries, such as France, have outlawed commercial surrogacy, insisting that the womb is not something for rent or sale to the highest bidder. Other countries allow it virtually unregulated and see it as a valuable market transaction—the couples want the babies and the surrogates need the money.* The Role of the Contract Another serious problem with commercial surrogacy might also apply to altruistic surrogacy. In most surrogacy contracts, whether for a fee or not, the surrogate agrees to relinquish any parental rights to the child she is carrying to the couple who contracted her services. Should she have second thoughts and desire to keep the child, under the contract she would be forced to give up her child. Of course, this assumes the traditional definition of a mother, the woman who gives birth to the child. It is a new phenomenon to have one woman be the genetic contributor and a different woman be the one who carries the child. In some cases of surrogacy, the surrogate provides both the genetic material and the womb. Thus by any definition she is the mother of the child. To force her to give up her child under the terms of a surrogacy contract violates her fundamental right to associate with and raise her child.20

This does not mean that the surrogate has exclusive right to the child. That must be shared with the natural father, similar to a custody arrangement in a divorce proceeding. But the right of one parent (the natural father) to associate with his child cannot be enforced at the expense of the right of the other (the surrogate). The problem with allowing the surrogate to keep the child is that it substantially increases the risk to the contracting couple. They might go through the entire process and end up with shared custody of a child that they initially thought was to be all theirs. To many people that doesn’t seem fair. But to others it is just as unfair to take a child away from his or her mother simply because of the terms of a contract. Whether this argument applies to gestational surrogacy is open to debate and turns on how one defines the mother in those arrangements.21 Defining Motherhood How one defines the mother in surrogate arrangements is a critical consideration. According to the law established by court precedent, genetic surrogates are recognized legally as the mother of the children they bear since they have both key biological components of motherhood: the genetic connection and the gestational environment. In cases of genetic surrogacy, the charge of baby selling would be applicable and the contract could not force the surrogate to give up her child against her will. By contrast, in cases of gestational surrogacy, the surrogate is considered by the law as a “human incubator” or a “prenatal babysitter” with no rights to the child she is carrying. Under the law, the surrogate cannot be charged with baby selling since she has no legal rights to the child to whom she gives birth. All the above discussion about baby selling does not apply. Further, she does not have the option of keeping the child because she has no legal rights of association to be protected. Just because there is a consensus in the law doesn’t mean that there is no longer any debate about the definition of motherhood in surrogacy. Some feminists strongly support the rights of gestational surrogates, and others insist that “a deal is a deal” and thus never allow the surrogate to change her mind about keeping the child. This area of the definition of motherhood may be one of those areas in which there is room to agree to disagree, recognizing that a good argument can be made for both key positions.

To be specific, in cases of gestational surrogacy, who should be recognized as the mother—the genetic contributor or the surrogate who is the gestational contributor? The argument in favor of the genetic contributor is the recognition that genetics plays such a key role in determining many of the child’s critical traits and features. Genetics has a powerful influence on who the child becomes. Further, until the embryo is implanted in the womb of the surrogate, there is no debate over who the “owners” of the embryo are. They are clearly the genetic contributors—the couple whose gametes created the child. To recognize the rights of the surrogate would involve the very awkward and cumbersome process of transferring maternal rights to the surrogate at the point the embryo is implanted, so that at the child’s birth, she can then give up maternal rights back to the genetic contributor. It seems much more straightforward to insist that genetics be weighted more heavily than gestation in terms of its influence on who the child becomes. Gestational Surrogacy—Johnson v. Calvert Mark and Crispina Calvert hired Anna Johnson to be the gestational surrogate mother for their child. With no genetic connection to the child she was carrying, she “rented her womb” for nine months for $10,000 plus all medical expenses. Toward the beginning of the seventh month, Johnson started having second thoughts about giving up the child she was carrying. A month prior to the child’s birth, Johnson sued for custody. The court ruled that the surrogacy contract was valid and not inherently exploitative. Since Anna Johnson had no genetic stake in the child, she had no parental rights. Thus exclusive custody of the child was given to the Calverts and no visitation allowed. The judge ruled that the genetic connection took precedence over the fact that Johnson actually gave birth to the child and that the best interests of the child would be served by custody of the Calverts in any case.

