J Med Ethics: first published as 10.1136/jme.26.5.404 on 1 October 2000. Downloaded from

Journal of Medical Ethics 2000;26:404–409

Interpretations, perspectives and intentions in surrogate motherhood Liezl van Zyl and Anton van Niekerk University of Waikato, New Zealand and University of Stellenbosch, South Africa respectively

Abstract interpretations of their which they 2 In this paper we examine the questions “What does it might (and sometimes do) want to make”. Laura mean to be a surrogate ?” and “What would be Purdy thinks this concern is based on an image of an appropriate perspective for a surrogate mother to ideal motherhood that makes a disconcerting have on her ?” In response to the objection appeal to nature, thus ignoring the eVorts of the that such contracts are alienating or dehumanising women’s movement to transcend the identification since they require women to suppress their evolving of women with nature. She argues that there will perspective on their pregnancies, liberal supporters of always be women who being pregnant but who surrogate motherhood argue that the freedom to do not particularly enjoy child rearing, and that it contract includes the freedom to enter a contract to bear would be regrettable if social pressure to live up to a child for an infertile couple. After entering the the idealised version of motherhood prevented contract the surrogate may not be free to interpret her them from providing infertile women with babies pregnancy as that of a non-surrogate mother, but there they could not otherwise have. For some women is more than one appropriate way of interpreting one’s pregnancy and are not only a route to a pregnancy. To restrict or ban contracts would child, but a desired end in itself, and this desire be to prohibit women from making other particular must count for something with those who want to interpretations of their pregnancies they may wish to validate women’s experiences of gestation and make, requiring them to live up to a culturally labour.3 In much the same way, Lori Andrews sees constituted image of ideal motherhood. We examine surrogate motherhood as an outcome of the wom- three interpretations of a “surrogate pregnancy” that en’s liberation movement. One of the hallmarks of are implicit in the views and arguments put forward by feminism, she says, is the view that “biology is not ethicists, surrogacy agencies, and surrogate destiny”. Equal treatment of the sexes requires that

themselves. We hope to show that our concern in this decisions about men and women be made on other http://jme.bmj.com/ regard goes beyond the view that surrogacy contracts than biological grounds. For some women, the deny or suppress the natural, instinctive or freedom gained from the knowledge that not all conventional interpretation of pregnancy. women relate to all pregnancies in the same way (Journal of Medical Ethics 2000;26:404–409) added up to the freedom to become surrogate 4 Keywords: Surrogate motherhood; parental rights and mothers. responsibilities It follows from the liberal view that the right to privacy and autonomy can only be legitimately cur- tailed if there is a significant risk that innocent third Introduction parties will be degraded or harmed. There is no on October 1, 2021 by guest. Protected copyright. evidence to suggest that surrogacy is harmful to children, and we agree that it is more likely that Liberal individualists typically argue that the right banning or criminalising surrogacy would result in to enter surrogacy arrangements is a part or natural substantial harm to children. We have also argued extension of the right to personal autonomy. To elsewhere that surrogacy does not necessarily con- prohibit or invalidate such contracts would be to stitute the commodification or degradation of violate women’s right to self determination and children.5 But we do not think that our moral con- reinforce the negative stereotype of women as inca- cerns with contract pregnancy are exhausted after pable of full rational agency. Many opponents of the having considered women’s freedom to enter practice, including ourselves,1 have expressed a agreements and the possible harm to children. It is concern that surrogacy contracts can be dehuman- also necessary to examine the relationship between ising and alienating since they deny the legitimacy the surrogate mother and the fetus/child. The of the surrogate’s perspective on her pregnancy. In liberal individualist position tends to disregard the response to this concern Hugh McLachlan argues (to our mind) obvious fact that reproductive labour that there need not only be one interpretation of is not only a biological process that results in the one’s pregnancy that is appropriate; people can production of an at the end of the process. value the same thing or activity in diVerent ways: to Pregnancy and childbirth are not simply individu- make commercial surrogacy illegal would be “to alistic acts, but also, and perhaps more importantly prohibit mothers from making other particular so, social acts. When a signs a surrogacy

