Today, you would have to use the services of a local firm called Asian Surrogates. It can hire a woman in rural Philippines to carry a baby for you for $45,000.
Surrogacy is banned here and should remain so, opponents say, because it treats babies as commodities. All agree that a pregnant woman cannot accept money if she puts her baby up for adoption after its birth. Surrogacy is akin to paid adoption, so it should be similarly unacceptable.
In the adoption scenario, however, the woman is actually carrying her own child, whereas the surrogate is paid to help make a baby, not sell one she is already pregnant with. The surrogate is paid whether a pregnancy comes to full term or not, so the payments are really for her gestational services.
This is what most payment schedules would suggest. For example, Asian Surrogates requires $5,000 to be paid on signing the contract, various sums when the foetal heartbeat is first detected, upon reaching the ninth and 12th weeks of pregnancy, and at delivery.
Surrogacy is a nine-month, 24/7, potentially hazardous job with no vacation time, so it should be compensated fairly. At any rate, the term 'commodify' is used too loosely.
A commodity is a unit that can substitute for another at all points, so each unit has no special intrinsic value. But each baby is one-of-a-kind, unique, so none can substitute for another. Thus, it makes no sense to say that surrogacy commodifies babies. In fact, the babies would not even exist if not for the surrogacy.
Some suggest that these kids might be upset to learn about their surrogacy origins when they grow up.
Generally, test-tube babies are not known to be upset upon learning about how they came into the world. Thus, kids born of surrogates are unlikely to be distressed to learn the facts too. They might even feel special that their parents went to such great lengths.
What about the claim that surrogacy exploits the poorest of the poor? Intending parents would prefer a healthy woman, not one who cannot take care of herself and not someone in abject poverty. Thus, they are likely to decline a woman from such an unstable situation.
Moreover, it is illogical to say that poor women can knowingly and intelligently agree to have children with their husbands out of love but cannot knowingly and intelligently use their wombs to carry a baby for another couple if paid to do so.
Some opponents even liken surrogacy to prostitution, in that the women in both instances are sexually exploited for money. But their underlying purposes differ: One involves gratifying carnal lusts whereas the other gives life to a much- wanted child. It is preposterous to say the two are similar.
There are two concerns about surrogacy, however, that are legitimate. First, under both common law and statute law, the legal status of any artificially conceived child remains uncertain.
Specifically, the statutes involved are the Women's Charter, Adoption of Children Act, Inheritance (Family Provision) Act, Guardianship of Infants Act as well as the Legitimacy Act.
These laws do not define 'infant', 'child' or 'legitimate' child.
Then there is the Evidence Act, which does not address the status of women involved in artificial conception and surrogacy at all. And while 'father' is defined in the Adoption of Children Act, 'mother' is not defined in any of these statutes.
To fix all these will require a broad and complex law as surrogacy unbundles the procreative process so that, potentially, five individuals may claim parental rights. These include the surrogate (who may or may not donate the egg), the intending father (who may or may not donate the sperm), the intending nurturing mother (who may or may not donate the egg), a non-related sperm donor, and/or a non-related egg donor.
It is concerning these parental rights that the second and stronger objection to surrogacy may be raised. While it obviously involves providing a set of services, a surrogacy contract entails also the exchange of parental rights. If the surrogate does not agree to relinquish all rights to the child that results, the intending parents would have nothing to do with her.
Clearly, what is at stake is not just some service per se but parental rights as well. In the United States where surrogacy is legal in five states - it is prohibited in nine and the rest leave it to their courts to decide - there have already been instances where the surrogate mother refused to give the baby up after delivery. US courts have generally refused to enforce the contract to compel the surrogate to honour it and give the child up.
Unfair to intending parents? Having to pre-commit to relinquishing one's parental rights to a yet-to-be-conceived baby is like a businessman having to nail down how much he will charge you for an ancient relic he hasn't seen yet but is sure he can procure for you.
A little baby is priceless and just carrying it for nine months may increase its subjective value to the surrogate far above what she could have predicted rationally. She may well have underestimated how bad she might feel when it came time to hand over the baby.
Once the baby exists, she is likely to value it much more than she had anticipated when she signed on the dotted line. Foetal movements, in particular, can change how a surrogate feels about her pregnancy whatever she may have pre-committed to do. She may then come to profoundly regret having signed away her parental rights.
Since these are fundamental human rights, we must not take too lightly any contract that requires a woman to relinquish them regardless, especially when it is known that several cognitive biases may be in play at contracting.
Thus, if Parliament ever legalises surrogacy, it should mandate that the contracts may not require the woman who carries the baby to surrender it regardless. (She would have to compensate the intending parents fairly, of course.)
Though this may seem to disadvantage intending parents, such a caveat will balance neatly the hopes of couples intending to acquire parental rights from the surrogate with the need to protect the latter's parental rights.
In this way, Singapore might just have more babies - ethically.
This article was first published in The Straits Times on August 23, 2008.
