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Exam Law and Ethics of Reproductive TechnologiesVrije Universiteit | 3 February 2022 | 08:30 h – 11:15 h
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QUESTION 1 (50 points)
Write an essay in which you develop your legal-ethical opinion about the following question:
do you think that the legal procedure for single men who resort to surrogacy should be
made less complex in order to discourage surrogacy tourism?
Build your essay around the following concepts:
a) the question as to what we owe to future children (use both Sandel and Glover’s book and
the ESHRE guidelines);
b) the requirement of medical necessity for surrogacy (discuss both Sandel’s and Glover’s
thoughts on the ‘medical boundary’);
c) the right to procreation and its limits (use relevant case law of the ECtHR).
You can earn points for the explanation of each concept and its application to the issue at
hand.
My answer
Traditional Surrogacy has been around for centuries. Even in the bible, some parts describe a
relation where a woman carries a child for another couple. However, with the arrival of new
reproductive technologies, this concept has changed. Nowadays, surrogacy can be divided into
“traditional surrogacy”, were a surrogate woman carries a child and also uses her own eggs to then
become both the biological and genetic mother of the future child, and “gestational surrogacy”,
were the surrogate mother get implanted a fertilized egg and thus only carries the future child. This
“new” variant of surrogacy is possible due to the IVF technology. For a large part of the population,
whether it is a single man or woman or a couple, the desire to have children is great. However, in
many cases it is “naturally” not possible and therefore surrogacy offers a perfect solution. But this
also brings up ethical issues. Through this essay I will go through multiple aspects that need to be
addressed before eventually answering the question: “should the legal procedure for single men
who resort to surrogacy be made less complex in order to discourage surrogacy tourism?”. I will
state my opinion on this question with the help of case law and literature.
According to glover, what we owe children is a decent chance of a happy life, in this way they can
live a life worth living. He talks about two concepts: “Procreative Perfectionism” and “zero-line
view”. With Procreative Perfectionism, he means to say that owe our future children the highest
chance on maximum welfare. With the zero-line view, he says that we owe the future child at least a
life that they would want to live.
Translating these views into the concept of surrogacy, I think Glover is in favour of having surrogacy
(when properly regulated). This is because the concept of surrogacy starts with a couple or a single
man/woman having trouble making children in the first place. I think in this case there is no big
difference between the composition of the couple, whether it is a single man (like Hoogwout) or a
infertile couple, since I think everyone should have equal chances to be able to raise a child. Just like
Hoogwout says: “My mother also raised me alone, so why not me?”.
So when any sort of couple experience trouble making a child, to then move into surrogacy
requires a lot of thought and great sacrifice (financially, morally and legally). Since the prospecting
parent(s) still want to undergo these steps, it therefore shows how much these parent(s) want to
, have children, this often also translates into taking optimal care of the future child(ren). This is due
to the fact that in taking all these steps towards surrogacy, the realization that making children is not
"normal" comes to the forefront. This is in line with Glover’s statements as Glover talks about
Procreative Perfectionism and thus owing our future child the highest chance on maximum welfare.
According to Sandal, we need to look at children like gifts and we should accept the giftedness of life
as it is. Pre-emptively selecting surrogate mothers based on their societal standards in traditional
surrogacy, is not something that Sandal would agree with. When doing so, one does not take a child
for what it is, but rather select traits that are desired. This could change however, when talking
about gestational surrogacy. Since this does not involve the genetic composition of the surrogate
mother and therefore ruling out any societal traits. On the other hand, even with gestational
surrogacy, the surrogacy could be commercialized and that is something which Sandal does not
agree with. Since this would translate to “creating” a child as a financial transaction, resulting in not
seeing a child how it should be seen, like a gift.
When looking at surrogacy from a ESHRE’s perspective, the ESHRE agrees with Glover: it should be
made sure that people do not have children when there is a chance of harming these children.
ESHRE refers here to the intermediate level. The ESHRE is in favour of preventive measures to
ensure that the child endures a life worth living. Also, it should be questioned whether the fertility
specialist or the surrogate mother has a responsibility towards the future child and if so, what the
practical implications of such responsibilities are.
In my opinion, surrogacy should be made available for prospective parents since this solves a big
problem with respect to infertile couples. But in doing so, I think this concept should be well
regulated and there the focus should lie upon avoiding commercial surrogacy as this touches upon a
lot of ethical dilemmas with regard to the future child. I therefore agree with both Glover and
Sandal, since I believe the parent(s) undergoing surrogacy have more than the best intentions for the
child and just as Glover says: “what we owe children is a decent chance of a happy life”, I think this
will come true. But I also agree with Sandal, that if we talk about commercial surrogacy, the way we
look at children could be harmed, as we then look at it as a product instead of a gift. Therefore I
think surrogacy could be a huge solution to a lot of fertility problems, but it should be well regulated.
The requirement of medical necessity for surrogacy is also something to take into account when
arguing whether the legal procedure for single men who resort to surrogacy should be made less
complex in order to discourage surrogacy tourism.
The requirement of medical necessity for surrogacy is also something to consider. Here, Sandel and
Glover also have a different views. Glover thinks we should judge this point by considering whether
designer babies would make the world more horrible than the world we have today. Potential
negative concepts that could make the world a lot worse are inequality and competition. These are
big challenging concepts, as we now lower the medical barrier and thus make it more accessible to
more people.
According to Sandal, the comparison between the parents’ obligation to cure their sick child on the
one hand and on the other hand enhancing their children with ART’s is a wrong thing to do. He
thinks that you cannot take medicine in instrumental terms.
When talking about the right to procreation and its limits with regard to single men resorting to
surrogacy, earlier case studies have been performed. A good example is the Mennsson vs. France
case. In this case an infertile couple sought for possibilities to procreation, just like Hoogwout did. In
this case, the margin of appreciation (should be) quite broad, since it is, among other things, a very
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