Surrogacy in Singapore: Morality and the Law

I. INTRODUCTION

This paper addresses Singapore’s law on Surrogacy in the context of the proposition, ‘the dictates of law and those of morality will often coincide, but law does not, and should not, exist to impose one particular code of morality.’ Section II, defines the law, morality, and their overlap. Section III, addresses the principled limits of law, in particular, the Harm Principle and Legal Moralism. Section IV, considers Singapore’s ban on surrogacy, and arguments in the context of parentage, exploitation, consent, and child welfare. Finally, Section V, discusses whether the ban is due to the Harm Principle or Legal Moralism.

II. DEFINITION OF THE LAW, MORALITY AND ITS OVERLAP

It is important, at the outset, to define the parameters for the analysis of the proposition at hand. ‘Law’ can mean different things to different people, however, in the context of this paper, ‘law’ shall mean,

The aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action; esp., the body of rules, standards, and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them….

The definition of morality, however, is not as straightforward. Morality means, ‘1. Conformity with recognized rules of correct conduct. 2. The character of being virtuous….3. A system of duties; ethics.’ The term morality can be used ‘descriptively to refer to a code of conduct put forward by a society…a religion…an individual (in relation to) her own behavior, or normatively to refer to a code of conduct that, given specified conditions, would be put forward by all rational persons.’

Descriptive morality has three foundations, tradition (accepting authority and emphasizing loyalty), religion (purity and sanctity), and rational human nature (avoiding and preventing harm). However, it has been said that ‘…in the descriptive sense of “morality,” beyond some concern with avoiding and preventing harm to some others, there need be no common content….’ That is to say, one element (traditional, religion or rational human nature) can exist or be deemed more important than the other. Lord Devlin, in his contribution to the debate over the Wolfeden Report (which, in 1957, recommended legalizing homosexual behavior in the United Kingdom between consenting adults in private), applied a descriptive definition of morality when stating, ‘(o)ne should consider the views of the ordinary person living in that society to determine the content of the morality.…(however,) no society can do without intolerance, indignation and disgust, they are the forces behind the moral law.’ Devlin’s descriptive usage of morality quickly turned subjective; and as H.L.A. Hart (in opposing Lord Devlin) accused, man-made, or as another philosopher, Ronald Dworkin would argue, emotive.

In contrast, normative morality refers to ‘a universal guide that all rational persons would put forward for governing the behavior of all moral agents.’ Avoiding and preventing harm is central to a normative definition of morality, and the similarity among those philosophers who use this definition of morality is the view that ‘morality prohibits actions such as killing, causing pain, deceiving, and breaking promises.’ Hart’s view of morality can broadly be said to be normative; he states that morality is ‘a uniquely true or correct set of principles – not man-made, but…awaiting man’s discovery by the use of his reason….’

To say, then, that ‘the dictates of law and those of morality will “often” coincide’ presupposes a leaning towards proponents of Natural Law who view law and morality as being ‘inextricably linked,’ than those of Legal Positivists, who view law as ‘something distinct from morality.’ Whether one divides morality into public versus private, true/correct set of principles versus man-made, reason-based versus not reason-based, normative versus descriptive, at the end it would seem that the law does in fact dictate some form of morality. Whether it should or should not can depend on how you define morality. As succinctly put by McTeer, ‘(w)hile the modern consensus claims that law and morality are neither strictly dependent on nor equivalent to one another, they must nonetheless interact to achieve positive social ends.…(however) the debate is…(over) the legitimate domain of the law in matters of morality.’

