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Blood, Birth, and Bonds: Who Counts as a Parent?

For most of us, our relationship with our parents is relatively straightforward, at least from a genealogy perspective. Your mum is the person who gestated you and from whom half of your DNA originates; your father is the source of the other half of your DNA. Now, this isn’t always the case. Some people are adopted and have no direct genetic relationship with their parents. Others are born via surrogacy, so while they may share DNA with their parents, someone other than their mother gestated them. Or, it might be that you have one parent with whom you share DNA and another that you don’t. In short, while many have an uncomplicated relationship with their parents (from a lineage perspective), there are alternatives.

This is not a trifling matter, either. The importance of personal history, the environment in which we grow, and the genetic sources of the very building blocks of our bodies fundamentally shape who we have been, who we are, who we may become, and who we are in relation to others. We typically think of owing special duties and responsibilities to those we call family, as opposed to those outside that sphere. The motivation for such a special category is debated, with reciprocity, friendship, obligation, and assumed promises all potentially forming a bedrock. Regardless of the why, the concept of family is significant. This makes it even more crucial to examine what it means to have a family, who we count as kin, and what entitles them to such a title are so vital.

The reason that I’m thinking about this now is because of two separate accidents that have recently occurred at IVF clinics, one in Israel and the other in Australia. While the clinics are worlds apart, the incidents have some shocking similarities as, in both cases, the wrong embryo was implanted into a would-be mother, resulting in them gestating and giving birth to a child that, genetically speaking, they had no relationship with.

Starting with the Israel case, as reported by The Times of Israel, in 2022, an IVF mix-up at Assuta Medical Center in Rishon Lezion led to an embryo being implanted into the wrong woman. The woman became pregnant and later gave birth to a girl named Sophia, only discovering through genetic testing that the child was not biologically related to her or her partner. Investigations revealed that the embryo had been intended for a different couple, who were eventually identified as the girl’s genetic parents. The discovery set off a legal and emotional dispute over custody between the birth parents and the biological parents. At present, the courts have ruled that Sophia should remain with her birth parents, as this would be in her best interests. However, Sophia’s genetic parents can appeal this decision and take the matter to Israel’s Supreme Court. So, at this point, the outcome of the mix-up remains uncertain.

In a strangely similar incident, as reported by the BBC, an error at an IVF clinic in Brisbane, Australia, resulted in a woman being implanted with another woman’s embryo in 2023. Gestation occurred as expected, and a child who shared no genetic relationship with its gestator was born. Unlike in the Israel incident, there are no firm details about whether the genetic parents are seeking custody of the child. While the gestating parents have sought legal counsel, it is unclear whether they will act against the clinic for what could be a severe case of negligence.

Despite being in two very different jurisdictions, it is clear that legal and regulatory questions surrounding how such accidents could have happened, what could have been done to prevent them from happening again, and what repercussions those at fault should face abound. However, I’d like to consider the more philosophical question of who can claim parenthood of the children in these and other such cases.

Looking at surrogacy cases is probably helpful as a starting point. In such cases, prospective parents employ the services of someone capable of gestating an embryo to term. In some countries, like India, this can be a service for which the gestator receives payment. In other places, while people can’t be paid for their services, they can receive reasonable expenses, such as in the UK. And in different countries, surrogacy is not only unpaid but actively prohibited, such as in France. However, clear legal frameworks usually determine parental rights and who counts as a parent in those places where it occurs. So, it might be that in the Australian and Israeli cases, we must see what the law requires and follow its lead.

Yet, there is a crucial difference between surrogacy cases and those we’re concerned about. In both the Israel and Australian cases, not only did the biological parents want a child, but so did the gestating parent. The children did not come about as the result of a transactional agreement between someone wanting a child but unable to have one and someone able to have a child but not wanting one. Instead, both mix-up cases concern individuals wanting children and thus wanting a parental role. So, while the rules around surrogacy might prove helpful, I think there is a material difference between that and the cases we’re concerned about, which means such help is limited.

Who, then, counts as a parent in the embryo mix-up cases?  What’s (more) important: gestation, genetics, or care? Is there a hierarchy of lineage linkage in which one of these factors trumps another? Or does Sophia and the unnamed Australian child have four parents, all of whom have equal rights to the parent title? After all, they all wanted to be parents from the start.