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Van Zyl, Van Niekerk 405 contract, she does not only commit herself to instead of a biological relationship is becoming undergo certain procedures, perform certain ac- increasingly popular among legal scholars, femi- tions and refrain from doing others. She commits nists, surrogacy agencies and the general public. herself to (trying to) conceive, bear and give birth to From this perspective, the diVerence between another human being, and in the process does form genetic and gestational surrogacy is not important, some kind of relationship with it. In other words, since in both kinds of cases the pregnancy was ini- the surrogate’s perspective on her pregnancy also tiated by the commissioning . In an act constitutes an interpretation of her (social and drafted by the National Conference on Uniform moral) relationship with the fetus/child. State Laws and recommended for enactment in the Contracts cannot prescribe or direct the parties’ United States, it is stated: “Upon birth of a child to feelings and perspectives, but they do aVect what is the surrogate, the intended parents are the parents considered an appropriate perspective within that of the child and the surrogate and her husband, if context. An appropriate perspective would, at the she is married, are not the parents of the child”.8 least, be one that facilitates the parties’ ability to Within this context the term “parents” refers to honour the terms of the contract. As McLachlan legal parents, that is, the set of parents which has the writes, when a woman enters a surrogacy agree- legal right and responsibility to raise the child. Yet ment “she is not ‘free’ to imagine that she has not most surrogacy agencies encourage the view that become a commercial surrogate mother nor ‘free’ the “intended parents” are the only real parents, to interpret her pregnancy as the pregnancy of a whereas the surrogate is not a real mother because non-surrogate mother. Such is the nature of she did not conceive the child with that end in contracts.” Whereas the bond between a pregnant mind. She simply acts as a gestational host or tem- woman and her unborn child is usually an integral porary caregiver to the developing fetus which, and appropriate part of her pregnancy, McLachlan from the moment of conception, belongs to the argues that perhaps, in the case of commercial sur- intending parents. Hence, we are made to believe, it rogate motherhood, such a bond is not and should would not be appropriate for the surrogate to see not be integral to the pregnancy.6 He does not say, herself as pregnant with her child, since she has however, what an appropriate interpretation of a voluntarily relinquished or sold her parental rights contract pregnancy might involve. In this paper we to the intending couple. examine some of the ways in which a surrogate mother may interpret her pregnancy and her relationship to the child she conceives, carries Logically untenable and gives birth to. Before we can even begin to If we leave aside, for the moment, the question address issues surrounding women’s ability to regarding who should be the legal parents of the enter into such contracts as autonomous agents, child after its birth, it becomes clear that it is logi- we need to answer the more fundamental question: cally untenable for a woman to think of herself as “What does it mean to become a surrogate pregnant with someone else’s child. We may grant mother?” that pregnancy and childbirth are not essential fea- http://jme.bmj.com/ tures of the -child relationship (for then no man will ever be a father), but neither is it feasible Conception in the mind to suggest that intentionality is the defining feature The first way in which a surrogate mother may of parenthood. This relationship cannot be made interpret her relationship with the fetus is “I am entirely contingent upon choice, however voluntary pregnant with someone else’s child”. In a sociologi- or informed that decision, which is shown by the cal study conducted by Ragoné surrogates are simple fact that men and women may become par- quoted as saying: “I never think of the child as ents without them ever, explicitly or implicitly, mine. After I had the baby, the mother came into intending or agreeing to do so. If a woman only on October 1, 2021 by guest. Protected copyright. the room and held the baby. I couldn’t relate that it becomes aware of her pregnancy when she goes had any part of me”; “I don’t think of the baby as into labour (as occasionally happens), are we to my child. I donated an egg I wasn’t going to be believe that she does not thereby become a mother, using”; “The baby isn’t mine. I am only carrying or that she gives birth to an , because she the baby”; and “I am strictly the hotel”. Hence both never consented to becoming a mother? It is true gestational and genetic surrogate mothers overlook that legal parenthood may, to a certain extent, be the biological relationship by reasoning that the determined by agreements or contracts, but the fact decisive feature of parenthood is the choice or of parenthood is not contingent upon an agree- intention to become a mother. She might say to ment. One may lose parental rights if one is guilty of herself: “I would have had a child if I wanted one, or abuse, but one does not thereby but I did not want a child”. In the same way the become an “ex-parent”. One may also waive or commissioning mother uses the idea of intentional- transfer parental rights and responsibilities, as hap- ity to resolve her lack of biological relatedness to the pens in the case of , but one does not child, reasoning that her role takes precedence over thereby cease to be a parent. When a woman the surrogate’s role since it was her desire for a child violates an agreement with her sexual partner to that facilitated the pregnancy; hence the notion avoid pregnancy, he nevertheless becomes the “conception in the mind”.7 father of that child. He might complain that he was The view that parenthood should be established tricked into fatherhood, but cannot deny his father- on the basis of contractually stated intentions hood.

