When Your Grandma is Also Your Mom

Surrogate parenthood has helped many struggling parents to conceive, but when it comes to ethics, the child's interests must come first.

A few days ago, I was asked what I thought about Kristine Casey – a 61-year-old woman who recently gave birth to her grandson. Grandmother Casey acted as a surrogate mother for the child of her daughter and son-in-law.

My gut reaction was that this was ethically wrong. But was that reaction correct, and could it be justified?

The first question we must ask is this: is surrogate motherhood, in general, ethically acceptable? For a variety of reasons I believe the answer is no: surrogate motherhood breaches children’s human rights regarding their coming-into-being; it confuses family roles and relationships; it exploits poor women; and its international commercialization has opened us up to dehumanizing scenarios, such as FedEx-ing frozen embryos to “warehouses” of surrogate mothers in developing countries.

But, as is so often the case when trying to determine about the ethics which should govern human reproduction – and especially regarding reproductive technologies – there is no consensus. And I know from experience that it is very difficult to argue against access to reproductive technologies, when faced with a woman unable to carry her and her husband’s child who is sobbing and distraught that payment of surrogate mothers has been prohibited. When she says, “I can’t believe you would disagree with our doing anything we can to have our child,” it’s very difficult to say, “No, I don’t agree with you hiring a surrogate mother.”

For the sake of exploring the issue, let’s assume some surrogacy will continue to be allowed. What restrictions are ethically required?

Our choice of words can affect our assessment of the ethics – probably because words influence our emotions and intuitions, which we validly take into account when making ethical decisions. Grandmother Casey is compellingly described as “altruistic,” and is said to have given “the ultimate gift” to her daughter and her son-in-law.

But let’s change the situation slightly and see if we make the same assessment of ethical acceptability. Here’s another case on which I was consulted by the physician asked to carry out the artificial insemination.

A young, infertile man and his wife want to have a baby that is as genetically similar to their family as possible, in part because a blood relationship is considered very important in their culture. The man’s father wants to donate sperm to artificially inseminate his daughter-in-law. The child will be the half-brother of his social father, and the biological child of his social grandfather. Is this ethically acceptable?

If this is not ethically acceptable, but Grandmother Casey’s role was, is it because Grandmother Casey was not the biological mother? Would it be acceptable to inseminate a still-fertile woman with the sperm of her infertile daughter’s husband? And what about a woman donating ova to her daughter, which results in a child of the daughter’s husband and his mother-in-law?

Does it make a difference if we change the generational relationships and discuss a sperm donor who was the infertile husband’s brother, not his father? Likewise, what about a woman donating ova to her sister, or ¬– as is not uncommon – a woman carrying a baby for her sister? Is the latter less ethically worrisome than a woman giving birth to her grandchild? And, if so, why?

I believe we must start from the basic presumption that every child has the right to be born into a natural family structure, in which the family relationships have not been intentionally confused. This right of the child must be given priority over any competing claims of adults. If surrogacy – either in general or in any particular instance – is not in a child’s “best interests,” then it should be considered unethical. The same principle should apply to all uses of reproductive technologies.

In looking at ethics, it can sometimes be helpful to make a distinction between repairing nature when it fails, and doing something that would never happen in nature. A grandmother giving birth to her biological grandchild is something that could never happen in nature, and so I’d say no to such surrogacy arrangements.

A woman giving birth to her own child conceived with her son-in-law, even though it’s not incest (there is no sexual intercourse and no blood relationship between them, as the crime of incest requires), is, I believe, ethically reprehensible. The same holds true for inseminating a woman with her father-in-law’s sperm.

If for no other reason, the confusion of family structures and roles that these possibilities would cause make them unethical. Some might place the highest value on the free choice of the adults involved, and therefore consider such actions to be ethically acceptable. But the child – the most vulnerable person – vulnerability is an ethically relevant consideration – and the one most likely to be harmfully affected, has made no such choice and given no consent.

One response to this argument is that the child has no right to complain, as he or she wouldn’t exist except for the steps undertaken. As Joanna Rose, a donor-conceived adult who objects to donor conception, told me she responded when faced with this argument, “If I were the product of rape, I would still be glad to be alive, but that doesn’t mean I or anyone else should approve of rape or that it’s ethical.”

The bottom line regarding surrogate motherhood, and all uses of reproductive technologies, should be that when adults’ claims to use these technologies clash with the rights or “best interests” of the resulting children, the latter must prevail. So far, our decisions have been mainly based on the opposite priority. If we examine past decisions using this new approach, we might change our minds about what is and is not ethical.

This piece originally appeared in the Globe and Mail.