The Ethics of Surrogacy.

William Houghton
Oct 5, 2019 · 14 min read

As surrogacy has become more popularized in the media, different groups have battled over ethical concerns about the practice. The United Nations’ Universal Declaration of Human Rights (article 16) says, “Men and women… have the right to marry and found a family.” Article 27 goes on to say, “Everyone has the right … to share in scientific advances and its benefits.” If the UN speaks for the world community, then it seems that the consensus is that surrogacy is an inherent human right.

Surrogacy Baby
Surrogacy Baby

Voicing the opposing arguments are feminists and moral conservatives, who argue that illiterate and impoverished women are taken advantage of and convinced to assume the grave risks of pregnancy for large sums of money without understanding the dangers.

As the founder of the Sensible Surrogacy consultancy and author of the Sensible Surrogacy Guide, I sat down with a freelance journalist to discuss the ethics of surrogacy. Here is the text of that interview.

Perhaps the most pervasive and compelling argument against surrogacy is that it exploits women. Feminists argue the surrogacy is akin to prostitution, and that a surrogate pregnancy is intrinsically harmful and forced on poor women because of their economic disadvantages. What is your response to that argument?

I understand the argument…. And I am the first to acknowledge that poor women in developing countries are at risk of exploitation. But I disagree that surrogacy is exploitive.

The feminist argument is not an argument for or against surrogacy. In her 2013 book, Kajsa Ekman argues against surrogacy based on market forces and social conditions. I agree to some extent… in my opinion the argument is about social policy towards employment opportunities and income distribution.

The argument that surrogate mothers are exploited for providing their service for money is really based a social prejudice. If you dissect the argument you find that the underlying premise is that unskilled workers have less value than the educated, and that so-called “menial” work is without dignity. I totally reject that bias.

How is the suspicion of exploitation a form of prejudice?

A woman that works, or performs a service that requires training and skill, that woman is hardly ever described as being exploited. But a service that requires no skill, maybe is just a form of physical labor, is very often seen as being exploitive, even though the both services are needed equally by society and both provide support for the woman and her family.

Patricia Fronek authored a recent report on the ethics of selling international surrogacy services. In it she cites a practice in India of coercion by brokers, in-laws, and husbands to essentially force women to become egg donors and surrogates.

I’m familiar with the report, and I think it has some valuable insights.

To be clear, there are definitely horrendous practices taking place in some countries where agents are chasing a quick buck by finding the cheapest and easiest surrogates they can find.

Unfortunately it’s also a practice in some patriarchal communities that a husband may offer his wife as a surrogate so that he can reap the financial benefits.

Nobody should defend those practices — I certainly do not. But I do defend the right of an informed and capable woman to become a surrogate for a fair compensation.

And the argument that informed consent is not possible in surrogacy cases?

I don’t agree with that point. While it’s true that to understand a medical procedure requires a certain level of education, surrogate mothers have all had their own successful pregnancies, so they definitely are familiar with the bulk of what’s being asked.

To the extent that complications may arise during pregnancy, the surrogate should already be aware of most of pregnancy-related risks as she has gone through the process when conceiving her own family.

In terms of ancillary procedures like PGD and gender selection, those don’t effect the surrogate at all — they take place during embryo fertilization before the surrogate has even been identified.

That said, Sensible Surrogacy has long required independent legal representation for all surrogacy agreements. Five years ago I insisted that surrogate recruiters we work with arrange for a second, independent legal counsel for all the women who join the surrogacy program. That lawyer’s job is to explain everything in the surrogate’s native language, in a way that she can reasonably understand.

I also completely reject the ethical argument that surrogate mothers don’t receive their fair compensation, or that their compensation is only short-term.

If a surrogate mother is not paid what she is promised, that is definitely an ethical breach — but it’s not inherent to the surrogacy procedure. That disreputable agents are bold enough to cheat their carriers in that way is a sign that they’ve been emboldened by a lack of oversight.