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406 Interpretations, perspectives and intentions in surrogate motherhood

Apart from its many counterintuitive implica- then at the time of birth of the child do not put it up tions, the attempt to specify intentionality as the for adoption, then they have assumed responsibility essential feature of parenthood is morally unaccept- for it, have given it rights, so that they cannot now able since it is based on an implicit view of children withdraw support from it at the cost of its life as objects. To deny that the surrogate is the mother because they now find it diYcult to go on providing of the child amounts to viewing the relationship as for it”.11 This argument is based on the liberal view one of ownership, the surrogate as a “human incu- that moral requirements are either general duties bator” and the child as the “product” who bears no which we have towards everyone impartially, or relationship to her other than its partly being the specific obligations which are only formed by result of her physical labour. If, for instance, I sell voluntary agreements. In the surrogacy context the property rights to my car, it is no longer my car. But implication of this view is that the surrogate does if I sell or lose parental rights, there remains a sense not, simply by virtue of her biological condition, in which the child is my child, even if I have ceased have any special responsibilities or rights towards acting as its parent. Although I could still harbour the fetus/infant. Although the woman intentionally some sentimental feelings towards the car I sold, I and voluntarily becomes and remains pregnant, she have no claim to be recognised by others as having had entered into a preconception agreement with a relationship with it. But because emotional ties another couple whereby she explicitly surrenders or are central to the parent-child relationship, they transfers these rights and responsibilities to them. cannot be so easily ignored. New parental bonds The responsibilities the surrogate has towards the can be created, but their creation does not eliminate fetus during pregnancy are not based on her own or cancel an already existing bond. independent relation to the fetus but instead form an aspect of her contractual relation to the couple and the pregnancy she undertakes on their behalf. Prenatal adoption It is only as part of the surrogacy agreement that the A second possible interpretation of surrogate fetus has acquired a right to use and occupy the motherhood, suggested by the above arguments, woman’s body. The commissioning couple may acknowledges the fact that the surrogate is or therefore prescribe the surrogate’s behaviour dur- becomes a mother, but denies that she has any ing pregnancy, including obstetrical care, absti- parental rights or responsibilities. What is being nence from possibly harmful substances, amnio- bought by the commissioning couple is not the centesis and even abortion. child itself, but the “preconception termination of the mother’s parental rights”.9 From the moment of conception the fetus/child would therefore have two Mutual obligations real mothers (-to-be), but only one legal mother One objection to surrogacy contracts is that they (-to-be). In this sense the contract does not require presuppose that a woman has no intrinsic moral the surrogate to deny that she is or becomes a responsibility for a child she conceives and no rights mother. It only requires her to hand over the child to a relationship with him or her. Cahill argues that http://jme.bmj.com/ to the set of parents which has acquired the right to these arrangements insist on free choice about raise it. Those who favour this interpretation human relations to an extent that constitutes a vir- typically appeal to the infertile couple’s right to tual denial of important material and physical “noncoital reproduction”. They acknowledge that aspects of the relations of parenthood, and of moral the child may have more than one set of parents, obligation in general: “Individuals cannot choose in but think that it is in the child’s best interests if a all cases whether they have a certain moral obliga- primary is chosen before its birth. If a tion. The mutual obligations of biological family conflict over parental rights arises after the birth, members—children, parents, siblings—are a para- respect for the autonomy of couples and surrogates digmatic case of obligations that one cannot simply on October 1, 2021 by guest. Protected copyright. requires that the preconception agreement, which decide do not exist”.12 Similarly, in its assessment of made the very existence of the child possible, the social and moral dimensions of surrogacy the should prima facie be determinative, just as it would New York Task Force states that “parents have a be with sperm or egg donors.10 profound moral obligation to care for their Among those who support the prenatal separa- oVspring. Our legal and social norms aYrm this tion of biological parenthood and parental rights obligation by requiring parents to care for their and responsibilities is Judith Jarvis Thomson. In her children’s physical and emotional wellbeing. Surro- well-known paper on abortion she argues that we gate is premised on the ability and cannot have any special responsibilities towards willingness of women to abrogate this responsibility someone unless we have voluntarily assumed them. without moral compunction or regret. It makes the A set of parents do not simply by virtue of their obligations that accompany parenthood alienable biological relationship to the child who comes into and negotiable.”13 What possibly underlies this existence have a special responsibility for it. They objection is the fear that parental responsibilities may wish to assume responsibility for it, or they would be assumed, transferred, reclaimed and may not wish to. The child has no right against its retransferred at the whim of people who cannot mother for care and protection, unless it be implic- quite make up their minds. After all, if parental itly or voluntarily conferred upon it at some stage of rights and duties are contingent upon a decision, its development: “If a set of parents do not try to there seems to be no reason why the parties cannot prevent pregnancy, do not obtain an abortion, and agree to change its terms whenever it suits them,

