During this year's "two sessions," Zhu Lieyu, a deputy to the National People's Congress and director of Guangdong Guoding Law Firm, will submit suggestions calling for "conditional permission for legal surrogacy," "cracking down on illegal surrogacy," and "banning the black market for surrogacy." Following the "surrogacy and suspected abandonment" incident of artist Zheng Shuang, Zhu Lieyu's suggestion once again aroused widespread concern in public opinion. Is surrogacy really useless? If there is still room for justification, what are the moral justifications? If it's really wrong, what's wrong? Today, Chang'an Hubei recommends an article by Professor Cao Gang, director of the Ethics and Moral Construction Research Center of Chinese Min University, "Giving a Moral Reason for "Surrogacy"".
Give "surrogacy" a moral justification
With the banning of Zheng Shuang, Zheng Shuang's "surrogacy and suspected abandonment" incident came to an end, but the controversy over surrogacy caused by it is still hot. Internet public opinion seems to condemn surrogacy one-sidedly, but is surrogacy really useless? If there is still room for justification, what are the moral justifications? If it is really wrong, what is wrong?
Why seek moral reasons for "surrogacy"?
There must always be a reason for doing things, otherwise it is incomprehensible. There are many reasons, and there is a reason that can both reassure oneself and avoid being gossiped about, which is a moral reason, a reason that can justify the behavior. Moral reasoning has three characteristics: One is universal. "I don't want you to feel, I want to feel", this quote comes from Huang Xiaoming, a guest of the Mango TV variety show "Chinese Restaurant Season 3", which is called "Ming yan ming". This is the logic of the domineering president, but it is not a moral justification for behavior. The moral reason for behavior should be, I want me to feel, I want you to feel, and I want him to feel, that is, everyone feels. In Kant's tone, true moral reasons can be generalized, and any reasonable person would agree with them. The second is standardized. Moral justification gives us the obligation to behave as it should be, not a factual description of the causal relationship of why it should behave. For example, why does Zheng Shuang want to find a surrogate? The melon eaters said it was because she had to stay in shape, and her dad said it was because she had a physical problem. But these reasons are only a description and explanation of Zheng Shuang's surrogacy motives, and do not show that her surrogacy behavior of finding someone else to help her give birth is good, right, and deserved. The third is practical. Moral reasoning doesn't just provide the power to defend, it gives us the power to act. Once we feel there is a moral reason to act in this way, it necessarily motivates us to act. In other words, if you think surrogacy is legitimate, then, put yourself in the shoes of surrogacy, you will be willing to choose surrogacy, and if you are a legislator, you will be willing to push for the legalization of surrogacy.
If we are to give surrogacy a moral justification, we must conform to the nature and characteristics of the moral justification. The problem is that the current surging internet public opinion almost one-sidedly deny the legitimacy of surrogacy, why should we find a moral reason for surrogacy?
1. The moral nature of surrogacy is still in stone. If there is a conclusive conclusion, there is no need to think about it. For example, in the traditional sense of "borrowing the womb to give birth to a child", such as a pawn wife, a hostage wife, a second milk package, etc., is improper, this has a moral consensus, to seek moral reasons for this, either in vain, or with ulterior motives. But surrogacy is different, surrogacy will be IVF reproductive technology like a wedge, embedded in the natural fertility model of "marriage, sex and fertility", the integration of "marriage, gender union, conception, pregnancy, childbirth and nurturing" natural reproductive process decomposition and separation, not sex can also be born, born without childbearing, the birth mother is not mother, which makes the original fertility ethics and family ethics compatible with the natural fertility model lose part of the explanatory power and normativity, the old rules can not solve new problems. At this time, what we have to do is not to solve the problem by eliminating the problem, but to admit that surrogacy is a moral problem, rather than insisting that it is morally unreasonable, as for the ways and means to solve this problem, we may as well try to do it slowly.
2, surrogacy is an urgent and important practical problem, because it involves the major interests of others and society, it needs to be regulated through legislation. But legislation needs moral reasons, and of course no moral reasons can be legislated, but such laws can only be evil laws, and it is difficult to get the approval of society and consciously abide by the law. As far as the legislation on surrogacy is concerned, there are different regulations in various parts of the world, some strictly prohibit any surrogacy, some have the conditions to open surrogacy, and some allow surrogacy, reflecting the differences in the moral judgment and evaluation of surrogacy by legislators in various countries. This is also the reason why Zheng Shuang wanted to run to the United States to get pregnant. In the case of China's legislation, on December 27, 2015, the Standing Committee of the Twelfth National People's Congress passed a decision on amending the Population and Family Planning Law, but the finally passed legislation deleted the provision in the Draft that "it is forbidden to buy and sell sperm, eggs, fertilized eggs and embryos, and it is forbidden to carry out surrogacy in any form". Li Mingshun, vice president of the Marriage and Family Law Research Association, explained: "The formulation of a law is to make clear provisions on issues that have been agreed upon, and controversial issues can be temporarily excluded, which can not only improve the efficiency of the promulgation of the law, but also prevent controversial issues from being too hastily written into the law, so as not to have a greater negative impact." It can be seen that the relevant legislation on surrogacy needs to further seek a moral consensus on surrogacy.
