Is legalizing surrogate motherhood a "trend of the times" and a measure "most in keeping with human dignity," or is it a mistaken, "retrograde" policy?
The storyline of the current TV serial "Marriage Flowers" centers on surrogate motherhood. As the serial plays, its producers are waiting to see if the law on surrogacy is passed to decide how the story should end.
In a public discussion about surrogate motherhood on the matchmaking variety show "Special Men and Women," one person said she would be willing to act as a surrogate for NT$10 million; another said one should choose a surrogate of a different skin color, to be sure the child was one's own. A third, influenced by the TV serial plot, was worried her husband might "accidentally" fall in love with the surrogate mother. . . .
In mid-September, new Department of Health Director-General Chan Chi-hsien said that in assisted reproduction, surrogate motherhood was a "trend of the times," and we should bring it into use as soon as possible by enacting carefully drafted legislation. This heralds a sudden change of fortune for surrogate motherhood, which for many years has been banned in Taiwan.
Should surrogacy really be legalized?
After Taiwan's first test-tube baby, a boy surnamed Chang, was born 11 years ago, the DOH began drafting regulations to govern assisted reproduction. At that time, because the section on surrogate motherhood was so controversial and had such far-reaching implications, it was put aside. Now that a new law is being drafted to replace the regulations, the subject has been raised again. Legal specialists, physicians, academics, feminist groups, child welfare groups and others each have their own point of view, and the issue is being hotly debated.
Their only chance
"Doctors treating infertility are not trying to play God, but simply to answer the prayers of childless couples." So reads a plaque hanging on the office wall of Tseng Chi-jui, president of the Chinese Fertility Society. "Infertility is a medical condition," says Tseng-one that not only affects the patient, but also affects the family and creates social problems, so it is one we should try to treat.
The rate of infertility among people today is rising. According to a survey two years ago by US doctors, one in seven US couples were infertile. The situation in Taiwan is little better: Tseng Chi-jui estimates that infertility affects one couple in nine to ten. Calculating from the married population of childbearing age, this means that 150,000 to 200,000 married couples in Taiwan are faced with infertility. From birth rates, the DOH estimates there are 30,000 to 40,000 new infertile couples in Taiwan every year.
Tseng Chi-jui notes that women nowadays marry late, and so are at greater risk of disorders of the reproductive system. But today, through artificial reproductive techniques such as artificial insemination, in-vitro fertilization (IVF) and microinjection (ICSI), many infertility problems can be overcome. Even if one partner has no sperm or eggs, these can be "donated" by another person. But a woman whose uterus is missing or damaged has nowhere for the fetus to grow. There is nowhere for the pregnancy to take place, so none of these treatments is effective.
According to overseas estimates, about one woman in five to 10 thousand does not have a fully developed uterus for congenital reasons, but nonetheless has healthy ovaries. There are even more who have had a hysterectomy due to a medical condition, or whose womb is not functional. Until such time as attempts to produce an artificial uterus are successful, such women's only chance of having children is to "borrow" the womb of a surrogate mother.
The will of heaven?
Chen Chao-tzu, director of the pharmacy department at the Sun Yat-sen Cancer Center, describes herself as having gone through three phases in her struggle to become a parent: using a surrogate mother, acceptance of being childless, and then adoption. She has a congenitally underdeveloped uterus.
"I couldn't be happy without a child," avers Chen Chao-tzu. She says she has the good fortune to have a happy marriage, but she and her husband were never able to realize their shared wish: to bring children into the world.
She admits that she first hired a foreign woman working in Taiwan and then a close friend as surrogate mothers, but after several attempts at implantation had failed she finally adopted a child of the friend.
Although Chen Chao-tzu's own story had a happy outcome, she could not bear to see other women in the same plight continuing to suffer, so she was willing to give up her own privacy in order to press for surrogacy to be legalized. When she told her story to the media, it sent shock waves through all sections of society, and caused everyone to look at this issue more seriously.