III. PRINCIPLED LIMITS TO THE LAW

Before delving into the debate over the legitimate domain of law in morality, one needs to step back to understand the different proposals being proffered as legitimate limits to the law. Broadly defined, there are three influential proposals for the legitimate or ‘principled’ limits to the law: (1) the Harm Principal, (2) Legal Moralism, and (3) Neutrality. Of these the Harm Principal and Legal Moralism are at logger-heads, and are central to the proposition at hand. The Harm Principal can broadly be summarized to mean that ‘the need to prevent harm or offense to others is always a morally relevant reason in support of proposed state coercion.’ On the other hand, Legal Moralism holds that ‘(i)t can be morally legitimate for the state to prohibit certain types of action that cause neither harm nor offense to anyone, on the ground that such actions constitute or cause evils of other…kinds.’ Legal Moralism usually provides grounding for statutes prohibiting such activities that legislators find especially shocking, such as prostitution. Whether the law imposes a particular code of morality, of course, depends on how one defines morality and harm. Even the Harm Principle, in its application, is ‘a mere convenient abbreviation…(which) includes, among other things, moral judgments and values weightings of a variety of kinds.’ However, I would tend to agree with Feinberg, when he states, the ‘harm and offense principles, duly clarified and qualified, between them exhaust the class of morally relevant reasons for criminal prohibitions.’
In order to analyze the question of whether the law does imposes a particular code of morality, and whether it should (or should not), I look below to the law regarding surrogacy in Singapore in the context of the Harm Principle.

IV. SURROGACY

Surrogacy can most comprehensively be defined as, ‘…The process of carrying and delivering a child for another person….(There are two types of surrogacy:) Gestational surrogacy. A pregnancy in which one woman (the genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the fetus and gives birth to the child. Traditional surrogacy. A pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination, and carries the fetus and gives birth to a child for another person.’

SINGAPORE SURROGACY LAW

In Singapore, surrogacy is currently banned by a directive issued under the ‘Private Hospitals and Medical Clinics Act.’ Section 4.11.2 of the ‘Directives for Private Healthcare Institutions Providing Assisted Reproductive Services’ states: ‘The following activities shall not be carried out in any Assisted Reproductive Center…(ii) Surrogacy (surrogacy is where a woman is artificially impregnated, whether for monetary consideration or not, with the intention that the child is to be the social child of some other person or couple)’ (hereinafter, ‘Directive’). Licensees of private hospitals or medical clinics are obligated to comply with the Directive, a failure of which is an offence and attracts a maximum fine of S$2000 and/or maximum imprisonment of 12 months. In Singapore, in addition to the ban, there are no legislative provisions dealing specifically with the issue of children born through artificial conception; as well as no cases on the issue of surrogacy in common law.

It has proven difficult to gather much information on the reasons behind the ban of surrogacy in Singapore. Therefore, I have looked at the common arguments against surrogacy and analyzed these in conjunction with Singapore’s laws/views on human egg research, prostitution, abortion and domestic help (which bring up similar concerns), and were possible, stated any explicitly stated positions on surrogacy.

COMMON ARGUMENTS AGAINST SURROGACY

Risk to the Surrogate Mother: Arguments against surrogacy in relation to risk to the surrogate mother range from: (i) it confuses the issue of motherhood, (ii) it amounts to ‘womb-leasing,’ which objectifies women, (iii) it exploits surrogates, whereby economically disadvantaged women are used by wealthier people, and (iv) it could cause significant suffering to the surrogate as she is not likely to understand the health risks or emotions associated with the arrangement.
Commissioning Parents: The main argument against surrogacy in relation to the commissioning parents is that it encourages some fertile women to prioritize their careers, or their figures, over having a child at an age when they should have had a child.

Welfare of the Child: Arguments against surrogacy in relation to a child’s welfare range from: (i) the child is being treated like a commodity, (ii) neither the surrogate mother nor the commissioning parent(s) may want the child, especially if the child is disabled, or if the commissioning parents have a divorce or die, (iii) it may cause emotional and psychological problems for the child in later years.

The issues raised above against surrogacy can be broadly grouped into: (i) Parentage, (ii) Exploitation, (iii) Consent, and (iii) Child Welfare.

PARENTAGE

Is the challenge to a woman’s traditional role as a mother a harm substantial enough to justify Singapore’s ban on surrogacy; is the ban preventing otherwise fertile women from prioritizing careers over motherhood?