3, surrogacy is a large family, its members are numerous, the situation is different, good and bad, good and evil, can not be generalized. We can distinguish between full surrogacy and partial surrogacy based on whether there is a genetic connection between the surrogate mother and the conceived child; we can also distinguish between commercial surrogacy and non-commercial surrogacy according to whether the surrogate mother is for the purpose of earning money; we can also distinguish between medical surrogacy and non-medical surrogacy according to whether the reason for surrogacy is fertility. These classifications and their permutations give rise to a variety of specific types of surrogacy, and different specific types of surrogacy have different degrees of legitimacy. Zheng Shuang's father, Zheng Chenghua, said that at that time, Zheng Shuang and Zhang Heng had a good relationship, but Zheng Shuang could not have children because of physical reasons, so he chose surrogacy. Emphasizing the physical causes of surrogacy, the subtext is that medical surrogacy is more legitimate than non-medical surrogacy, so that it can be more morally understood by everyone. It can be seen that if we want to judge whether the act of surrogacy is legitimate, it is necessary to divide the different types of surrogacy and seek different moral reasons.
What are the moral reasons to consider for surrogacy?
The High Court of Japan once decided a case. Unable to have children, Nobuhiko Takada and Akiki Xiangjing gave birth to twins through IVF techniques, and an American woman conceived a pair of twins, and the Nevada court found that the parent-child relationship was established. After returning to Japan, he declared his own child's household registration, but the mayor of Shinagawa District, Tokyo, refused to register him on the grounds that the birther was not Xiang Yaji, and refused to register him. Unsatisfied, the couple appealed to the Tokyo Family Court, the District Court, and the High Court, requesting that the decision be revoked. Although there is no existing law to be invoked, the Tokyo High Court has given priority to the safety and dignity of the surrogate mother, and has requested the mayor of Shinagawa To accept the application for registration, taking into account the well-being of the child and the requirements of public order and good customs in society. Obviously, the three reasons sought by the Japanese High Court are actually moral reasons. The question is, can these three moral reasons justify surrogacy? To what extent and what type of surrogacy is defended?
1. Priority is given to the best interests of children
In the jurisprudence of the High Court of Japan, priority is given to the safety and dignity of the surrogate mother. We believe that the well-being of children deserves even greater priority. On the one hand, children are vulnerable beings, and the interests of surrogates are more vulnerable than other children. This is because surrogacy is more like an incident planned by entrusted parents, surrogate mothers, institutions, doctors, etc., everyone has a plan, and the child as a carrier of many intentions, its intrinsic value and interests are easy to be ignored and violated. The interests of children should therefore be specially protected by law. On the other hand, the healthy growth of children not only affects people's lives, but also affects the happiness of a family, and at the same time, the interests of children are also a major public interest of society. We often say that children are the future of the motherland, the hope of the nation, and the tomorrow of mankind. Starting with dolls, of course, priority should be given to the best interests of children.
The "principle of the best interests of the child" is a fundamental principle established by the United Nations Convention on the Rights of the Child, which basically means that "all actions concerning children, whether carried out by public or private social welfare institutions, courts, administrative authorities or legislative bodies, shall have the best interests of the child as a primary consideration." "Surrogacy is, of course, about the child's behavior, the ultimate appeal of surrogacy is a healthy baby, and the principle of the best interests of the child requires that the best interests of the child should be given priority in all the interests involved in surrogacy. The so-called interests of children are the various material conditions and spiritual support needed for their healthy growth; the best interests of children are the optimal combination of children's various interests in specific situations; the cornerstone of children's best interests is the stable and continuous dependence relationship full of respect and care that children need for healthy growth.