Gynecologist Liu Chih-hung, who has been treating infertility for many years, also lends his support to the surrogacy bill. He comments that in Taiwan today there are many married women without a uterus who must wait until the law is passed before they can have children; and there are also many unmarried women without a uterus who are not willing to marry unless surrogacy is legalized.
Dr. Liu recalls how, when he was between flights in Hong Kong last year, he was recognized and approached by an unmarried couple from Taiwan who were also changing planes there. These two attractive young people were both students at a medical college in Taiwan. The girl congenitally lacked both a uterus and a vagina. She was waiting for the surrogacy law to be passed: if it should fail to make it through the legislature she was not willing to "take the risk" of marrying her boyfriend.
Baby M
Although reproduction is a basic, inalienable human right, senior specialist Chen Mei-ling of the Ministry of Justice's Department of Legal Affairs notes that currently no country has comprehensively legalized surrogate motherhood, and even in the USA, where surrogacy has been practiced for many years, only certain states have legislated to legalize and regulate it.
In 1985, two US doctors published the first report on a case of surrogate motherhood. Throughout the more than a decade since then, surrogacy has remained a highly controversial issue.
Where surrogacy is practiced, it can take two forms: in one, fertilization takes place outside the surrogate mother's body in a culture dish (the test-tube baby technique) and the embryo is inserted into her uterus to develop and be born; in the other, sperm is injected into the surrogate's uterus to fertilize her. In other words, this second method "borrows" the surrogate mother's ovum as well as her womb.
The second method, in which the surrogate mother donates an egg, has given rise to many disputes in the USA. The best-known case is that of "Baby M."
Because Elizabeth Stern was unable to carry a pregnancy, she and her husband William contracted to pay US$10,000 to Mary Beth Whitehead to act as a surrogate. William Stern's sperm was artificially injected into Ms. Whitehead's uterus and she successfully conceived. But after the child was born, she would not accept the money, and refused to hand over the baby. This led to a battle for possession of the child between the biological father and the biological mother, which ended in a lawsuit. The final judgement of the New Jersey Supreme Court was that William Stern was the legal biological father and Mary Beth Whitehead the legal biological mother; Stern was to have custody of the child, while Whitehead would have visiting rights.
In Britain there was also a case in which, after a surrogate mother failed to conceive following several attempts at artificial insemination with sperm from the prospective father, they finally decided to try the "natural" method. They had intercourse several times before the surrogate conceived. But after the child was born the surrogate changed her mind, and when her husband found out how she had become pregnant, it caused the break-up of their marriage. The ensuing court case, in which the plaints ranged from breach of contract to incitement to adultery, dragged on for four years. The father finally won the case but at enormous financial cost; the surrogate suffered both physical and emotional anguish and her marriage disintegrated.
There was also a case in which the couple involved "ordered" a daughter, but the surrogate gave birth to twins. The couple would only take the daughter, and left the son with the surrogate and her family. . . .
Because of the likelihood of disputes arising when the surrogate mother donates the ovum, in the initial draft bill which the DOH is currently preparing, it only intends to legalize the first type of surrogacy: only married couples who can provide healthy sperm and ova, but where a defective uterus prevents the wife from carrying a pregnancy, will be eligible to use a surrogate.
Bolstering outdated traditions?
Hiring a surrogate mother has been compared with renting an apartment: "The fetus doesn't have its own place to live, so why not rent somewhere for it?" But disputes between landlords and tenants are only too common, and the problems which may arise with surrogacy are more complex than those involving rented accommodation. The legal definition of maternity and paternity, the emotions of the surrogate mother, the commercialization of the reproductive process and other issues all require clarification and deep reflection.
In the past, a child's mother has always been the woman who gave birth to it, and this relationship was beyond question. According to the current wording of the ROC civil code, children are their parents' "blood relations of their own issue." But in an age where the ovum can be separated from the uterus, and a child can be carried by a "surrogate," parturition as the definition of motherhood is the first concept to be challenged.