The call to ban surrogacy services because of the existence of disreputable agents is counter-intuitive. We all know that banning the service only creates more disreputable agents, obstructs women from coming forward to seek resolution, and lets the local government wash their hands of any responsibility for the well-being of these women.

Since you’ve brought up the issue of money, how do you respond to arguments that surrogacy makes children into commodities or property in commercial transactions?

Honestly, I don’t get that argument. Couples who struggle with infertility regularly seek different ways to have children, and none of them are without a financial transaction.

I don’t know any assisted reproduction treatment that doesn’t require the parents to pay (often a lot) of money to a service provider. Does that make children born through IUI or ART programs commodities?

I think this argument comes from the bias that I mentioned earlier. Women who receive payment for an unskilled service are often seen as victims. Children from these services are dubbed commodities.

Those labels are not conferred by the parents or the surrogates, but by the detractors themselves. They define surrogacy children as commodities, and then they argue that the term they created warrants an ethical response. The argument that surrogate mothers are exploited for providing their service for money is really based on a sort-of economic bias.

I hear someone say “Oh this poor woman needs to be a surrogate to support her family… that’s exploitive.” The statement is prejudicial on its face. It starts from an assumption that being a surrogate mother is not a reputable service.

You wouldn’t say “That poor woman is forced to be a midwife” or “forced to be a nanny.”

Why are we so quick to label the surrogate mother as a victim? Where does that assumption come from? Why are some services considered reputable and others are not? I think there’s a general prejudice that unskilled work is inherently less reputable.

There are people that look down their noses at what is called “menial” labor. For them, physical, unskilled labor is undesirable and degrading. So it follows that those who perform unskilled services should be pitied and labeled ‘exploited’.

We see this attitude in many fields where non-skilled work is required. Agriculture relies on non-skilled workers to pick produce. Unskilled janitorial workers are often seen to be exploited. The uneducated working in factories are often said to be exploited.

But there is nothing intrinsically evil about harvesting food, cleaning houses, or working on an assembly line.

Those are all jobs that have a clear history of exploitation, low wages and forced labor. Are there other examples?

Very true. Those jobs can be exploitive if they don’t pay a living wage, but not because of the actual tasks being performed. As I see it, those who argue that the jobs are inherently exploitive are voicing a prejudice against the uneducated. They believe any work that doesn’t require “skill” (meaning time and money for training) is inherently degrading and therefore exploitive.

Here’s an example I like to cite… A seamstress who sells clothes made by hand is not seen as exploited. But a seamstress in a clothing factory working a sewing machine is always assumed to be exploited. What is the difference between the two?

Skill, you would argue?

Exactly. People from a society with high levels of education assume that work that requires training is worthy of payment, but work that requires no training has less inherent value.

Therefore, the argument arises that women who provide unskilled work, are necessarily exploited even if they are well paid.

I get the theoretical argument, but do you think that can be applied to a real world situation?

The tangible, real-world fact is this… Surrogates provide a tangible service that requires great effort. Many women enjoy the experience of being pregnant, and the service certainly adds value to society, as well as an altruistic component.

What’s more, surrogate mothers receive significant compensation. Surrogates in Western countries typically have alternative options for earning a living, so to be a surrogate is a voluntary choice. It would be foolish to call such a person exploited since they make the choice of their own free will (and are thus able to walk away from that situation), and are well compensated for that decision.

That’s true in the United States. But what about surrogates in countries like Cambodia or India?

We at Sensible Surrogacy did a quick study with cost of living comparisons and surrogate compensation worldwide. A surrogate mother in India or Ukraine received the equivalent of about $45,000 USD when adjusted for the purchase power of their money. That’s not a bad compensation for a service that is done largely on a part-time basis.

There are many countries where available employment is scarce and the population is large. These countries would consider their unskilled human workforce to be a primary natural resource of that society.

Consider India… this country has long been a hub of international surrogacy, and often is an example of poor women being exploited. But much of the Indian economy is driven by the abundance of the “Human Resources” of the country. It’s no coincidence that India became a hub of surrogacy services given a population over 1 billion.

