By Laura Hermer, LL.M. Candidate
What makes a surrogacy contract different from a contract for the sale of a child? A furor recently erupted in Canada when the Globe & Mail reported that a Manitoba woman, known on the Internet as Trish74, may have used sperm from an unrelated male donor to conceive and bear a child for a British couple. While the lack of genetic relation to the adopting couple would not be problematic if Trish74 received no money for the child, the contract between Trish74 and the British couple provided that she would be paid for her surrogacy services. While the sum she received from the British couple has not been disclosed, Trish74 has since advertised her services for $22,000 US. Section 159 of Canada’s Child and Family Services Act specifically prohibits payments for the adoption of a child. Surrogacy contracts, on the other hand, are largely unregulated. See, e.g., Fay Faraday, Book Review, Barbara Katz Rothman, Recreating Motherhood: Ideology and Technology in a Patriarchal Society, 10 Can. J. Fam. L. 310 (1992). Manitoban authorities are presently investigating the transaction as a potential violation of the province’s adoption laws.
What may render the contract between Trish74 and the British couple one for illegal baby selling, rather than one for unregulated and paid surrogacy services? Manifestly, it is the use (or potential use – Trish74 said she used both the unrelated male donor’s sperm and the British man’s sperm in conceiving the child) of unrelated donor sperm and the surrogate’s ovum in the conception of the child. Where at least half the genetic material used to conceive the child comes from a member of the adoptive couple, the contract between the surrogate and the couple is generally considered to be one for surrogacy services rather than for the sale of a child. In such a case, the law already recognizes the rights and duties of at least one member of the couple with respect to the child, by mere virtue of their genetic connection. No Canadian province considers a surrogacy contract in which the resulting child is at least one-half related to the adoptive couple illegal per se. It appears, however, that a surrogacy contract in which the child bears no genetic relation to the adopting couple may fall afoul of section 159.
This case is relevant to surrogacy agreements not only in Canada, of course, but also elsewhere. Ought the law to make a distinction between a paid surrogacy arrangement where the adopting father provides a sperm sample and pays the surrogate to create a child for him, and one in which the surrogate receives only payment from the adopting father and uses unrelated donor sperm to conceive the child? Why is the first permitted but the second, at least in many jurisdictions, condemned? In both cases, the mother is being paid to bring a child to term and then surrender it to the custody of the adoptive parents. The only distinction between the two is the genetic connection between the resulting child and at least one member of the adopting couple. Yet why should the existence of a genetic connection mitigate the ethical problems involved in what – when all other trappings of the contract are stripped away - amounts to the exchange of children for money? Procreation ought not to come at the price of treating human beings as chattel. There ought not to be any place for transacting children on the market, regardless of any genetic ties involved. It is not Trish74’s story that should raise a furor, but surrogacy contracts in general.