Reproductive Medicine

Children Not Allowed – Sperm Donors and Surrogate Mothers

The new possibilities offered by reproductive medicine give rise to thorny ethical and legal questions: Should people be helped to have children? If so, under what conditions?

Thomas Gull

verzweifeltes Paas
verzweifeltes Paas
At some point it is too late to have children, even if it is biologically possible. But when exactly that is, each woman or couple has to decide for themselves. (Image: Benjamin Güdel)


Nowadays, unwanted childlessness can often be overcome with various types of reproductive medicine. The list of options is long: in-vitro fertilization, sperm donation, egg donation or surrogacy. Some of these options are allowed in Switzerland while others are not, which means would-be parents may end up going abroad to fulfill their desire for children.

But ought we be allowed to do everything possible to have children? When ethicists and lawyers in our liberal societies attempt to answer this question, their starting point and the pole around which all the issues revolve is the concept of “reproductive autonomy” – the right of each and every individual to decide about their own reproduction. For legal scholar Andrea Büchler, this means: “Nobody can be forced to reproduce or be prevented from reproducing. The realization of one’s desire for children is part of the personal freedoms enshrined in law.”

But from this standpoint follows the question: Should everything be allowed and everything be done to make the desire for children a reality? “In a liberal society at least, this question is the wrong one,” says philosopher Barbara Bleisch. “The question should be whether we have the right to prevent people from fulfilling this wish.” Well, do we? In some cases, certainly. “From a legal perspective,” stresses Andrea Büchler, “restrictions to reproductive autonomy must be justified. Such justification would be that the restriction is necessary for the protection of the basic rights of third parties or of public interests.” Barbara Bleisch specifies that “a restriction of reproductive freedom would be justified, for example, if the use of a technology would violate the welfare of the child or the dignity of those affected or would have massive disadvantages for society.”

At some point it is too late

So what are some of the possible objections that would justify a curtailment of reproductive autonomy? First: The welfare of the child. The question here is whether older people should still have children. In the past, this issue mainly affected men. But the technique of social freezing means women can have their eggs frozen when they are still young, and at a later date have them fertilized and implanted. This makes it possible to still become a mother even after the menopause.

There are two main concerns regarding older mothers: Are they still healthy and fit enough to survive a pregnancy and give birth to a healthy child? And do they still have enough time to see the child through to adulthood? According to ethicist Tobias Eichinger, it is difficult to set an age bar: “If the mother is 50, it’s probably not a problem, especially as many women at this age are in better shape than in previous generations.” But for a 70-year-old, things look different. In addition to the health risks, it’s also a question of how we live our lives, says Barbara Bleisch: “Always wanting to keep all the options open is not a smart attitude to life.” At some point it is too late to have your own children, even if it were still biologically possible. But each woman or couple has to decide for themselves when that time is.

Second: The dignity of all those involved. This issue relates mainly to surrogacy, as well as to egg donation. Neither is currently allowed in Switzerland, and relatively clear positions on both questions crystallize when talking to UZH scientists. They give a thumbs up for egg donation, but are more circumspect when it comes to surrogacy.

The general feeling is that egg donation should be permitted. There are two arguments in its favor. For one thing, sperm donation is allowed, and therefore in terms of equal treatment of men and women egg donation should also be allowed. For another, prohibiting egg donation limits reproductive autonomy. “There are no good reasons for this restriction,” stresses legal scholar Andrea Büchler. However, she adds, it is important to protect potential donors from risks, because unlike with sperm donation by men which is quick and painless, women who wish to donate eggs have to undergo hormonal stimulation first and then have the eggs removed in an operation under general anesthetic. It is thus vital that women are properly informed and give their consent freely with full knowledge of the risks, says Büchler. “And bodily substances cannot have a price tag,” she stresses. For sperm donation in Switzerland, donors receive only expenses, not payment. Büchler thinks the same should apply to egg donation if it is legalized. This would prevent women from feeling pressured to donate eggs for financial reasons.

Controversial surrogacy

Opponents of surrogacy put forward various arguments: Surrogate mothers are used and exploited; surrogacy is bad for the welfare of the child and is like child trafficking. Some claim, for example, that pregnancy and birth establish a relationship that cannot be broken without harming the child and the birth mother. “There is no empirical evidence for this,” says Andrea Büchler, “but surrogacy is certainly a complex matter. The surrogate mother’s inner relationship to the child must be acknowledged and appreciated, and ideally she would remain present in the child’s life.”

 Nowadays, various forms of surrogacy take place in different parts of the world. In some countries, the regulations treat it as a kind of donation to a couple in need, in others it is a service that has to compete in a market. Büchler is of the opinion that there are forms of surrogacy that are quite legitimate. The conditions under which surrogacy takes place are decisive in determining whether the surrogate mother is really acting in a self-determined manner and whether her physical integrity is maintained.