The economy of India created the environment where industries that require large number of unskilled workers can thrive. Surrogacy is one of those industries. And surrogates arise to meet the needs of the economy. In this way they are like call-center operators, textile workers, or other common jobs in India that require large numbers of people with little training.

Let’s go back to the example we used previously… Consider the difference between two women in India. One makes embroidered, made-to-measure dresses from hand. The other runs a sewing machine in a garment factory.

One woman we immediately would assume is exploited, the other we would assume is NOT exploited. The end product of their work is generally the same. So we should ask what is the difference — what makes us think the sewing machine operator is exploited?

She makes less money?

Certainly, money is one factor in exploitation — and wage disparity is a heinous social reality. All workers should earn a living wage commensurate with the work they do.

But I don’t think money is the primary difference in this case. If the first woman sold her dresses for $5, but it takes her 10 days to make, then she makes the same as the woman who earns $.50/day in the factory. We still would not say she is exploited.

I get your point. So what is the difference in your view?

There are two other differences that strike me.

First, the seamstress is assumed not to be exploited because she has training and a unique skill — thus we (as wealthy educated westerners) attribute more value to her work.

Second, the seamstress has options. She can decide NOT to make the dress, and to go work in the factory instead.

So… by examining this case we can say that exploitation is a factor of unique skill, freedom of choice and fair compensation.

Now I must include an example of actual exploitation, because they do happen — and too often. When a person works in a job that requires no unique skill, has no freedom of choice, and has limited wage potential, then we would rightly say that person is exploited. We should not deny the reality of that, and it’s our moral obligation to fix that injustice.

But here’s the thing… all three of those criteria have nothing to do with the act of surrogacy or being a surrogate mother. There is nothing intrinsically exploitive about what a surrogate does.

The appearance of exploitation comes from the fact that surrogates seem to have no specific skill and often have few alternative job opportunities. Although we have to admit that she is often paid a hefty amount of money for her service.

Taking this into account, a surrogate who is working for someone else because she has no choice would be exploited. But not intrinsically.

Yes…. but exploitation can easily be ended or avoided if there were greater job opportunities for these women. Or if there were requirements placed on surrogates that made their work more ‘skilled’.

For example, if a surrogate needed to pass an exam or earn a license, we would be less apt to call her exploited. Then what I would say is that she is exploited only in so far as she is forced to be a surrogate. And this coercion comes indirectly from the economic policies of that society.

She is also exploited only in so far as surrogacy itself requires no skill or training. But this is also a result of public policy and can easily be changed if there were political will.

Isn’t this what you just denied with the earlier arguments?

I don’t think so. My point is there is nothing about being a surrogate itself that is exploitive. Exploitation only comes from the public policies that create the environment in which poor women are left with no education and little job choice.

The surrogate is only seen to be exploited because the work she does requires no skill or training. But if the government regulated surrogates — that they needed to have certain skills or qualifications — they would be less likely to be seen as exploited.

My argument is that surrogacy is not exploitive in itself. When exploitation takes place (and it does — across the board) it happens because government policies create an exploitive environment. Because the government sets the conditions under which surrogates must work.

And the solution is not to prohibit surrogacy, but to change public policy so that surrogacy is less prone to exploitation.

I don’t believe exploitation comes from the work that you do. Every honest job has dignity and purpose. But exploitation comes from how your work is valued and supported by society and government. A surrogate could be considered either an angel of mercy or a denigrated slave for doing the exact same work for the exact same pay.

What about the argument that women are objectified when they become surrogates.

That’s simply not true. Women may be objectified by others who see their effort as having no value, but they are revered by the couples who they help to conceive their family.

“Objectify” is a judgement passed by others… and we’ve seen that privileged individuals often pass this judgement as a prejudice against the poor and unskilled.

There is nothing about assisting a couple to have a baby that inherently turns women into objects. The surrogate is more than just a uterus… she is an amazing person who is doing difficult valuable work at personal risk for another couple. Those who deny this are only voicing their own prejudice.

