What are the moral implications of using another woman’s body in order to fulfill a personal wish for procreation? Should Public Policy allow surrogacy?
Introduction
Airing on television since June 2017, hit series The Handmaid’s Tale tells the story of June, a former working woman forced into surrogacy by an oppressive dictatorial regime in a dystopian American society ruled by terror and theocracy. In the series, surrogates are called “handmaids” and as fecund women in an infertility-ridden world, they are expected to bear children for their masters. However, they are always deprived from the right to motherhood, regardless of the emotional attachment they might experience with their child before and after it is born. Their surrogacy is a punishment inflicted upon them by the regime for their past “sins”. In real life, surrogacy is often described as a negative phenomenon and perceived as a profoundly problematic form of commodification of human reproduction on one hand, and a dangerous vector of exploitation on the other.
In terms of public policy throughout the world, surrogacy is far from being consensual. Even though there is proof that it is a global, quickly-developing phenomenon, there is little consistency as to how countries handle this matter. The scarcity of data about annual birth rates stemming from surrogacy due to secrecy and unspecific statistics in terms of ART (Assisted Reproductive Technology) further complexifies the politics of surrogacy, making it hard for analysts and policymakers to grasp the complexity of the matter at hand.
In recent years, developed states have begun to address surrogacy or to make their legislation more flexible when it comes to this issue. In 2013, the Child Parent Security Act in New York State lifted the ban that had been put into place by Governor Cuomo in 1989 shortly after the controversial Baby M case, now making strictly gestational surrogacy legal. In France, if surrogacy contracts are void and prohibited, the Cour de cassation ruled in July 2015 that children born of surrogates could be recognized as French citizens if the surrogate or the father is French, to protect these children from a stateless status. A contrario, countries that used to be popular hubs for the international surrogacy market like India, Thailand, Nepal and Mexico have enforced bans on foreign intended parents seeking commercial surrogacy. Thus, gaps and legal loopholes between countries on the issue are far from being resolved, and many advocate for a global legally binding consensus on surrogacy, which could acknowledge the rights of the children concerned all the while ensuring that illegal and exploitative practices are duly regulated.
Section I: THE BIRDS, THE BEES AND THE SURROGATE
Nowadays, there are many different types of reproduction and, one could think, almost as many types of surrogacy. According to Merriam-Webster dictionary, a surrogate is “a woman who becomes pregnant usually by artificial insemination or surgical implantation of a fertilized egg for the purpose of carrying the fetus to term for another woman”. Parents who recur to surrogacy are called “intended” or “commissioning” parents. A surrogacy is frequently the outcome of barrenness or a fragile physical condition of the would-be mother which would make pregnancy life-threatening for her, but it is to be set aside from the so-called “surrogacy of convenience” in which the intended mother’s reasons to avoid pregnancy are strictly based on comfort. Going further, a distinction based on the genetic relationship between the surrogate and the child is made between traditional surrogates, those who get artificially inseminated with the intended father’s sperm and thus remain the baby’s biological mother, and gestational ones, who carry the intended mother’s egg through In Vitro Fertilization.
The surrogate mother’s motives also call for yet another distinction made depending on the nature of the agreement. Commercial surrogacy, in which the pregnancy and birth of the baby are considered a paid service given by the surrogate to the intended parents, can be arranged through a specialized surrogacy agency, which handles all the practical details in countries and states where this practice is legal. Altruistic surrogacy, on the other hand, doesn’t involve financial compensations besides expenses strictly related to covering the costs related to the pregnancy itself. A surrogacy agreement can either be made domestically (in the intended parents’ home country) or internationally if foreign legal conditions are considered more favourable to the process.
The reasons for choosing either type of surrogacy vary depending on legislation, financial resources and personal reasons and values, namely of an emotional nature. Traditional surrogacy tends to be cheaper than the procedure involving In Vitro Fertilization, but can be outlawed in some countries which makes gestational agreements seem like the better option. For the sake of simplicity and because it is the most widespread phenomenon, the authors of this article have chosen to focus on traditional surrogacy, which tends to pose more ethical issues than its gestational counterpart for the biological conditions in which it is carried out and the complex issues that might arise from these.
Myriad questions come to mind when evaluating the ethics of surrogacy, or rather, since we’ve seen above that the process can vary greatly, of surrogacies. How can we tell which types of surrogacy should be legal as opposed to the types that shouldn’t be? Is there a way to provide infertile parents the opportunity to raise children while respecting the surrogate mother’s rights? Is it ethical at all to let money come into the reproduction process? Shouldn’t we rather turn the concerned parents-to-be towards other, more consensual ways of raising a child, such as adoption?
Section II: A STEP TOWARDS REPRODUCTIVE JUSTICE ?
To find out if surrogacy respects human dignity and is compatible with human rights, one must look more closely at the arguments in favour of ARTs made by its advocates. It’s interesting to notice that what for some is a callous endangerment of female empowerment can be a vital way to assert women’s rights upon their own bodies for others. Thus, pro-surrogacy feminists sustain that far from being alienating, surrogacy — when done right — is a form of self-determination in the sense that the surrogate is the only one who can choose what to do with her body, and is at liberty of entering a contractual agreement with the parents-to-be. It is thought to flatten inequalities between fertile and infertile women and to fulfill parents’ wishes to raise a child, giving way to reproductive justice.