According to this moral consideration, complete surrogacy is better than incomplete surrogacy, because there is a blood connection between a fully surrogate child and the entrusting parent, and the three forces of blood, upbringing and emotion are twisted into a rope, which can ensure the long-term consolidation of dependence. Again, according to this consideration, non-commercial surrogacy is superior to commercial surrogacy. The logic of commercial surrogacy is proliferation, children inevitably become items for sale and purchase, and abandoned babies are like returns. Last year Ukrainian surrogacy companies were reportedly forced to "hoard babies" because some buyers did not have enough money to pay off the balance. This "infant refusal" shows that commercial surrogacy is detrimental to the best interests of the child and should be severely prohibited.
2. The dignity and interests of the surrogate mother must be considered
Jurists like to talk about "rights" and argue that reproductive rights can justify surrogacy. Man has the freedom to procreate, the freedom to decide when to be born, how often to give birth, and to choose the way of birth. The problem is, you have the freedom to procreate, but why should someone else give birth to you? This doesn't make sense. Some scholars have turned around and believed that surrogate mothers have the right to the body, have the freedom to dominate their own bodies, and voluntarily provide the uterus or rent the uterus, which is the right of the person to dominate the body. But is the body really owned by the self? It is really difficult to say who the body belongs to, indicating who the body belongs to. Taking ten thousand steps back, even if the body is its own, then why does civilized society forbid the sale of oneself into slavery? What about the ban on organ trading? This shows that the body is a very special thing, and the particularity lies in the fact that it not only has instrumental value, but also has purposeful value, and it is something that carries human dignity and has intrinsic value, and it is not something that can be disposed of at will, at least it cannot be bought and sold at will.
Economists talk about "welfare." Maximizing benefits is the fundamental guideline for justifying surrogacy. In 2013, the BBC produced a documentary, The Surrogate, focusing on India, which allows commercial surrogacy. Dr. Nena Patel searched for surrogate mothers for hundreds of families and delivered hundreds of IVF babies herself, some calling her "Guanyin" and some calling her an aider. Her self-defense is that the two basic needs of human beings are survival and reproduction. Surrogacy solves both the problem of human reproduction and the survival of the poor. In other words, surrogacy increases the overall welfare of society, so why not? This is actually the routine of economists, hello, I am good, hello everyone, is really good. The question is, can the benefits of getting money be compared to the benefits of having children? Moreover, even if everyone gains, is it okay for everyone to get too much disparity with each other?
What ethicists have in mind is "obligation," and it goes straight. Whether it is rights or welfare, these are all true, but whether it is the exercise of rights or the maximization of welfare, there must be moral marginal constraints. Furthermore, the surrogacy relationship is an exchange of tools and purposes for each other. In the instrumental sense, the key point of morality is not that the infertile person has his own child through the act of surrogacy; nor is it that the surrogate mother provides her own womb to help others give birth to a child, and thus obtains material rewards, psychological experiences or spiritual pleasures brought about by good deeds, but that exploitation is not allowed. Exploitation is an unjust use of the resources of others, that is, in the process of surrogacy, the entrusted parents and the surrogacy intermediary cannot use their advantages in power, economy, information and knowledge to unfairly use the surrogate services of the surrogate mother. In other words, fair and reasonable compensation for the efforts of the surrogate mother is a moral requirement at this level. On the other hand, in the sense of purpose, surrogate mothers should receive the respect and care they deserve. Respect is an affirmation of the personal dignity of the surrogate mother, that is, the surrogate mother cannot be regarded as a tool for fertility, the uterus cannot be used as an "incubator", and all this cannot be done with money. The so-called care is to experience the pain of the mother's fertility and the emotional harm caused by separation from the baby.
It can be seen that ethics recognizes rights, but also emphasizes care; values welfare but values fairness more; accepts consideration but strictly adheres to the bottom line of dignity. Based on such moral considerations, complete surrogacy is superior to local surrogacy, because the child of local surrogacy is related to the birth mother, and the mental harm caused by birth separation is greater. Based on the same moral considerations, non-commercial surrogacy is superior to commercial surrogacy, because commercial surrogacy is dominated by the logic of proliferation, which inevitably brings about the evil consequences of exploiting women and using people as reproductive tools.
3. We must consider the public order and good customs of society
Public order and good customs are a compound concept. Customs refer to the fashions and customs that have been accumulated over a long period of time. The types and contents of customs are diverse, and the quality is uneven. Good customs are selected from these uneven customs, based on the needs of public order and the moral consensus of society. As far as surrogacy is concerned, there are three main aspects of public order and good customs involved.
One is sexual morality. In the Zheng Shuang surrogacy incident, Zheng Shuang accused Zhang Heng of cheating, if true, Zhang Heng is indeed a scumbag, but this has nothing to do with surrogacy itself. Because surrogacy is different from the traditional "birth of a child through the womb", surrogacy is the use of IVF technology, using the sperm and eggs of both husband and wife to form a fertilized egg, and then transplanting the fertilized egg into the surrogate's uterus. There is no extramarital sex here, and there is no sexual morality involved.