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Van Zyl, Van Niekerk 407 and this would obviously be detrimental to the the intending parents. (One can only wonder what child’s welfare. To discard this fear, and following the appropriate penalty for such a breach would Thomson’s reasoning, we could simply insist that be.) the original contract be binding, that the parties be The attempt to separate biological and moral held to their contractually stated intentions. relationships ignores the fact that the surrogate has, Yet we think there is a more intimate way in by virtue of her being the gestational mother, which parenthood and parental rights and obliga- certain moral responsibilities to the fetus, and that tions are connected, regardless of intentions, so that these can only be aYrmed by any legal contract she the above objection cannot be that easily rejected. may enter into. In other words, her obligation is We cannot, as Andrews9 maintains, terminate directly to the fetus, not indirectly through an parental rights and duties prior to conception. Legal agreement with the intending parents. Surrogacy is norms relating to parental duties aYrm, rather than not analogous to child-caring services because, create, already existing moral obligations. We once she has conceived, the surrogate finds herself cannot, in the available space, develop an account in a (for all practical purposes) irreplaceable, of the origin or foundation of parental obligations, with someone who is totally and can only note that Western societies have for a dependent on her for its wellbeing. Unless she has long time embraced the notion that parents have a an abortion or miscarriage, this link cannot be sev- profound moral obligation to care for their ered nor can these duties be relinquished before oVspring. It is also widely accepted that this obliga- birth, simply because there is no one else who could tion commences well before birth. For instance, a take over responsibility for the welfare of the devel- father’s obligation to his child begins with his sup- oping fetus. In this regard the diVerence between port and care of the pregnant woman. The question gestational and genetic surrogacy is irrelevant. The to be asked is therefore whether we, as a society, are surrogate’s obligations during pregnancy stem from ready to discard these conventions, to view family her proximity to the fetus and are not contingent relationships as morally irrelevant, with rights and upon an agreement with the commissioning duties instead being conferred or assumed by couple. The surrogate cannot choose not to be mutual agreements. One of the implications of morally responsible for the fetus while it remains in accepting the separation of parenthood (as a her womb. In this sense, biology certainly is destiny. relationship rooted in biology) and parental rights and obligations (as a relationship based on voluntary agreements), is that we could not expect Commissioned adoption a father to fulfil certain obligations if he never con- The above line of thought leads to a third possible sented to do so. He would not be able to demand an interpretation of surrogacy, where contractually abortion, of course, and neither is his status as a stated intentions only determine who the social parent contingent upon a decision. But one can, parents of the child would be. What is being paid along “biology is not destiny” lines, argue that he for or transferred is therefore not motherhood, nor should not be expected to assume parental respon- preconception termination of parental rights, but http://jme.bmj.com/ sibilities simply by virtue of a biological relation- the right and responsibility to rear the child. The ship. Because the woman decided not to abort, she surrogate would be registered on the birth certifi- is responsible for the child. cate, with the child subsequently being adopted by the intending parents. The surrogate’s perspective on her pregnancy could therefore be: “I am expect- Ambiguous relationship ing my child, and am both morally and legally The prenatal separation of biological and moral responsible for its welfare, although I intend to relationships places the surrogate in a highly relinquish parental rights to the adopting couple ambiguous relationship with the fetus. As a woman immediately after birth”, or simply: “I do not on October 1, 2021 by guest. Protected copyright. who has a right to bodily integrity, she has a right to intend to raise my child”. an abortion, but as a surrogate, she would have no This interpretation is in line with the provisions right to determine the destiny of the fetus. Indeed, of English law. (According to the Human Fertilisa- through entering the contract she has given the tion and Embryology Act the birth mother, whether fetus a right to inhabit her body, which she cannot or not she is the genetic mother, is the legal mother withdraw without the couple’s consent. Ragoné until and unless an adoption procedure is under- questioned a number of surrogates who were taken.) But it is quite far removed from the way in “opposed to abortion for themselves”, but who which surrogacy agencies encourage women to acknowledged that they would undergo an abortion interpret their pregnancies. Ragoné found that the if that was the couple’s decision.7 Although surrogate’s perception that the child is not her own surrogacy contracts usually make it clear that the tends to shape her entire experience of surrogacy. stipulation regarding abortion is unenforceable, the Her ability to separate herself from her pregnancy surrogate’s having (or not having) an abortion and child is reinforced by psychologists employed against the couple’s wishes would still constitute by these agencies. In one instance where therapy breach of contract. And if the pregnant woman designed to maintain the “desired state of mind” engages in behaviour that is potentially harmful to was withdrawn after the agency went bankrupt, all the child, it would not involve a neglect of parental three surrogates expressed intense separation anxi- responsibilities (since she has none), but would ety: “When the support services are removed and constitute a violation of the legal agreement with the structure of the program dissolves, it is diYcult,