In the view of legislator Shen Fu-hsiung, a former practicing physician, for most people the existing definition of parenthood as a blood relationship can be retained, and in the case of surrogacy it is enough to amend it as follows: "From the day of implantation of the embryo, the mandators (the owners of the sperm and ovum) are the parents."
The law can define a person's legal status, but it cannot regulate emotions. Even if they are not genetically related, how can the surrogate mother possibly have no feelings for the fetus which has been a physical part of her during the nine months of pregnancy? Can a paper contract really cleanly sever her emotional bonds with the child?
Associate Professor Liu Chih-hung of NTU College of Medicine takes the view that the relationship between the surrogate mother and the fetus inside her is merely one of "nutritional exchange"; her feelings for it are not as deep as those of a nanny who has spent a lot of time with a child. "As long as she is clearly aware that the child is not her own, separation should not be difficult," he maintains.
However, Liu Chung-tung believes that most people do not have any clear notion of sperm and ova, but are likely to regard a child which they have carried inside them for nine months, and which they have gone through the pain of labor to bear, as their own "flesh and blood." Thus some fear that if surrogacy is legalized, it may answer the prayers of childless couples, but may also create new tragedies in the form of physical and emotional distress for surrogates.
Out of consideration for surrogate mothers' feelings, Britain has banned commercial surrogacy, and encourages the choice of people with close emotional bonds to the couple as surrogates, such as mothers, sisters, relatives or friends. In this way, there is no need for the surrogate to break off her relationship with the child, and the child has another person who loves it rather than someone fighting over it.
To avoid complicating family relations, the bill currently being drafted in Taiwan will forbid mothers to act as surrogates for their daughters, but friends and relatives of the same generation will be allowed to do so. In fact, the tradition of adoption from siblings in Chinese society is rather similar to this arrangement. It generally involves a couple adopting a son from a brother or sister of one of them, to carry on their family line if they have no sons. In Judaism there is also the precept that a man should take as his wife the widow of his brother who dies without a son, to produce a son for his brother. Thus we can see that in human society the urge to have descendants is very strong. But today, the needs of childless couples can also be met by surrogate mothers, and modern medical technology makes surrogacy highly feasible.
Should surrogates be paid?
However, modern methods have also created new problems. One of the most controversial aspects of surrogate motherhood is the possible "commercialization of reproduction." Some people criticize the idea of legalizing surrogacy on the grounds that it would enable rich people to pay poor people to bear children for them, which would undoubtedly be exploitative.
Actually, the fact that surrogacy has not yet been legalized does not mean that such things are not happening. Taiwan's media once reported the case of a woman who had her womb removed in order not to bear children herself, and then hired a surrogate mother. But the surrogate did a bunk, leaving the woman and her husband with neither the baby nor their money.
"Surrogacy should be an act of benevolence, not a commercial transaction." To prevent commercialization, Tseng Chi-jui favors including a rule that a surrogate should receive no remuneration and should only be allowed to act as a surrogate once.
But in Shen Fu-hsiung's view, banning any payment would be too harsh, and also impracticable. "Even if there is no profit, at least one should compensate the surrogate for the loss of earnings incurred by being unable to work."
In reality, if surrogacy is legalized, whether the law stipulates payment or no payment, or sets upper and lower limits, financial transactions will be very hard to eliminate.
In the USA, the atmosphere of commercialism surrounding surrogate motherhood is very strong, and Liu Chih-hung says that every year gynecologists in Taiwan receive advertising mail from commercial surrogacy agencies in the USA.
But pregnancy and childbirth are a "high risk" form of "work," and there is not likely to be a "going rate." It is not something most people would readily agree to. Hence some feel that even if a law allowing surrogacy is passed, it will still not be easy to find women willing to act as surrogates.
The situation with sperm and ovum donation today clearly illustrates this. The present law forbids the sale of sperm or ova, but donors are paid a symbolic NT$5000 and NT$50,000 respectively as a "nutrition payment."
