A British Columbia couple creates an embryo using in vitro fertilization (IVF). They contractually hire a surrogate mother to carry the child. Then they discover, through prenatal screening, that the baby has Down syndrome. The couple asks the surrogate mother to terminate the pregnancy. The surrogate disagrees with their decision. According to their agreement, the surrogate can continue the pregnancy, but she will become responsible for raising the child. Then, the surrogate mother, citing problems it would create for her own two children if she kept the baby, goes ahead with the termination.
I know about this story because I receive an e-mail every day from Google about news related to the key words "Down syndrome." Our daughter Penny, who is four, has Down syndrome. Any given day offers me heartwarming stories about the accomplishments of a young adult with Down syndrome. Most days bring up some questions about genetic testing and prenatal screening. And every so often a story appears, like this one, that raises a host of ethical and legal questions.
Had the couple and surrogate mom gone to court, the scenario would have pushed the limits of abortion law. Whose baby was it? According to the Canadian and U.S. court systems, the legal right to an abortion is not dependent on biological parenthood but on the privacy rights of the woman carrying the baby. As a result, a father of a child has no legal right to prevent (or insist upon) abortion. Similarly, the surrogate mother retains the right of choice, even though the parents who created the baby had entered into a contractual agreement with her.
Such an agreement has never been tested in Canada before, but legal scholars assume that family law—by which biological parents have responsibility for their biological offspring—would trump contract law. The legal system hopefully would have recognized the difference between a human life and a "widget" (a commercial product that can be regulated by contract law). In other words, had the surrogate carried the baby to term, the biological parents might have ended up supporting the child financially in spite of the contract.
Because this case involved a surrogate mother, legal questions arose. Yet this story magnifies the ethical issues surrounding IVF and prenatal screening more generally. As Ellen Painter Dollar pointed out last week, when Robert G. Edwards won the Nobel Prize for his role in developing IVF, the ethical concerns surrounding the practice were largely overlooked by the mainstream press. Questions surrounding the way we think about human life were dismissed, not because they have been answered in a satisfactory manner but because four million babies have been born using IVF. The emotions of IVF have trumped the ethics.
Similarly, the ethical questions raised by prenatal screening are often dismissed as irrelevant or unimportant. The American College of Obstetricians and Gynecologists recommends prenatal screening for Down syndrome (the most common genetic abnormality) for all pregnant women, regardless of age. Many doctors and genetic counselors insist that screening for Down syndrome and other genetic abnormalities is a neutral practice designed to offer information. Yet the diagnosis of Down syndrome, even in the absence of obvious anatomical problems, often leads to a conversation about abortion. In 85-90% of the cases where a woman receives a prenatal diagnosis of Down syndrome, the result is the same as the case described above. The baby has been deemed defective. The pregnancy is terminated. (I have written at length elsewhere about my decision, as a mother of a child with Down syndrome, not to pursue prenatal screening for my current pregnancy, and about my concerns regarding the assumption that a child with Down syndrome places an undue burden on families and society.)
For many Americans, IVF and prenatal testing seem like private concerns and individual ethical decisions. Yet the surrogacy case described above highlights the fact that every human life is a part of the human family. The child already has a web of relationships, both biological and social in nature. Even some pro-choice advocates acknowledge the termination of pregnancy as a necessary evil. Abortion severs one of the most fundamental human relationships, that of mother to child. But it also severs a broader set of relationships in denying the child entrance into the social landscape.
There may be ethical reasons to use IVF and prenatal screening, but the simple act of using reproductive technology contributes to the commodification of human life. I doubt that any of the individuals in this story saw that embryo as a "widget." I suspect there was anguish and fear and guilt and sorrow involved in making the decision to terminate. They may have even thought they were doing what was best for the child. Yet our use of IVF and prenatal screening has consequences beyond the emotional angst of the individuals involved. Rather, the impact is collective in nature. In choosing to terminate that pregnancy because of Down syndrome, the family made a judgment on the value of all children with Down syndrome. Furthermore, they made a statement about human life—that it can be reduced to a set of genetic markers, classified according to a hierarchy of normalcy, and discarded when deemed defective. And all three parents, as well as their community, lost the opportunity to welcome another member of the human family into the world.