And the argument that pregnancy is an intrinsically dangerous and undesirable condition, and Surrogates are forced to do it because of economic difficulties.

First, this is not always true… there are many women who love being pregnant and see the act of creating life to be the most fulfilling thing they do in their lives.

But mostly, even if we assume this argument is true, it has no relevance. Working in a car factory is not a “undesirable condition,” but people still build cars to escape from economic difficulties. It doesn’t mean that we should ban cars.

Most people in the world work solely to satisfy their financial needs, not out of joy or a deep sense of personal fulfillment.

And the Hand Maidens Tale argument, that women are made into a class of “Baby Makers”?

That is untrue on many levels. First, the vision of a surrogate as a “baby maker” is a judgment passed (unfairly) by others upon the surrogate. As I’ve noted, this objectification is a result of prejudice of those who see unskilled work as having less value, and unskilled workers as being deserving of pity rather than respect.

Not all workers identify 100% with the jobs they perform. A gardener may proudly say “I am a gardener”, but he would likely also say that he is a father, or a Democrat, or a soccer enthusiast, etc… Why is it that we assume that women who take on the role of a surrogate have less sense of identity than any of the rest of us?

A woman may be a surrogate… but she is also a mother of her own children, a member of her own community, and a unique person in her own right.

How do you reply to the argument that Surrogacy contracts have no validity since gestational mothers have a moral right to keep the baby once it’s born due to the mutual bond that’s established during pregnancy.

First, I’ve seen no compelling scientific evidence that there’s any biological bond established during pregnancy between the surrogate and the fetus. The fetus receives antibodies from the birth mother’s blood, but otherwise all genetic material comes from the egg and sperm donors — the Intended Parents.

Second… to the extent there is an emotional bond between the surrogate and the fetus, this is common to many different professions. A nanny can come to love the children in her care as her own — but we would not outlaw nannies. Other professions face similar issues… Foster Parents. Nurses in long-term care facilities. Teachers.

But that bond is one directional. There is no reason to believe the fetus “feels” a sense of loss if he returns home with his genetic mother rather than his birth mother. That feeling of loss is part of the responsibility that the surrogate understands and accepts from the start… it does not represent a moral obligation that she should be the baby’s mother.

When considering a surrogacy contract, one could only argue the contract is void if the surrogate had a GREATER relationship to the baby than did the Intended Mother. Even if we assume there is a connection formed in uterus, it could never rise to the level that exists between the baby and his genetic parents.

The Intended parents represent the child’s genetic history, family heritage and cultural identity. I find it inconceivable that the surrogate’s relationship rises to that level.

But clearly the surrogate suffers from the separation from the baby she has carried for 9 months.

It’s not a valid argument that surrogacy is immoral because the surrogate endures the challenges of pregnancy without the reward of having and keeping the baby. This is why the surrogate receives compensation… because there is a cost to being pregnant. It’s hard work, and she deserves to be well compensated.

But there are more types of compensation besides custody of a child. The surrogate agrees that her efforts will be compensated both financially and also with the joy and satisfaction of helping an infertile couple achieve their dream of having a family. Both are reasonable compensation for the work involved.

Remember that the surrogate by law must have had her own successful pregnancy. That is a requirement in every government and clinic worldwide. So the surrogate already has known the joy of having a baby. She is well aware of the value of the joy she is giving to other couples.

At the beginning of the process when the contract is signed, the surrogate is better aware than most the full value of the satisfaction she will receive by giving the baby to the childless couple. She is not being tricked into giving away the baby — she chooses to do it exactly BECAUSE she is aware of what she is giving away. That is her gift, and her right.

William (Bill) Houghton is the founder of the Sensible Surrogacy consultancy, an advocate for ethical and transparent gestational surrogacy treatments worldwide. He is also a 2x surrogacy parent himself. Since 2012 Mr. Houghton has advised hundreds of couples on conceiving their families at clinics around the world. His personal expertise extends to the risks and opportunities of gestational surrogacy at dozens of surrogacy destinations (both popular and obscure; transparent and shady).

William Houghton
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