In Singapore, the term ‘mother’ is in fact not defined under any Singapore Act. Common law and inferred references to ‘mother’ in various Acts imply that, ‘mother’ means ‘birth mother.’ For example, Section 114 of the Evidence Act, states, ‘(t)he fact that a child was born in wedlock, or within 280 days after the dissolution of a marriage is to be taken as conclusive proof that he or she is the legitimate child of “that man, unless it can be shown that the parties had no access to each other at any time when he could have been begotten.”’
The meaning of motherhood is rooted in Singapore’s religious understanding as is evident when looking at the view of surrogacy in Buddhism and Islam. There does appear to be a perceived harm associated with challenging Singapore societies’ understanding of a woman’s role, that is, to be married and be a mother. Ironically, in one of the only published papers regarding surrogacy in Singapore where Heng argues in favor of gestational surrogacy, he cautions the government against, ‘…middle-aged and post-menopausal career women…seek(ing) gestational surrogates…(when they) could have borne children of their own at a younger age had they not deliberately delayed marriage and motherhood’ (Emphasis added). He states further, ‘…allowing…otherwise healthy patients to have easy and ready access to gestational surrogacy might in fact promote a selfish and convenient lifestyle choice that is anathema to the ‘Asian family values’ vigorously promoted by Singapore government policymakers themselves.’ However, even as the law stands today, Singaporean women continue to delay starting their families until later in life. The ban on surrogacy is not causing this, yet, it does appear, that changing the perception of a woman’s role as mother and wife in Singapore may prove a challenge to surrogacy.

EXPLOITATION

There are a few ways surrogacy is argued to be exploitative: (i) paying for a womb objectifies women (womb-leasing), and/or (ii) it is unfair as it is based on an unequal bargaining position where economically disadvantaged women can be abused/induced.

COMMERCIAL OBJECTIFICATION

The Directive bans surrogacy ‘whether for monetary consideration or not.’ However, does ‘womb-leasing,’ or paying for a womb, cause harm because it objectifies women? In comparing Singapore’s view with another ethically debatable topic, the Human Cloning and Other Prohibited Practices Act (Cloning Act), payment of expenses to women providing their eggs for research is, in fact, accepted. In another example, prostitution (which is not only condoned, but sanctioned by the government in Singapore), the payment for services (presumably a commercial rate) appears to be acceptable. I, by no means, wish to make a judgment on the morality of egg donation or prostitution (and neither to be perceived to be equating surrogacy to prostitution), however, there is something to be said for the view of Singapore’s laws in what it deems ‘objectification’ of women.

In its November 2008 report on Donation of Human Eggs for Research (Report), the Bioethical Advisory Committee (BAC) states, ‘…that neither the human body, nor any aspect of the reproductive process, (should become) the subject of commercialization. (The BAC) is sensitive to the great importance attributed to the institution of the family in Singapore society, and reproduction is a key element of this institution.’ Could it be argued, perhaps, that a morality of sorts is being imposed on what ‘types’ of exploitative acts are acceptable? Should it be acceptable to pay for donated eggs and services of a prostitute, but not for services of a surrogate?

UNEQUAL BARGAINING POWER

Will surrogacy disadvantage poorer women in Singapore because the nature of surrogacy is such that it puts poorer women in an unequal bargaining position; will women be induced into accepting arrangements that they would not normally accept?

In Joanne Ramsey’s article, Paying for Reproduction – The Case Against Paid Surrogacy, she states:

…a person is exploited if they are harmed or treated unfairly by another party and if their choice is compromised. It is not a given that persons will be harmed in a surrogacy arrangement. The commissioning couple will receive a much desired child and the surrogate mother…will have the knowledge that she helped them in a way no other could. She may also receive financial compensation for her role.

One only needs to look at the domestic help population in Singapore to determine whether there is an inference of harm associated with poorer women providing a service for money. Singapore has a population of approximately 170,000 domestic helpers. Domestic help is sanctioned and regulated by the Government, whereby, an employer must pay a levy between S$170 to S$265 to the government for every maid employed, and the maids receive approximately S$250 – $800 as her salary. It could be argued that Singapore’s domestic help population is in Singapore by choice because they desire to better their circumstances. There appears to be no perception of harm despite the lure (or inducement) of better pay in Singapore.

As Ramsey correctly states:

Indeed, we, as a society, do not seek to prevent others who, due to their economic or social status, choose to carry out work that involves a degree of risk, from undertaking that risk….Even if surrogates tend to be poor and have fewer options than others in society…it would be inappropriate to limit their choices further: Concern that some people are forced to choose their lives from an unfairly small menu of options is a reason to expand not restrict the range of options from which these people must choose.

I would argue, based on the sanctioned use of domestic help in Singapore, that perhaps surrogates would not be unfairly treated based on the perception of an unequal bargaining position.