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408 Interpretations, perspectives and intentions in surrogate motherhood if not impossible, to maintain the prescribed and her moral obligations towards the child seriously is desired boundaries between the surrogate and her by making sure well before conception that the child; hence, surrogates report feelings of loss, pain, intending parents are both willing and capable of and despair when parting with the child”.14 The caring for the child. For these reasons altruistic very success of surrogacy arrangements therefore surrogacy is morally preferable to commercial sur- depends on how well the surrogate can deceive her- rogacy. In other words, the moral acceptability of self into believing that she is not a mother but sim- surrogacy does not turn on whether money is ply a temporary care-giver. Whereas the surrogate’s exchanged in return for parental rights or child- belief that she is not pregnant with her child is a bearing services, but on the nature of the relation- clear form of self deception, unveiling it as such ship between the commissioning parents and the almost certainly would give rise to greater distress surrogate mother. and alienation at having to relinquish a child she knows to be hers. For the commissioning parents thinking of Conclusion surrogacy as analogous to adoption has the One may agree with the liberal view that women disadvantage that they cannot view the surrogate may interpret their pregnancies and their relation- simply as “the kind woman who made it possible ship with the fetus in diVerent ways. A pregnant for them to have their own family”. Even to woman cannot, however, deny that she finds herself acknowledge that they would forever be indebted to in such a relationship, and neither should she deny her, or that money cannot compensate her for this her moral responsibility for the fetus’s welfare. great service would still be to deny the fact that Contractually stated intentions cannot determine there will always be a sense in which she is a mother who the “real mother” is or whether the birth of their child. While surrogacy arrangements give mother has any moral responsibilities towards her rise to more than one maternal bond or real fetus. AYrming the surrogate’s motherhood does mother, participants subsequently seek to deny this not, however, require a denial of the intending par- by insisting upon modelling their households ents’ bond with their child. Against those who view directly along the lines of the . (This the genetic relationship as the essence of parent- is perhaps best symbolised by the infertile woman hood, as well as those who propose that intention be who wore a little pillow under a maternity gown recognised as the essence, we have argued that we when she visited her husband’s family, and would should not attempt to isolate the essence or defini- not let their Mexican surrogate leave the house.) tive aspect of parenthood since parental bonds are The very point of surrogacy is usually to receive the not mutually exclusive. To be a parent, one must child unencumbered by any ongoing relationship possess some of the defining features of parent- with the woman who “produced” it. hood, such as a gestational, genetic, intentional or Thinking of contract pregnancies as “commis- social relationship, but all of these features need not sioned ” requires that both parties be common to all parents. Acknowledging the http://jme.bmj.com/ acknowledge the surrogate’s motherhood. If the possibility of multiple parenthood has the implica- parent-child relationship constitutes more than can tion that the adoptive or intending parents cannot be captured in the language of legal rights and insist on modelling their family directly along the responsibilities, the social parents should recognise lines of the nuclear family. Having reinterpreted the surrogate’s role by including her in the child’s parenthood, we should also be prepared to reinter- life in an ongoing and intimate way. They cannot pret the family. insist on traditional ends if they use non-traditional means. Because parenthood is not equivalent to