However, that implies that the womb is a neutral environment that contributes nothing more than nutrients and shelter. That seems to assume that not much occurs in the womb that shapes who the child becomes. But

that is not the case. We are learning more about the types of influences that the child experiences while in the womb. It is hardly analogous to prenatal babysitting. What happens in the womb is formative for the child, and not just physically, but emotionally and psychologically too. Further, the surrogate, by virtue of carrying and giving birth to the child, would appear to have made a more significant investment in the child. Her “sweat equity” in the child appears to be greater than the genetic contributor’s. Further, the surrogate has the real experience of bonding and relationship with the child, so that if she develops the intention to become the mother over time, it is based on her tangible experience with the child, as opposed to the genetic contributor who can only envision a relationship with the child by the time of birth. It would seem that the case for the surrogate being the mother may be stronger than one would think at first glance. If this is true, then the gestational and genetic surrogates would be situated the same and the charge of baby selling would apply equally to both. But if the genetic contributor is weighted more heavily than the gestational surrogate, then the way the law treats them would be correct—the charge of baby selling would not apply, and the gestational surrogate would have no rights to the child she is carrying. However, some of the other concerns about exploitation and the surrogate distancing herself emotionally from the child still would apply. Toward the Future of Reproductive Technologies Some other reproductive technologies are relatively new and not yet mainstream but may become more popular in the future. These include first, artificial wombs. Physicians and neonatologists who manage high-risk pregnancies are already experimenting with synthetic amniotic fluid to assist prematurely delivered new-borns. This is the first step toward a full artificial womb. Such a development would likely have a major impact on the abortion debate, since it may be possible for a woman to no longer be pregnant without necessarily ending the life of her child. But to have pregnancy devoid of a relationship with the mother may not be in the best interests of the child, since the prenatal relationship is important to the development of a healthy child in the womb. A second more novel technology is gender selection, both by prenatal genetic diagnosis, in which embryos are created through in vitro fertilization

and screened for gender and the desired gender implanted (see chapter 7 for more discussion of this). Sex selection can also be done by sperm sorting (MicroSort) that will enable gender selection prior to conception. Here the sperm is sorted by whether it will produce boys or girls, and only the desired type of sperm is then inserted in the womb by intrauterine insemination. Posthumous Procreation A thirty-five-year-old former professional football player was left brain-dead from an automobile accident. He had been separated from his wife for some time, though not officially divorced. His father was making decisions about his care and authorized organ donation of all useful organs. In the middle of the night, when the organs were being harvested, his estranged wife, who had just heard of her husband’s death, urgently asked for his sperm. The man’s father, not knowing quite what to say to such a request, eventually agreed. His sperm was harvested, and she took a vial of it away with her upon leaving the hospital. The man had left no will and no direction about whether he would have wanted his estranged wife to have his sperm after his death. In a similar case, in order to continue the family lineage, an Israeli man had his sperm harvested after his death at his parents’ insistence, even though he had left no will or any indication of his wishes. Soldier Kevin Cohen was killed in active duty in the Gaza Strip in 2002, and his sperm was extracted shortly after his death, then frozen and stored in the hospital where he had been treated. The hospital refused to release the sperm to the parents, insisting that only a deceased person’s spouse could make such a request. The family sued to have the sperm released, and roughly four years after his death, an Israeli court ruled that the family could use the sperm to continue their lineage. The family appealed for surrogates (more than two hundred women volunteered) willing to both be impregnated with the sperm and raise the child. The family eventually settled on a twenty-fiveyear-old woman whom their son had never met to be the mother of his child.*

Too Old to Be a Mom? With egg donation becoming more popular, it is not just infertile couples who are getting pregnant. Women after menopause are now having children by using donor eggs and treatments to prepare the uterus to give birth. Higher risks are involved, such as caesarean section being necessary and higher rates of pregnancy-induced diabetes, but women in their fifties are now giving birth successfully through egg donation. The oldest woman on record to give birth was a sixty-two-year-old woman named Rosanna Della Corte who became pregnant with the help of Italian infertility physician Dr. Severino Antinori. Some are concerned that there are risks to the child from having older parents, especially if the parents die before the child is grown. But others cite the wisdom and experience that comes from being older parents as a good thing for children. The American Society for Reproductive Medicine discourages postmenopausal pregnancies, but others suggest that such a policy constitutes age discrimination.

Technology is also improving the prospects of posthumous procreation, that is, having children after one’s death. Given medicine’s ability to sustain vital functions after brain death, women can continue to carry pregnancies after brain death is confirmed, and even after an injury or illness leaves them in a permanent vegetative state. In addition, sperm can be harvested after a man’s brain death, analogous with other vital organs being harvested for donation. That sperm can then be used in conjunction with IUI to impregnate a woman who desires to have the child of the recently deceased person. Finally, egg donation is increasingly being used to achieve postmenopausal pregnancies. With egg donation, women in their fifties and sixties are delivering children successfully, though there are questions about the wisdom of having children so late in life. And, of course, human cloning also qualifies as a reproductive technology, which we will discuss in the next chapter.

Conclusion

These new reproductive technologies present some of the most difficult ethical dilemmas facing society today. Given the strong desire of most individuals to have a child to carry on their legacy, it is not surprising to see the lengths to which people will go to have a child that has at least some of their genetic material. People’s desires to have genetically related children will likely ensure a brisk business for practitioners of reproductive medicine, and as a result, there will be an ongoing need for ethical discussion and decision making in this area.