CONSENT

An additional argument against surrogacy is that surrogates cannot provide fully informed consent. The arguments are: (i) she cannot appreciate the true risk that a pregnancy can have on her health or emotions, and (ii) any consent obtained from a surrogate may be tainted by the lure of money.

In Singapore, the BAC Report states, ‘(i)t is ethically acceptable for informed and consenting healthy women not undergoing fertility treatment to donate eggs for research. The principle of respect for individuals (and their autonomy in decision-making) supports this, and it is already the legal position in Singapore.’ (Emphasis added) In addition to allowing a ‘healthy women’ to donate eggs for research, in Singapore, women are also considered able enough to consent to having an abortion up to 24 weeks. Presumably then, a similarly informed and consenting surrogate would be acceptable in Singapore?

To the argument that a surrogate would not appreciate the health risks associated with pregnancy; do not all pregnancies have a level of health risk (not just surrogacy arrangements)? If a ‘healthy woman’ is permitted to donate eggs for research, why not a gestational carrier donate her womb?

With regards to the emotional ramifications of surrogacy, many of the reported problems have occurred with Traditional Surrogacy rather than Gestational. Despite this, ‘a study by the Family and Child Psychology Research Centre…(did) concluded that surrogate mothers rarely had difficulty relinquishing rights to a surrogate child….’

On the issue of inducement, should a maid then not be allowed to work in Singapore because her consent is suspect…because the lure of money wrongly made her agree to leave her children in her home country for years at a time? ‘If financial standing is relevant to the quality of consent, this would not argue conclusively against paid surrogacy; merely it would require that all surrogates were financially secure.’ Thus, it is feasible that valid consent, may be obtained from a surrogate, despite the involvement of any money.

WELFARE OF THE CHILD

In Singapore, the main concerns are, (i) surrogacy commodifies children, (ii) disabled children born through surrogacy will be abandoned, and (iii) children will have emotional difficulty in life.

COMMODIFICATION

Since there are no cases on point in Singapore, I need to rely on conjecture to understand the reality of any such harm. Even the Brazier Report in the U.K., in their analysis of these concerns, ‘conceded that the harm to children…was purely speculative….’

As Ramsey argues, ‘(f)or a child to be commodified, it would be necessary that it be seen or treated as a commodity; a product. It is entirely plausible that neither intending parents nor surrogates in fact view children in that way.’ Additionally, it is argued that (any) payment is not for the child, but rather for the services provided by the surrogate. As mentioned earlier, although the Cloning Act espouses the ethical principal that the human body is not be treated as a disposable economic asset, in practice, Singapore does accept payment for ‘use’ of some services in relation to the human body (example, research of human eggs and prostitution). Therefore, it is conceivable that surrogate children may not be treated as a commodity in Singapore.

ABANDONED CHILDREN DUE TO DISABILITY AND EMOTIONAL WELLBEING

With regards to welfare argument that disabled children born through surrogacy will be abandoned, the questions to ask are whether: (i) is there a problem of disabled children born in a conventional manner being abandoned, and (ii) would this increase in surrogacy arrangements?

From a cursory review of Singapore’s organizations for disabled children, there does not appear to be a disproportionately larger number of disabled children being abandoned versus not disabled. Also, there is no empirical date to prove that parties involved in surrogacy arrangements are any more or less averse to dealing with children with disabilities. More importantly, one needs to ask oneself, as Harris does, ‘(i)s this a disadvantage so great that we as a society should not connive at producing children thus disadvantaged?’ That is, one needs to weigh the substantial risk of any perceived harm against the ‘benefit of life itself.’ The Non-Identity principle espoused by Derek Parfit is most fitting is the defense to the concern here, that unless the life one has is so bad that it would have been better not to have been born at all, there is no argument that can justify saying the person should not be allowed to exist.

As to the concern regarding the emotional well-being of a child born through surrogacy, research indicates, ‘that children born to surrogates show no differences in emotional and psychological well-being when compared to other children.’