Sadly, I don’t have an answer to this question. As noted, the Israeli court has decided that the gestating parents should hold custody of Sophia. But this was on appeal. The Court of First Instance ruled that the genetic parents should take custody. And if the courts can come to contrary rulings, I feel justified in admitting I don’t have an answer. But, as a tentative conclusion, I’m tempted to agree with the courts and say that the person who not only gestates but has also been caring for Sophia for the past two years should retain custody. Yet, I can’t help but return to a quote by one of Sophia’s genetic parents: “Not only are mistakes and injustices not corrected, but they are sanctioned and perpetuated under the cover of the state.” It seems, then, that all involved are victims of circumstance. From what we know, none deserve to be in this situation, and, unfortunately, it does seem that regardless of who ends up being Sophia’s parents, someone will lose out.

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Consent, Commodification, and Anderson Cooper’s Surrogacy Case 

Anderson Cooper standing at a podium with a woman sitting in a chair behind him

Recently, CNN anchor Anderson Cooper announced the birth of his son through surrogacy. On June 10th, Cooper and his son made an appearance on People magazine where Cooper talked about the experience of surrogacy and raising his 6 week old son. However, his decision to have a baby through surrogacy has been met with significant controversy: where some congratulated Anderson Cooper, others questioned the ethics of surrogacy. Surprisingly, surrogacy isn’t a partisan issue where even in left leaning circles, many disagree about surrogacy’s place as a way for gay or lesbian couples to have a chance to raise a child while others argue it is a commodification of women’s bodies. Anderson Cooper’s surrogacy case is now starting larger discussions about the ethics of surrogacy. 

The first question that arises is if surrogates can give informed consent. The definition of informed consent is stated as permission granted in the knowledge of the possible consequences with full knowledge of the possible risks and benefits. When a surrogate signs a contract to give all legal rights away to the connection of the child, many times, surrogates do not know the feeling of the emotional bond of mother to baby nor the experience of carrying a child. So how could a surrogate, especially a first-time mother, know the experience of having a strong emotional bond to the baby? They don’t, so to have potential surrogates sign contracts, while not knowing the experience of being mothers, means that surrogates cannot give informed consent because they cannot possibly know what it is like to give up their baby. 

However, even if a surrogate is not a first-time mother and can give full consent, one needs to consider whose choice is forgotten in this case? The baby’s choice. If you put yourself in the baby’s position, would you want to stay with your mother or a foreign family you are being sold to? Not only can some surrogate mothers not give full informed consent, but the baby’s preferred choice has not been taken into account. Many think only two parties are involved in surrogacy: the surrogate and the adopters, but the baby is the third party that has to be considered.  

Secondly, surrogates cannot provide informed consent because surrogacy disproportionally attracts women of lower income. This explains why surrogacy is especially prevalent in developing countries such as Ukraine, Russia, and India where laws are lax and many people are of lower income. Whether or not surrogates are from the US or other countries, women who are struggling through financially hard times are more vulnerable to coercion due to the mindset of scarcity when struggling through poverty. Women are often coerced into risking their health or even their lives when signing the unbreakable contract to giving away the child. Furthermore, when in circumstances of financial scarcity, potential surrogates are more likely to sign exploitative contracts where pregnancy-related medical issues during or after pregnancy are not covered or where the surrogate is not sufficiently paid. 

Another key part of surrogacy is if it pays for the baby, the service, or both. The answer yields two very different moral viewpoints; if surrogacy pays for a baby, this means a baby is being bought and sold, putting a price tag on human life. This carries enormous consequences to individual rights of the modern world because it would mean human life and value can be measured instead of being infinitely valuable. But if surrogacy only pays for the service of carrying the baby, some would say there isn’t much of a difference between a surrogate and a 24/7, nine-month-long babysitter. The debate around if surrogacy is a payment for the service or the baby depends on the situation. If the surrogate mother is artificially inseminated, some argue surrogacy pays for the baby because it uses the oocyte of the surrogate to produce the baby. If the surrogate were to carry an embryo of the biological parents, then it would be considered a service, because the surrogate is only raising the baby in the womb, not providing reproductive material. However, this reasoning leads to the assumption that new life (reproduction) starts at conception. If one believes that life starts at birth, then surrogacy implies paying for the baby because the pregnancy is part of the process of making new life. Surrogacy would only seem ethically permissible if the surrogate is carrying the “living” embryo of the two biological parents, because the embryo has already been created and now carrying it is a service. Even then, a biological reproductive service seems quite different in moral worth from an economic service like babysitting. 