Yet even with these payments, sperm banks are still generally understocked. This is the case for sperm even though donation is an easy task, and all the more so for ova, where a more onerous retrieval procedure is required.
A US survey of 50 surrogate mothers, whose average age was only 26, found that their motives for becoming surrogates included wishing to experience the joy of pregnancy, sympathy for childless couples, economic factors and so on. The researchers who conducted the survey concluded that although money might be an important reason, it was rarely the only one.
In Taiwanese society too, there is no shortage of people eager to help others. During Chen Chao-tzu's campaign for the legalization of surrogacy, she made public the fact that she has no womb and cannot bear children. Since then she has received many letters and phone calls from women expressing their sympathy and saying they would be willing to act as surrogates for her. She comments that apart from some with financial motives, these generous-minded women include some who have themselves experienced fertility problems, nurses who have come into contact with childless couples in hospitals, and tender-hearted mothers-there are all kinds of motivations.
Gynecologist Chiang Cheng-chieh, who practices in Hsinchu, has also had several enquiries recently from women saying they are willing to act as surrogates. Chiang asks these women about their views and motives. One, after thinking for a moment, replied: "To help others, and to help myself."
Division of labor?
Although a fetus gets its genes from a sperm and an ovum, and the uterus of the surrogate mother only provides the "environment" in which it develops, Wang Tso-jen, director of the Division of Clinical Genetics at NTU College of Medicine, points out that genes are greatly affected by their environment, especially during the first three months of pregnancy.
Because the physical and emotional state of the pregnant mother can affect the fetus, the surrogacy contract may place restrictions on the surrogate mother during the pregnancy, such as not allowing her to smoke, drink alcohol, take drugs and so on.
Huang Shu-ying, president of the Taipei Association for the Promotion of Women's Rights, notes that a surrogate mother's diet, living habits, sex life and so on may all be restricted by the "tenant's" demands, thus taking away her freedom of choice. And some feminists believe that renting out one's womb is no different from renting out one's vagina: both use the female body as a tool.
Thus surrogacy is criticized by some feminists as another product of patriarchal culture's oppression of women.
In an article entitled "New Technology as the Accomplice of Old Traditions," Professor Lin Fang-mei of National Chengchi University raises the question: if the woman who provides her womb is the surrogate, and the one who provides the ovum is the true mother, why is it that if the wife has a womb but no ova and uses eggs from another woman to become pregnant, then the "real mother" is the womb mother and not the egg mother?
In other words, whoever is the legal spouse of the sperm father is the legal mother, and the other woman is either a "surrogate" or an "egg donor."
But there are other feminists who think from a different perspective.
"We oppose having children simply to continue the paternal family line," says Awakening Foundation director Jennifer Wang. But as well as shouting slogans and explaining their ideals, they also want to consider the needs of the disadvantaged. In Wang's view, when people want children it is not necessarily to carry on the family line. She sees surrogate motherhood as an example of "women helping women," and quotes the concept of "division of labor": "What's wrong with one who is better at earning money earning money, and one who is better at having children having children?"
Just an incubator?
Some people, looking from the perspective of the effect on blood relationships, believe that surrogacy is actually a less serious issue than sperm or ovum donation.
Tseng Chi-jui says that sperm and ovum donation is more "frightening" because the donated sperm or egg gives the child half its genes, and "heredity is forever."
The practice of sperm and egg donation, which has been established for many years, has its own problems, including even the risk of unwitting incest. A sperm bank in California specializes in collecting sperm from outstanding scientists for use in assisted reproduction. One doctor in Chicago used his own sperm to artificially inseminate female patients without them knowing he was the donor. This only came to light when many of his patients gave birth to children who, like him, had strabismus. The case horrified the public, and today the patients are still pursuing the doctor in the courts.
"Most people do not oppose sperm and egg donations, and a surrogate mother is only providing the use of her uterus, so why oppose that?" Shen Fu-hsiung says that from a purely biological point of view, the uterus is not so solemn, sacred or grand.