V. CONCLUSION

LIBERTY AND CHOICE VERSUS BAN

Liberty is one of Singapore’s fundamental constitutional principles. However, can liberty really exist when one is banned from a certain activity? According to Feinberg, ‘where a coercive law stops, there liberty begins.’ Feinberg further extrapolates, that ‘we can think of every possible act as so related to a penal code that it must either be (i) required (a duty), (2) merely permitted (one we are “at liberty” to do or forbear doing), or (3) prohibited (a crime)….The citizens zone of liberty, therefore, corresponds to the second class, since (1) and (3) are alike in directing coercive threats at him.’ If surrogacy were ‘merely permitted,’ it would allow infertile individuals the liberty of choice.

It is not necessary that surrogacy is a choice that everyone would make; as Gavaghan correctly states, ‘a truly pro-choice position…must recognize that choices not to use these technologies at all are just as worthy of respect as choices to use them.’ Gavaghan further states:

Reproductive liberty is so central to one’s life plans, that it ‘should enjoy presumptive primacy when conflicts about its exercise arise because control over whether one produces or not is central to personal identity, to dignity, and to the meaning of one’s life….those who would limit procreative choice have the burden of showing that the reproductive actions at issue would create such substantial harm that they could justifiably be limited.

MOST VOICED CONCERNS IN SINGAPORE AND SUGGESTED SOLUTIONS

Using an intent-based analysis for defining ‘mother,’ rather than a gestational mother, may assist Singapore in its declining birth rate and alleviate concerns about ‘who the parent is’ in surrogacy arrangements. However, challenging a woman’s traditional role in Singapore appears to be too morally charged a subject (based on religious beliefs) to be modifiable. Even if Singapore were to remove the ban, it is doubtful that ‘mother’ would be defined as anyone other than the gestational mother, which would feed into other perceived problems with surrogacy.

The definition of mother, of course, cannot be the sole reason for banning surrogacy in Singapore. Exploitation and valid consent of the surrogate are also concerns. I would argue, however, based on Singapore’s current position on human egg research, prostitution, and domestic help, that the perceived harm is not substantial enough to justify the ban. Banning surrogacy has not had its intended effect in Singapore, in fact, it has resulting simply in childless Singaporeans going abroad to find surrogates. Concerns over exploitation and the lack of valid consent can be alleviated in Singapore by following (at the least) an expenses-based model of payment, and providing adequate information to gain informed consent.

Additionally, concerns over the child’s welfare could also be a reason for the ban. I would argue, based on Heng’s reference to Singapore’s ‘Asian family values,’ it is conceivable that Singaporean mothers who take care of a child after birth could be as loving and nurturing as the mother who gave birth; that a child would not be treated as a commodity. Additionally, although not an apparent problem, the specific concern over abandonment of disabled surrogate children can be alleviated by using currently under-utilized medical techniques, such as Pre-implantation Genetic Diagnosis (PGD). The fear that the child will be left parentless due to divorce or death can be alleviated by allowing the enforceability of surrogacy contracts.

HARM-BASED OR NOT

If one concludes that the ban on surrogacy in Singapore does not satisfy the Harm Principle, Feinberg would argue that the legislators have based the law on some other principal. Whether that other principal is that of Legal Moralism is the question.

Based on the Singapore government’s progressive approach to many ethically debatable topics, it could be argued that the ban on surrogacy is not necessarily based on Legal Moralism, but perhaps due to the potential harm to society based on the lack of medical and legal infrastructure to support surrogacy. This is conceivable if one believes the BAC when it states: ‘(in) a multi-racial, multi-religious and pluralistic society, Singapore’s bioethical position should not be characterized by a single norm, perspective or persuasion. Rather, its position should reflect the diversity of opinions directed at promoting the common good of all….the best way forward…(is) one that allow(s) the pursuit of social benefit but in a manner that either avoided or ameliorated potential harm.’
However, if you accept the notion that an act is banned because of society’s perception that the act is in fact wrong, or perhaps even immoral, then an argument can be made that Legal Moralism may be at play. In fact, the Law Minister K. Shanmugam, in addressing some 200 international lawyers is Singapore, recently stated, ‘(h)ow that balance (between individual and societal rights) is struck depends on the philosophy of the society….We do tend to weigh the balance more towards the society compared with you.’

Thus, I would conclude, a code of morality – in so-far as it is based on the Harm Principle – should and hopefully does get imposed on the law. However, Singapore’s ban on surrogacy appears to impose a morality akin to Legal Moralism, thus, I would argue, should not be imposed on the law.

Harpreet Bedi, J.D.

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