However, advocates of surrogacy would argue that disallowing women to sell their reproductive services would be unequal, because men are able to sell their reproductive services. So why would we allow sperm donation but not allow surrogacy? There are two significant differences between sperm donors and surrogate mothers. Sperm donors can give implied consent because they have full knowledge of how their sperm will be used, whereas surrogates might experience unexpected effects like an emotional bond to the baby. Secondly, surrogacy requires nine months of pregnancy and the delivery of a baby, while sperm donors have no interaction with the baby; therefore, these differences cannot be held at an equal standard. Rather, egg donors seem to be the equal standard to sperm donors since both meet the same standards of consent and disconnect from offspring. In surrogacy, the moral worth of mother and baby and the ability to develop new life is inexplicably precious, but putting a monetary value on pregnancy might degrade the intrinsic value of carrying and delivering a baby. Society would no longer view pregnancy as an unbreakable bond with a baby but view it as something able to be bought and sold. 

To exemplify this concept of how money changes societal morals, consider the case of an Israeli child care center. The childcare center wanted to decrease the number of parents late to pick up their children, so it implemented a small fine for parents who arrived late for pickup. The result had the opposite effect than many predicted: more parents picked up their children late; the societal moral standard to not give the childcare workers a burden was gone. By implementing a monetary value on being late, it degraded the moral standard of being late. The childcare center reversed the decision after experiencing higher rates of late pickups, but even afterward, the childcare center continued to experience the high rates of late pickups. Once a monetary number is assigned to something, it can degrade the moral value of it. The same might happen to pregnancy if surrogacy was widespread: the intrinsic value of the bond between mother and baby would simply be defined by financial cost. The mother to child bond is something inexplicably precious. We see it when adopted children go looking for their biological mothers or mothers spend years looking for their lost child. This emotional bond is sacred; it’s something no one would put a moral utility measurement on. However, surrogacy risks breaking the mother to baby bond because something infinitely and intrinsically valued has changed to a monetary value.   

In the end, although Anderson Cooper’s case has been one of few high profile cases of celebrities taking the path of surrogacy, the surrogacy process is often used by many people who want biologically related children. On the surface, surrogacy may seem like a 9 month biological babysitter, but surrogacy brings along serious moral questions that need to be addressed. From (un)informed consent, exploitative contracts, the transaction of human beings, and the degradation of mother-baby bonds, surrogacy could have dangerous moral implications to human wellbeing and the core question of human value.

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The Decriminalization of Prostitution and the Commodification of Sex

close-up photograph of red signal light

Democratic lawmakers in New York State have moved to decriminalize sex work, making it legal to engage in the consensual sale of sex. Massachusetts, Maine, and other states have similar laws already in force, but the New York bill will release those in prison for acts that are no longer illegal as well.  

Practically speaking, making sex work illegal has not created safe environments for many people living in the US. When an activity is illegal, it pressures the participants into anonymity and makes it harder for them to receive care and support when harm results from participating in the activity. For sex work, this can mean theft, sexual assault, harassment, exploitation, rape, and worse.

For example, rape and gonorrhea dropped significantly in Rhode Island in the decade following decriminalization of indoor prostitution (as a journalist for Vox reported in 2015: “there was a 31 percent decrease in rape offenses and 39 percent fewer cases of female gonorrhea — and no extraordinary drop in other kinds of crime, suggesting the reduction in rape offenses was not representative of a broader crime drop or better policing across the board.”

Opponents of decriminalization generally object on the basis of the moral standing of sex work, claiming sex work can be categorized as exploitation or commodification.

To argue that sex work is exploitative, one has to establish that it takes advantage of a vulnerability that should be protected, or *not* taken advantage of. This argument points to empirical trends of who engages in sex work (typically members of disadvantaged groups) and the rate of unfortunate side effects or corollaries of engaging in sex work (typically the harms listed above). This line of argument suggests that people ought to be protected from engaging in sex work similarly to how we should be protected from other unfortunate work environments – “sweat shops”, etc.

However, advocates for decriminalizing sex work point out that many people choose to engage with the variety of jobs that qualify as sex work. Further, the risk and negative correlations are greatly reduced when the threat of being subject to the criminal justice system is removed through decriminalization, as the Rhode Island example suggests. Further, this argument can be interpreted as stripping sex workers of their agency, characterizing sex workers in a way that undermines their ability to make their own choices about what to do with their bodies.

Some take issue with sex work even while conceiving of sex workers as free and autonomous people in control of their decisions. The concern here is that sex is not the sort of thing that should be a job or for sale. In short, sex work commodifies something of moral value.