He observes that premature babies are put in incubators instead of their mothers' wombs to help them survive, and in the same way one can regard the womb of a surrogate mother as an "incubator within the body," which allows a homeless fetus to survive. Why shouldn't it be used in this way?
Where's the limit?
But Liu Chung-tung disagrees with medical practitioners' view of the surrogate as an "environment for fetal development." There are many parts of the human body which could be "borrowed," she says-but should they all be hired out, sold and reused?
Liu goes on to say that people who have a mechanistic view of biology and medicine treat the human body as a machine, in which one can replace the heart, the liver and so on. "But how much can you change before it is no longer the same person?" She believes there should be a limit, and science and technology should not be used without restraint, to do whatever one pleases.
Furthermore, progress in the techniques of assisted reproduction has not only failed to free women from suffering in bearing children, it has actually exposed many women to greater distress in their efforts to have children.
Surrogacy itself is a prime example of this. During the procedure, both the woman providing the egg and the woman providing her womb have to have their menstrual cycles brought into synchrony by the use of drugs. Then the egg donor must undergo a surgical procedure for the eggs to be removed, and after the eggs are fertilized in vitro they are implanted in the surrogate's uterus by another surgical procedure. This complex process, and the physical and emotional strain both women must go through, surely causes great harm to their health.
Associate Professor Hu You-hui of National Yang Ming University's Institute of Health and Welfare even refused to take part in the Legislative Yuan's public hearing, on the grounds that legalizing surrogacy would be detrimental to women's reproductive health. In a written explanation she states that the policy of legalizing surrogacy is a mistaken one, because it "will not necessarily solve existing problems, but is certain to produce new ones." Today, even in the USA, surrogacy is only legal in a few states. If we pass such a retrograde law, says Hu, we will become "the laughing stock of the world."
The other option: adoption
So many people go to so much trouble to have their "own" children. The concept of the blood relationship is still one which many childless couples cannot give up.
"Is it the blood relationship which is more important, or the [emotional] relationship between parent and child?" Pai Li-fang, director of the social welfare department at the Child Welfare League Foundation, says that in the interests of children, the CWLF opposes surrogacy. "If you really love children, then adopt one-why should one absolutely have to give birth to one's own?"
A Mrs. Huang, who has been married 10 years and who spent at least NT$1 million on fertility treatments, adopted a child a year ago. She feels how a child is raised is more important than who gave birth to it. "There are so many parents who abuse their natural children, and so many kids who go after their natural parents with a knife-what difference does the blood relationship make?"
A Mr. Wang, who also overcame childlessness by adopting, finds the idea of surrogacy unacceptable too, because of the difficulty of choosing a suitable surrogate. "It would feel strange to ask a relative or friend to act as a surrogate, and it might complicate your relationship with them; but if you asked a stranger, you wouldn't be sure you could trust them."
However, there are problems with adoption as well. Chen Chao-tzu, who finally chose to adopt after unsuccessfully trying every avenue in her quest to bear children, says she knows about this from her own experience. "A surrogate pregnancy is a matter of a year, but adoption is a matter of 20 years." She says that in order to adopt she had to fight a battle with the child's grandparents, and this also created a distance between her and the child's natural parents.
Mr. Wang, who has now adopted a baby girl who was abandoned, also points to the risks of adoption. Firstly, during the six-month trial period the natural parents have the right to change their minds and can ask for the child back at any time; secondly, if the child was abandoned, there is no way of knowing what hereditary diseases it might have. In Taiwanese society in particular, many people still hold on to traditional modes of thinking, and believe that even if their own "seed" is not necessarily the best, at least they will worry less.
Another first for Taiwan?
So is surrogacy a method which gives greater human dignity, or one which destroys and tramples on human dignity? It all depends on your point of view.
With IVF, the surrogate mother need not have any direct physical contact with the prospective father. Yet although this might appear more in keeping with "human dignity" and "moral values," it is precisely this artificial approach of "only wanting a child and not wanting sex," which many people find suspect about the whole procedure.