If surrogacy remains illegal in Switzerland, male couples who want to become parents are disadvantaged. This unequal treatment is the most important argument against the ban. At present, such couples are forced to go abroad, for example to the USA, to have a child through a surrogate mother. For children born in this way, in Switzerland the sperm donor is recognized as the father and his partner has to adopt the child. “If relationships of homosexual couples are to be treated the same as married couples,” says theologian Michael Coors, “then they should also be allowed to become parents.” Coors emphasizes, however, that he personally is against the legalization of surrogacy. “Surrogacy for financial reasons should be prohibited. And I doubt that it is realistic without a financial incentive,” he says. The theologian could imagine that there might be some “purely altruistic” surrogacy scenarios, but says he’s skeptical about whether it would actually work in practice. If surrogacy were to be allowed under certain conditions, it remains to be seen how lawmakers would navigate the various requirements – equality and the right to a family versus the question of payment for surrogacy, for example.

The third argument for restricting reproductive autonomy is if the reproductive medicine in question could cause damage to society. An example of this are prenatal examinations. These are used to determine whether the fetus or embryo has any (hereditary) diseases or abnormalities, but the same methods can also be used to determine other characteristics such as the sex of the fetus. This could have negative consequences for society, for example when many parents would rather have a baby boy for social reasons, as is sometimes the case in India, and prenatal examinations and resulting abortions lead to the proportion of women and men in the country getting out of balance.

Selection of embryos

Important ethical and societal questions also arise in relation to the selection of embryos made possible by preimplantation genetic diagnosis (PGD). Here the question is not just whether it might one day be possible to create a child to order, as it were, but also what happens to embryos that have the potential to develop genetic disorders. Should these embryos be filtered out? “Or,” asks theologian Michael Coors, “should parents decide to go ahead with the implantation of an embryo even if the child may later develop a particular disease or disability?” How serious would a potential disorder have to be for you to decide against implanting the embryo?

The boundaries in such cases are fluid, says Coors. One important factor is the resources of the parents: Do they have the motivation and does society provide them with the necessary support to raise a disabled child? “We are still a long way from this in many areas,” says the theologian, “even though many things have improved.” The other problem is the stigmatization of disability, which increases the pressure on parents not to bring a disabled child into the world. This development has been criticized by disabled persons’ groups and associations. They point out that having a disability does not necessarily exclude you from having a good life. For example, surveys of people with Down syndrome (trisomy 21) show that the vast majority of them are happy and have high self-worth.

Coors points out that most disabilities do not arise at the embryo stage, but during pregnancy and birth or later through an accident. Therefore, according to Coors, we should not talk about the embryo, but about the later life of a child, which takes place in the family. “It is difficult to formulate clear rules on deciding for or against a child due to PGD findings,” says Michael Coors. “Ethical counseling for parents would be useful here, to support them in decision-making.”

Children are not just CO2 generators

While ethicists and legal scholars deal with the opportunities and limits of reproductive medicine, a radically different view of childbearing is held by anti-natalists, people who are ethically opposed to bringing children into the world. Moral anti-natalists such as the philosopher Arthur Schopenhauer argue against having children on the grounds that human life is primarily suffering and that you should therefore not bring children into the world, says philosopher Barbara Bleisch. Today, however, there is a new breed of anti-natalists: Those who believe that it is irresponsible from an ecological point of view to bring children into the world because of their massive carbon footprints. It is ominously estimated that a child releases 58.6 tonnes of CO2 in the course of a lifetime.

Barbara Bleisch rejects this line of reasoning. For her, a ban on reproduction or a moral criticism of having children is too great an encroachment on our freedom: “It’s reasonable to expect ourselves and others to limit consumption, for example by flying less,” argues the philosopher, “but having children is an existential life decision which we should not criticize in ecological terms.” But above all, she believes, it is not acceptable that children are primarily considered as CO2 generators. “Children thus become a negative factor in our ecological balance sheet. This does not do them justice, because children are much more: They enrich our lives and are the future of our society.” However, the anti-natalists are unlikely to care about this, because according to Michael Coors, “they want to abolish humanity because it is destroying the planet.”

Covered under health insurance in Germany

Reproductive medicine in Switzerland is in any case a luxury that many cannot afford, points out ethicist Tobias Eichinger. Should health insurances companies pay the costs, or at least part of them? According to legal scholar Andrea Büchler “if reproductive autonomy is indeed a right and not just a privilege for the wealthy, the costs must also be taken into account and fair access to reproductive medical services must be made possible.”

But who pays what? In Switzerland for example, the costs of in-vitro fertilization or social egg freezing are generally not covered, while the costs of a non-invasive prenatal examination are. In Germany, the health insurance company pays half of the costs for couples who are considered infertile because they are still childless after a year of unprotected sexual intercourse. “However, the parents must be married and there are certain age limits,” says ethicist Tobias Eichinger – the woman may be no older than 40, the man no older than 50.

Is unwanted childlessness a disease? “It would be difficult to make this argument,” Eichinger says, “because it pathologizes infertility.” For Eichinger, it would be more suitable to regard it as a functional disorder. “We have a duty to remedy such disorders if possible and enable people to have children.” At the same time, stresses Eichinger, reproductive medicine should not be a service you can pay for to buy a certain lifestyle.

Thomas Gull, Editor UZH Magazin; English translation by Caitlin Stephens, UZH Communications

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