Liezl van Zyl, Dphil, is Lecturer in Philosophy at the on October 1, 2021 by guest. Protected copyright. ownership, transferring parental rights can only University of Waikato, New Zealand. Anton van create more parents; it cannot annul an already Niekerk, Dphil, is Professor of Philosophy at the existing bond. The implication of this for the surro- University of Stellenbosch, South Africa gate mother is that she can only take her own moral responsibilities towards the child seriously if she is well acquainted with the intending parents before entering the agreement. Although there are clear References similarities, it is important to notice the diVerences 1 Van Niekerk A, Van Zyl L. The ethics of surrogacy: women’s between commissioned and traditional adoptions. reproductive labour. Journal of Medical Ethics 1995;21:345-9. 2 McLachlan HV. Defending commercial surrogate motherhood In the adoption context, circumstances prevent against Van Niekerk and Van Zyl. Journal of Medical Ethics those morally responsible for the child from rearing 1997;23:344-8. In this paper McLachlan gives a detailed it. Finding suitable parents among the many people explanation of the relation between morality and the law, argu- ing that the possible immorality of surrogacy arrangements wanting to adopt a child is a way of taking their does not constitute good reason for prohibiting them. We abso- responsibility for the child’s welfare seriously. By lutely agree that immorality is no necessary ground for illegal- contrast, the surrogate is not in a position to refuse ity. But our original paper (see reference 1) does not contain a single phrase to suggest that we were in favour of banning sur- transfer of legal parenthood if she discover that the rogacy on the grounds of our moral convictions. Our paper was intending parents are not suitable for raising the about the moral status of surrogacy, and not about its desired child. The surrogacy agreement has given rise to legal status. His response is therefore a good example of setting up a straw man argument and shooting it down. Our focus in the formation of a specific set of expecting parents. the present paper is not with the complex legal issues The only way in which a surrogate mother can take surrounding the question whether surrogacy contracts should

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Van Zyl, Van Niekerk 409

be enforced, regulated or criminalised. Instead, we examine form State Laws in Washington, DC, 1988 Jul 29-Aug 5: some of the moral implications of a surrogate mother’s section 8a. interpretation of her pregnancy and her relationship with the 9 See reference 4:170. fetus/child. 10 Robertson JA. Procreative liberty and the state’s burden of 3 Purdy LM. Another look at contract pregnancy. In: Holmes proof in regulating noncoital reproduction. In Gostin L, ed. HB, ed. Issues in reproductive technology: an anthology. New York Surrogate motherhood: politics and privacy. Bloomington and and London: Garland Publishing, 1992: 309-11. Indianapolis: Indiana University Press, 1990: 35. 4 Andrews LB. Surrogate motherhood: the challenge for 11 Thomson JJ. A defence of abortion. Philosophy and Public feminists. In Gostin L, ed. Surrogate motherhood: politics and pri- V vacy. Bloomington and Indianapolis: Indiana University Press, A airs 1971;1:65. 1990: 168. 12 Cahill LS. The ethics of surrogate motherhood: biology, 5 Van Niekerk AA, Van Zyl LL. Commercial surrogacy and the freedom, and moral obligation. In Gostin L, ed. Surrogate commodification of children: an ethical perspective. Medicine motherhood: politics and privacy. Bloomington and Indianapolis: and Law 1995;14:163-70. Indiana University Press, 1990:154, 163. 6 See reference 2: 346-7. 13 New York State Task Force on Life and the Law. Surrogate 7 Ragoné H. Surrogate motherhood: conception in the heart. parenting: analysis and recommendations for public policy. New Boulder, San Francisco, Oxford: Westview Press, 1994: 75-8. York: New York State Task Force on Life and the Law, 1988 8 Uniform Status of Children of Assisted Conception Act, May. drafted by the National Conference of Commissioners on Uni- 14 See reference 7: 78-80. http://jme.bmj.com/ on October 1, 2021 by guest. Protected copyright.

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