Commentary on ACOG Committee Opinion Number 88, November 1990 "Ethical Issues in Surrogate Motherhood" Howard W. Jones, Jr, MD Department of Obstetrics and Gynecology Eastern Virginia Medical School Norfolk, Virginia
s the American College of Obstetricians and Gynecologists (ACOG) surrogacy statement points out, there seems to be a growing sentiment in ethics, in law, and in actuality that there is more and more acknowledgment that consenting adults have wide latitude in accomplishing their goal of bearing or begetting children. It can be argued that uterine surrogacy can be justified under this rubric. However, the ACOG statement further points out that the right to procreate "can be constrained by moral obligations to avoid harming other affected partners, including any child that may result from the agreement." In view of the absence of peer review data regarding harm (or the contrary for that matter) to "affected parties," it would seem to follow that it is essential that such data be collected in order to validate any position on surrogacy, let alone that put forth by the ACOG statement. Unfortunately, no mechanism has been provided in the ACOG position to require the collection of such data. In the view of this commentator, the ACOG position would be infinitely more likely to promote the common good if it insisted that surrogacy leading to an ethically acceptable public policy be conducted as any other scientific experiment, ie, with a proper experimental design and p~oper data collection, followed by rigorous analysis and peer review. To be sure, the ACOG statement recommends that " . . . for the near future, surrogate parenting arrangements be overseen by private, nonprofit agencies with credentials similar to those of adoption agencies. Such agencies should seek to ensure that the interests of all involved parties are adequately protected. The agencies should c o n d u c t confidential counseling and screening of candidate surrogates and candidate commissioning parents. Their primary goal should be to promote the welfare of the future child, as well as the welfare of any existing children of the surrogate." Note that there is not one word about data collection or peer review. An experimental scientific approach to surrogacy is clearly required, because there is uncertainty as to which side of the scales will rise when ben-
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JONES: COMMENTARY
© 1991 by The Jacobs Institute of
Women's Health 1049-3867/91/$3.50
WHI Vol. l, No. 3 Summer 1991
efits are balanced against harms. The several court custody battles, not to mention the death of a surrogate while pregnant, catch an attentive ear. Have the benefits been evaluated in a peer review manner? Will it be possible to obtain good data short of regulation? One would hope so, but let's face it--entrepreneurial business has a different ethic and goal than science. Because surrogacy, particularly of the type where the surrogate provides both egg and uterus, involves more business than science, it seems that good science without regulation is unlikely to emerge. The ACOG position is "reluctant to propose a specific regulatory framework." For reasons just mentioned, it is this commentator's view that there is no alternative. Regulation conjures unfeeling government at some level, but regulation could be voluntary, as the Voluntary Licensing Authority has shown so convincingly in the United Kingdom. Surrogacy could come under the National Advisory Board on Ethics of Reproduction, a joint project recently announced by ACOG and by the American Fertility Society (AFS). This voluntary board, composed of individuals of national stature, which when operational, would be completely independent of ACOG and AFS, could evaluate and approve suitable programs. Enforcement would be in the hands of the public, who would need to be educated that approved programs are most likely to operate in everybody's best interest. In this view, as things now stand, a proper evaluation of surrogacy and, therefore, a reliable public policy is very unlikely to occur without some form of regulation for the simple reason that entrepreneurialism does not lend itself to unprejudiced data collection and rigorous scientific analysis.
WHl Vol. 1, No. 3 Summer 1991
JONES: COMMENTARY
139
s the American College of Obstetricians and Gynecologists (ACOG) surrogacy statement points out, there seems to be a growing sentiment in ethics, in law, and in actuality that there is more and more acknowledgment that consenting adults have wide latitude in accomplishing their goal of bearing or begetting children. It can be argued that uterine surrogacy can be justified under this rubric. However, the ACOG statement further points out that the right to procreate "can be constrained by moral obligations to avoid harming other affected partners, including any child that may result from the agreement." In view of the absence of peer review data regarding harm (or the contrary for that matter) to "affected parties," it would seem to follow that it is essential that such data be collected in order to validate any position on surrogacy, let alone that put forth by the ACOG statement. Unfortunately, no mechanism has been provided in the ACOG position to require the collection of such data. In the view of this commentator, the ACOG position would be infinitely more likely to promote the common good if it insisted that surrogacy leading to an ethically acceptable public policy be conducted as any other scientific experiment, ie, with a proper experimental design and p~oper data collection, followed by rigorous analysis and peer review. To be sure, the ACOG statement recommends that " . . . for the near future, surrogate parenting arrangements be overseen by private, nonprofit agencies with credentials similar to those of adoption agencies. Such agencies should seek to ensure that the interests of all involved parties are adequately protected. The agencies should c o n d u c t confidential counseling and screening of candidate surrogates and candidate commissioning parents. Their primary goal should be to promote the welfare of the future child, as well as the welfare of any existing children of the surrogate." Note that there is not one word about data collection or peer review. An experimental scientific approach to surrogacy is clearly required, because there is uncertainty as to which side of the scales will rise when ben-
A
138
JONES: COMMENTARY
© 1991 by The Jacobs Institute of
Women's Health 1049-3867/91/$3.50
WHI Vol. l, No. 3 Summer 1991
efits are balanced against harms. The several court custody battles, not to mention the death of a surrogate while pregnant, catch an attentive ear. Have the benefits been evaluated in a peer review manner? Will it be possible to obtain good data short of regulation? One would hope so, but let's face it--entrepreneurial business has a different ethic and goal than science. Because surrogacy, particularly of the type where the surrogate provides both egg and uterus, involves more business than science, it seems that good science without regulation is unlikely to emerge. The ACOG position is "reluctant to propose a specific regulatory framework." For reasons just mentioned, it is this commentator's view that there is no alternative. Regulation conjures unfeeling government at some level, but regulation could be voluntary, as the Voluntary Licensing Authority has shown so convincingly in the United Kingdom. Surrogacy could come under the National Advisory Board on Ethics of Reproduction, a joint project recently announced by ACOG and by the American Fertility Society (AFS). This voluntary board, composed of individuals of national stature, which when operational, would be completely independent of ACOG and AFS, could evaluate and approve suitable programs. Enforcement would be in the hands of the public, who would need to be educated that approved programs are most likely to operate in everybody's best interest. In this view, as things now stand, a proper evaluation of surrogacy and, therefore, a reliable public policy is very unlikely to occur without some form of regulation for the simple reason that entrepreneurialism does not lend itself to unprejudiced data collection and rigorous scientific analysis.
WHl Vol. 1, No. 3 Summer 1991
JONES: COMMENTARY
139