Wang Tso-jen, who has always been highly dubious about IVF, says that purely from the point of view of genetics, the risk of mutations with fertilization in vitro is sure to be greater than with fertilization inside the body. He comments that with any experiment, the results will be very different if it is conducted inside an organism than if it is conducted outside. It is the same with IVF. When the sperm and ova are exposed to an unpredictable environment, the risk of mutations is naturally higher.
Although the rate of deformities in test tube babies is now little different from that in naturally conceived children, Wang Tso-jen says that the number of test tube babies is so much smaller that one cannot make a valid comparison.
Furthermore, Liu Chung-tung believes that with IVF it is hard to prevent gender screening, the destruction of excess embryos and other actions which are injurious to life. If the "reproductive revolution" develops without restraint, she fears it will have consequences which will be intolerable and irreparable.
"If we win another 'first place' for Taiwan, just like with cesarean sections, it won't necessarily be a good thing," says Liu Chung-tung. If others are not ready or willing to go down this path, why should we go rushing to be first?
On the horns of a dilemma?
Can we? Should we? Surrogate motherhood throws up all kinds of issues: legal, moral, familial, medical, social. . . .
"Human nature is very hard to change, so we have to have laws to regulate behavior," says Shen Fu-hsiung. He believes the only practicable approach is to make the "rules of the game" clear, and create disincentives to breaking them. Surrogacy is no exception.
"The conditions can be strict, but you have to give people a way forward," says Tseng Chi-jui. If modern technology can give women with defective wombs an opportunity to have their own children, how can one deny them that opportunity?
But Liu Chung-tung feels that although it is very hard to oppose women's willingness to help others from a sense of "sisterhood," we should think very carefully before legalizing surrogacy.
"We feel sympathy for childless couples, but we cannot consider this from the individual's standpoint. We have to consider social order and ethics," says Wang Tso-jen. In his view, the issues involved deserve long and careful consideration.
On almost every aspect of surrogacy, both its opponents and its supporters have well-founded arguments, including on whether there is a need for a law at all. In fact, many people believe that legislating is not the difficult part; the real difficulty lies in implementation and regulation. As for moral arguments and questions of emotion, these are not things which statutes and regulations can deal with.
Whether or not legislation is passed, perhaps in the end it will still be a matter for individual choice and conscience, and the new issues created by modern technological "solutions" by which humans seek to "overcome nature," such as human cloning, cryogenics and so on, will continue to constantly force mankind to search for still more comprehensive and precisely formulated social rules, and will forever push "evolution" to new heights.
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Who's my mother? In an age when one woman's egg can develop in another's womb, this question has become more complicated.
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Having children is not so difficult for most women, but for one without a womb it has been an impossibility.
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Some people believe that how a child is raised is more important than who gave birth to it. If you love a child, what does it matter if it is not your "own"? (Sinorama file photo)
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Late marriage and stressful lifestyles are causing infertility to be an increasing problem. But modern reproductive technology gives the chance to bear children to many who could not otherwise do so.
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Chen Chao-tzu, who went through many trials and tribulations in her quest to have a child, has stood up to support the legalization of surrogate motherhood. Pictured here is Chen with her husband Kuo Chang-feng and their adopted son.
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From test-tube babies to surrogate motherhood, where is the limit to developments in assisted reproduction? This is not merely a question of technology.
Some people believe that how a child is raised is more important than who gave birth to it. If you love a child, what does it matter if it is not your "own"? （Sinorama file photo）
Late marriage and stressful lifestyles are causing infertility to be an increasing problem. But modern reproductive technology gives the chance to bear children to many who could not otherwise do so.
Chen Chao-tzu, who went through many trials and tribulations in her quest to have a child, has stood up to support the legalization of surrogate mother hood. Pictured here is Chen with her husband Kuo Chang-feng and their adopted son.
From test-tube babies to surrogate mother hood, where is the limit to developments in assisted reproduction? This is not merely a question of technology.
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