The second is family ethics. The biggest problem with surrogacy is the potential for confusion in family ethics. The birth mother is not a mother, which contains the difficulty of determining the parent-child relationship, and various family ethical issues are derived from it. However, most of these family ethics issues can be avoided through targeted institutional design. The Department of Health of the Executive Yuan of Taiwan once drafted the Artificial Reproduction Law, and the legislators have made various responsive system designs in response to many ethical questions, such as not entrusting surrogacy to relatives of different generations such as the four parents of the husband and wife to avoid causing formal incest. In fact, the criteria for determining the parent-child relationship, the qualification requirements of the surrogate subject, the protection of the rights of the surrogate mother, the restrictive provisions of the surrogacy agency, the cautious limitation of the scope of surrogacy, etc., can all be designed with the help of targeted systems, so as to effectively avoid the moral hazard of violating public order and good customs to a certain extent.
The third is the birth system and the country's population management order. Surrogacy is only a necessary supplementary way in the way of fertility, and it can never be the mainstream way of having children, so it will not have an impact on the monogamous marriage system, the birth system and the country's population management order. So there's no need to worry about the facts.
Finally, the connotation of public order and good customs is not static, but changes with the development of the times. For example, homosexuality used to be ostracized by the dominant morality of society, but now homosexuality is not only decriminalized, but also legalized. The use of techniques such as drug contraception, artificial insemination and in vitro fertilization has also caused fierce moral controversy and is prohibited by law. But now it is also gradually getting more tolerance and recognition. It is conceivable that with the development of the times, society's tolerance and acceptance of surrogacy will also become more and more.
Is it possible to legalize surrogacy?
According to the above moral considerations, different types of surrogacy have different degrees of legitimacy, and the prospects for their legalization are also different.
1. Complete, non-commercial, medical surrogacy is the most morally justified and the most promising type of surrogacy to be legalized. But the fullness of moral justification is only a necessary condition for legalization, not a sufficient condition. Like euthanasia, there is a moral consensus on negative euthanasia, but legislators are still cautious. This is because the legislator is realistic, and the moral reason is the fundamental reason for the legislation, but the legislator also has to weigh the various interests of politics, economy, culture and society, and at the same time examine whether the social conditions of various realities are available; the legislator is also cautious, taking one step at a time is a prudent legislative posture, radical legislation often brings unexpected moral hazards; the legislator is also pessimistic, he has a natural sensitivity to the evil of human nature, and is always afraid of pushing down the first domino. There may be uncontrollable consequences. In this way, although complete, non-commercial, and medical surrogacy is morally justified, it depends on the time, place, and people, and whether the conditions are met.
2, complete, non-commercial, non-medical surrogacy has a certain legitimacy, but this type of surrogacy due to the addition of the word "non", detracts from the power of moral defense. This is because the non-medical surrogacy population is those women with fertility, these people want to have children, but also can have children, but do not want to give birth, may be afraid of out of shape, afraid of delaying career, or afraid of the pain of childbirth, so "borrow the belly to give birth". Here, it is clearly unfair for surrogate mothers to take the significant risk of conceiving and giving birth to the personal wishes of the other party, but to satisfy the icing on the cake of the other party; on the other hand, non-medical surrogacy is more potentially harmful to the interests of the child than medical surrogacy, especially the possibility of abandonment. In the Zheng Shuang surrogacy incident, a sentence "The child really can't be beaten after 7 months, I am bored to death", which foreshadows the possible situation of those innocent babies. The American Society of Reproductive Medicine recommends that surrogate mothers should only be used if there is a medical problem that prevents the intended parents from conceiving on their own, or poses a significant risk of death or damage to the woman or fetus.
3. Any surrogacy that contains some surrogacy factors is not legitimate. All types of surrogacy containing some surrogacy components may lead to the splitting of the mother's role, the difficulty of children's identity, causing confusion about family ethics, and at the same time, it will also bring greater mental harm to the pregnant mother, after all, the child born is related to herself, and it is more difficult for the surrogate mother to give up the emotional bond with the child. The famous surrogacy "Baby M" case in American history is a typical example.
4. Any surrogacy containing commercial surrogacy ingredients is not conducive to protecting the best interests of children, nor is it conducive to protecting the dignity and interests of surrogate mothers, and it is also contrary to the public order and good customs of society, with the greatest illegitimacy, and should be strictly prohibited.
Source: China Ethics Online