Commodification refers to the moral wrong involved with treating something only in the domain of marketplace norms. In other words, the standards for how something should be treated become understood economically, which is inappropriate given the nature of the object. When we engage with products, it is typically appropriate to treat them as commodities: Norms of the marketplace are maximization norms. The economic marketplace is competitive and if you can get a good deal on something that benefits you, that is not only permissible but the system supports it. If I have a book and am willing to sell it for a certain price, but someone offers me much more for it, according to the norms that constitute the economic domain I get to take that better offer and benefit myself. If I choose to let them know they can save some cash and let them have it for the price I originally envision, I’m being a nice person, surely, acting beneficently. But no economic standards demand this as long as parties act freely and consensually.

A prime example of commodification is slavery – where human beings are treated as products on the marketplace. Clearly there are more norms than economic that apply to how we should treat people. Thus, even if there are willing parties on both ends of an economic transaction, it is not right to buy or sell a person.

Recently in bioethics more complicated questions related to commodification have become relevant. When having a child with a surrogate, parents exchange money for the surrogate mothers’ services. The pregnancy is something that a person can provide in exchange for money, and thus using a person’s body in a sense is treated as a commodity in the market. In New Jersey, surrogacy agreements where the surrogate is compensated are illegal, and in 27 countries compensated surrogacy is illegal (the legal standing of “altruistic surrogacy” varies). Similarly, exchanging money for organs, like kidneys, is criticized as objectionable commodification. The values associated with the human body and medicine, say some, extend beyond the free exchange of goods and services in an economic market.   

To restate, what’s happening with commodification is that you are using norms (namely, marketplace norms) that are inappropriate for the circumstances (typically because they are insufficient, there are more principles or standards that you ought to be governed by than the rather austere marketplace norms). Marketplace norms say that what you ought to do is get as much as you can for yourself. You pursue your own best interests, and as long as the other party consents, you get to exact benefits. Commodification happens when the value of a good or service is reduced to its mere economic worth despite its greater social significance. For example, you shouldn’t approach family interactions using only marketplace norms – there are additional (moral usually) norms you should attend to. There is something of value missing or being disrespected if the only reason families interact is for goods and services exchanged ($20 for showing up to Sunday dinner, if not supported by some kind of relationship, begins to look less like a family relationship for these sorts of reasons).

To take a biomedical example, the doctor-patient relationship comes with extra norms and rules beyond those established by the marketplace. There are often extra protections and responsibilities that come with inhabiting a particular role that means that it would be wrong to treat a patient as merely a person in an economic exchange. There is something going wrong, we think, if a doctor barters with a patient over the cost of revealing lab results, for instance. The nature of the relationship should be based on providing care, which supersedes the doctor’s economic standing as seeking financial benefit.

When critics of bills that decriminalize sex work take moral issue with buying and selling sex, often it is in these terms. Sexual relationships, one could say, should not be solely subject to norms of economics. However, it’s hard to ignore the fact that sexuality is intricately, intimately, and inextricably involved in the economy. Also, workers use their bodies to earn a living in myriad ways that don’t raise a commodification objection – consider manual labor.

Whether opponents consider sex work to be exploitative or commodifying, attending to the wishes of those who actually occupy the professions and respecting their autonomy is an important ethical imperative. In addition to this, the empirical evidence that negative correlations of sex work dramatically reduce when decriminalization occurs have important implications if finding a sensible way forward.

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Womb Transplantation: A Procedure in Need of Defense?

A woman viewing an ultrasound

Baylor Medical Center in Dallas recently announced a first in the US: a woman gave birth to a baby from a transplanted uterus. The procedure currently has a staggering price tag: $200,000 to $250,000.  It’s cheaper to hire a gestational surrogate to carry a baby, though still very expensive.  So it seems uterus transplantation forces women to defend their desire to give birth, as opposed to leaving the birthing to someone else.  But then, hiring a surrogate is much more expensive than adopting.  So perhaps the woman who opts for a uterus transplant also has to defend her determination to procreate instead of adopting.  In an Axios article on the “complicated ethics of uterus transplantation,” the fact that adoption is not pursued by the transplant patient is one of the main issues raised.

Continue reading “Womb Transplantation: A Procedure in Need of Defense?”

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Surrogacy and Abortion Rights

On February 18, The Atlantic’s Katie O’Reilly published an article titled, “When Parents and Surrogates Disagree on Abortion.” The article describes a messy ongoing legal battle between a pro-life surrogate carrying triplets and the soon-to-be father of these children. In January, a California woman named Melissa Cook entered into a surrogacy contract with a single Georgia man. There were three embryos created, as is frequently the case when doctors implant multiple embryos at a time to increase the chance that one will be fertilized.

Continue reading “Surrogacy and Abortion Rights”