Book Review: The Ethics of Commercial Surrogate Motherhood: Brave New Families?
With his recent book on commercial surrogate motherhood, Professor Scott B. Rae enters the lively debate (theological, moral, legal, medical, and political) surrounding one of the new reproductive technologies. Despite the promise of its title and the correctness of its principal conclusion, this effort ultimately leaves the reader unsatisfied. In his introduction, Professor Rae points to both the importance and relative paucity of moral analysis in the area, and presents his book as a recognition of the former and a remedy for the latter. To that end, he proceeds to undertake a moral analysis of what he identifies as the two most contested issues concerning surrogate motherhood: (i) the commercial aspect of most surrogacy agreements; and (ii) the assignment of parental rights arising out of surrogacy relationships. Professor Rae defines commercial surrogacy as the payment of a fee (or other valuable consideration) to the surrogate beyond medical expenses associated with, or lost wages resulting from, her pregnancy in exchange for the relinquishing of her parental rights to the child, and concludes that such a practice conflicts with the fundamental right of a child not to be an object of barter. In addition, Rae argues that the legally enforced transfer of parental rights from a(n) (unwilling) surrogate to the contracting couple conflicts with the fundamental right of the surrogate (who should be deemed the mother of the child) to associate with her child. To establish these claims, Rae first reviews the legal development of a right of procreative liberty (Chapter 1), and then turns his attention to the ethics of commercial surrogacy (Chapter 2) and the assignment of parental rights in surrogacy situations (Chapter 3). In Chapter 4, Rae analyzes the leading court decisions and legislative responses to surrogate motherhood in light of the conclusions reached in chapters 2 and 3, and he concludes his examination of commercial surrogacy by appending a model statute. Before turning to its merits, it may be helpful to specify what this book is not. First, the focus ofthe study is commercial surrogacy in the strict sense. What Rae terms "altruistic surrogacy" (i.e. , surrogacy services which are not provided for consideration in excess of medical expenses or lost wages resulting from the pregnancy) is largely outside the scope of his analysis. Although he concedes that there are threats posed by non-commercial surrogacy, Rae does not systematically identify the nature of these dangers, nor does his argument against commercial surrogacy easily translate to a general condemnation of surrogacy itself. This latter point leads to the second cautionary note: Rae does not present a comprehensive moral analysis of surrogate motherhood. Those interested in the more properly bioethical issues arising from surrogate motherhood will be dissatisfied with the narrowly legal framework within which Rae works. True to his word, Rae focuses exclusively on the questions of commercialization and the assignment of parental rights. Third, Rae does not move beyond the current legal debate in his moral analysis of commercial surrogacy, despite his clear intention to highlight the ethical implications of the practice. He a.ccepts the terms of the legal debate as it has already been defined and argues that commercial surrogacy ought to be banned based on the relative merits of the (legal) arguments presented. Turning to the text itself, Professor Rae immediately situates commercial surrogacy within a legal framework by examining what he refers to as "The Legal Tradition of Procreative Liberty" in chapter 1. Rae sketches the legal foundation of a right of procreative liberty by reviewing a series of eight United States Supreme Court cases, beginning with Meyer in 1923 and ending with the 1977 Carey decision. (Conspicuously absent is Roe and its progeny.) These cases are then analyzed, with Rae concluding that the right of procreative liberty extends to the use of both third parties and non-coital forms of reproduction. Professor Rae brings the chapter to a close by identifying what he believes to be constitutionally acceptable limits on the right~ of procreative liberty, the most important of which is the proscription of commercial surrogacy. But for the concluding chapter setting forth a legislative proposal, chapter 1 is the shortest (and