Contra Arland Nichols on Surrogate Motherhood

Over at Crisis magazine, Arland K. Nichols offers an opinion on the morality of surrogate motherhood: Why Surrogacy Violates Human Dignity. But there are several serious theological problems with his article.

First, Nichols does not define surrogacy himself, and he ignores the specific definition of surrogacy in Donum Vitae, the magisterial document on the subject. Donum Vitae states:

* By “surrogate mother” the Instruction means:
a) the woman who carries in pregnancy an embryo implanted in her uterus and who is genetically a stranger to the embryo because it has been obtained through the union of the gametes of “donors”. She carries the pregnancy with a pledge to surrender the baby once it is born to the party who commissioned or made the agreement for the pregnancy.
b) the woman who carries in pregnancy an embryo to whose procreation she has contributed the donation of her own ovum, fertilized through insemination with the sperm of a man other than her husband. She carries the pregnancy with a pledge to surrender the child once it is born to the party who commissioned or made the agreement for the pregnancy.

The above definition is narrow. The first case (a) considers a woman who carries an implanted embryo for someone else, agreeing to give up the child after birth; this includes but is not limited to surrogacy for hire. The second case (b) considers heterologous fertilization, where artificial procreation uses the gametes from a person outside of the marriage.

Other cases are not considered by this document, such as a married couple who attempt to rescue a frozen embryo by implantation in the wife’s womb, gestation, and birth. This type of frozen embryo adoption is not an agreement to birth and give up a child for another party. And the couple who adopt the embryo are not engaging in heterologous fertilization. So this act is outside of the cases specifically condemned as morally illicit by Donum Vitae.

In my book, The Catechism of Catholic Ethics, I estimate that there are presently over one million frozen embryos in the world. These embryos are in a state of literal slavery, since they are treated as property, not persons, and are deprived of all fundamental human rights. Many of these frozen embryos have been abandoned; their parents cannot be located, or have determined that they no longer need these embryos. The yearly storage fees for these embryos are high, representing an economic pressure on the parents to sign a paper having them destroyed. Some of the frozen embryos are used for horrific “quality assurance” purposes: they are thawed, tested for viability, and then destroyed. If these frozen embryos are not implanted, they will die in that frozen state, with no opportunity for gestation, birth, childhood, and a normal human lifespan.

The Church teaches that life begins at conception, so a frozen embryo is a human person who will surely die if not given life by means of implantation. In many cases, the frozen embryo cannot be implanted in the womb of the mother — either she is too old, or she is deceased, or the clinic keeping the embryo has lost contact with the parents. So implantation in a surrogate mother would be the only way to save the life.

Nichols ignores the plight of these frozen embryos, and condemns all surrogate motherhood unequivocally. Does he therefore hold that surrogate motherhood is intrinsically evil and always immoral? It would seem so, since he states:

“While the children who enter the world through surrogacy are precious, and those who choose surrogacy undoubtedly act with the best of intentions, often in the face of great suffering, it does not change the objective truth that such an act is against human nature and divine law and thus cannot be a good act nor lead to the flourishing of those who choose it.”

Roman Catholic teaching on morality is based on the three fonts of morality: intention, moral object, circumstances. This teaching is found in the CCC, the Compendium of the Catechism, and the USCCB Catechism, and is applied in numerous magisterial documents. Yet in writing an article on the morality of surrogacy, Nichols fails to mention the three fonts of morality, does not use the term intrinsically evil, does not consider the moral object of surrogacy, and still somehow condemns surrogate motherhood as if it were always immoral.

Notice in the above quote, that he justifies the intentions of some persons who choose surrogacy. But in the case that he ignores, the adoption of frozen embryos (“snowflake children”), the intention is all the more praiseworthy. For the intention is to respect and defend human life. Nichols acknowledges that the circumstances of surrogacy may include “great suffering”, and he does not condemn surrogacy on the basis of particular circumstances in particular cases. Instead he condemns all surrogacy as if it were “against human nature and divine law.” So his moral evaluation of surrogacy implies that it is intrinsically evil.

However, the Magisterium has NEVER taught that surrogate motherhood is intrinsically evil. And Nichols presents no quotes from magisterial documents teaching that surrogacy is intrinsically evil, or always immoral, or that it has an evil moral object.

Janet Smith: “While Dignitas Personae (The Dignity of the Person) speaks against embryo adoption, at the press conference at which Dignitas Personae was promulgated, Archbishop Rino Fisichella announced that embryo adoption was still an open question, as did a question-and-answer sheet posted on the website.” (Adopting Embryos: Why Not?)

As an open question, the Catholic faithful are free to believe that embryo adoption may be moral, in some circumstances and with good intention. Only intrinsically evil acts are always immoral regardless of intention or circumstances. The USCCB notes that the adoption of frozen embryos has NOT been definitively condemned by the Magisterium.

“Proposals for ‘adoption’ of abandoned or unwanted frozen embryos are also found to pose problems, because the Church opposes use of the gametes or bodies of others who are outside the marital covenant for reproduction. The document raises cautions or problems about these new issues but does not formally make a definitive judgment against them.” (USCCB Q and A on Dignitas Personae, Q. 5, p. 3-4)

Nichols presents his opinion against all surrogacy as if it were definitive magisterial teaching. Reading Nichols’ article, a Catholic might mistakenly think that the Church has condemned all surrogate motherhood, regardless of intention or circumstances. But that conclusion is not warranted.

In my opinion, using surrogacy to save the lives of frozen embryos is not intrinsically evil, and can be moral in some cases. Applying the three fonts of morality:

1. intention: The intention is to save the life of an innocent and very young human person.

2. moral object: The act itself is a medical procedure inherently directed at the moral object of saving the life of an innocent person. The implantation of a frozen embryo is not intrinsically evil. And the act of the adopting couple does not include the sin of artificial procreation.

3. circumstances: If these frozen embryos are not implanted, then these young innocents will die. They cannot be maintained in a frozen state indefinitely. After a certain length of time, the embryos are no longer viable. There is no other way to save their lives than by embryo adoption.

Now the married couple adopting the embryo have not engaged in artificial procreation to create an embryo — neither homologous or heterologous — nor are they carrying the child for another party. So their act does not fall under the condemnation of surrogacy, narrowly and clearly defined in Donum Vitae. One cannot quote that document as a way to condemn frozen embryo adoption, since the document limits its condemnation of surrogacy to that narrow definition.

So I conclude that surrogate motherhood, in the case of frozen embryo adoption, can be moral; it is not intrinsically evil. See my previous posts:

Surrogate Motherhood Is Not Intrinsically Evil
Embryo Adoption: a moral option for infertile Catholic spouses

In his article, Arland K. Nichols fails to apply the three fonts of morality to surrogate motherhood. What is the evil moral object of surrogacy that would make even frozen embryo adoption always immoral? He does not answer the question. Has the Magisterium condemned surrogacy as intrinsically evil and always gravely immoral? The USCCB says “No”. But Nichols speaks as if it has. Caveat lector (“let the reader beware”).

Ronald L. Conte Jr.
Roman Catholic theologian and
translator of the Catholic Public Domain Version of the Bible.

Please take a look at this list of my books and booklets, and see if any topic interests you.

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