Surrogacy advocates also associate the right to bear children for others to raise to that of buying and using contraception or freely getting an abortion for an unwanted pregnancy. These individuals believe it is unethical to keep a woman from carrying a child for other people as it is to prohibit her from terminating an undesired pregnancy. Indeed, why is it morally and legally acceptable for men to donate sperm and to get paid in countries where women cannot choose if they want to engage in surrogacy, commercial or not? Surrogacy hence becomes intrinsically linked with pro-choice politics, provided that surrogate mothers are fully conscious of their choice and willing to cooperate at every stage of the process. Many mothers, even if paid for their service, engage in surrogacy because of the non-financial, emotionally stimulating benefits of contributing to other people’s happiness through pregnancy, an experience several women enjoy. Furthermore, part of the job of good surrogacy agencies is making sure that the surrogates hired are also altruistically motivated by the procedure, which fosters the good relationship between her and the parents-to-be.
However, you may ask, wouldn’t it be more reasonable if we are to consider the overpopulation crisis throughout the world for desiring parents to adopt, instead of engaging in a painfully complicated procedure with controversial ethical implications? Alas, surrogacy advocates will respond, adoption procedures can be extremely long and psychologically challenging. Paperwork and tests to assess the parents’ suitability can take years, and it is a known fact that in countries like the United States, there are many more couples seeking to adopt than children up for adoption. Therefore, the adoption argument is not as solid as you may think, and surrogacy often appears to intended parents as a quicker and easier way to beget a child.
If all these arguments are valid and convincing, the tricky part is knowing what to do when moral complications arise. Several incidents have been brought to court around the world as the outcomes of a surrogacy contract gone wrong, such as the “Baby M” case in 1989 and the “Baby Gammy” case in 2014. These publicized situations have nourished anti-surrogacy arguments, leading many countries to restrict or ban this practice altogether.
Section III: WOMBS FOR HIRE?
Desires are not the same as rights.
A common argument against the right to procreative assistance concerns the differentiation between a desire/interest and a right. For instance, the right to found a family as stated by the ICCPR article 23, does not legitimately establish one’s right to outsource the process of creating a child through another body. It poses the problem of whether we consider that a ‘lack of capacity’ gives a right to compensation in order to fulfill one’s interests. According to Ronald Dworkin, natural inequalities may be subject to a right of redistribution (Justice in the distribution of health care, MacGill Journal 1993). J.C Burley in her analysis of Dworkin’s standpoint, argues that from such a perspective, infertile couples could then seek a right to compensation for not having the same inherent capabilities that most couples do. However, she then suggests that having children is not a right in itself, but rather a taste, brought on by a certain social preconception of ‘the good life’ (The price of eggs: Who should bear the cost of fertility treatment? The Future of Human Reproduction, Oxford 1998). One could argue that awarding the right to procreate through surrogacy places the desires and interests of the intended parents before the right of the child or the surrogate.
Children’s rights
The rights of the children born of surrogacy arrangements are often the least explored. The Convention on the Rights of the Child, ratified in 1989 by the United Nations, enshrines amongst others, the right of a child to be protected from sale or trafficking, to be properly registered at birth, and the right to know his or her parents. This poses legal difficulties as different interpretations can arise in surrogacy cases.
For instance, does the “right to know his/her parents” apply to the couple raising the child, or does it include the child’s right to know the identity of his gestational carrier, or a right to information about other possible siblings he/she may have? A contractual agreement that transfers the duties of parenthood from the gestational mother to the intended parents at birth, makes the rights of the child born under such an arrangement considerably unclear.
Another existing risk in the current framework of international surrogacy arrangements is that of the child’s statelessness. In the case of international commercial surrogacy, legal asymmetries and loopholes between the country of the surrogate mother and that of the intended parents can lead to situations in which the child is not guaranteed citizenship of either of the given countries, thus placing the child in an extremely vulnerable situation and in violation of the CRC.
The rights of surrogate mothers: the poor bear the children of the rich?
The issue of commercial surrogacy came to close public scrutiny with the ‘Baby Gammy’ case of 2014. The child, born of a thai surrogate mother, was supposedly left by his Australian parents when they found out he had Down’s syndrome. His twin sister who was born healthy, was brought back to Australia by the parents. It was said that the parents had requested an abortion when they found out about the child’s condition. The surrogate mother refused on religious grounds, to undergo the termination of her pregnancy.
First of all, this case draws attention to the legal challenge posed by surrogacy, as related to the surrogate’s right over her body: did she have a moral or legal right to choose not to get an abortion, seeing as the baby was not legally or genetically hers, but also considering that the operation would be performed on her body?
The case of Baby Gammy also shows how commercial surrogacy is problematic when it takes advantage of the financial hardships and vulnerability of surrogate mothers, especially in underdeveloped countries, as well as the asymmetrical bargaining power between the intended parents and the surrogate. The global industry of commercial surrogacy is estimated to be worth approximately $6 Billion annually (Smerdon, Crossing bodies, crossing borders: international surrogacy between the United States and India, Cumberland Law Rev. 2008). It has brought to light the practice of reproductive tourism, in which couples who wish to hire a surrogate go through agencies in developing countries which are substantially cheaper. Estimations from India, one of the most largely concerned countries when it comes to reproductive tourism, show that a woman can earn as much as 6000$ for a surrogacy service, compared to approximately 20 000$ for an american surrogate (Johnston, Medscape, The ethics of outsourcing surrogate motherhood to India, 2008). As such, the commercial characteristic of surrogacy poses the problem of commodification of women’s bodies, as well as turning children into mere products that come at different prices according to different markets.
In her 1988 book “The Sexual Contract”, Carole Pateman argues against reproductive labor, on the grounds that it creates deep alienation between a woman and her sense of self. In order to sell a product or service in an economic context, you must be able to separate yourself from the product of your work. In the case of surrogacy (as well as prostitution, according to Pateman), such a commodification is harmful because it forces women to alienate themselves from something that is deeply rooted in their sense of self (their body and sexuality). Hence, reproductive labor ought not to be commodified.
However, some argue that the remunerative aspect of surrogacy is crucial to ensure the fairness and ethical viability of its practice.
If we consider surrogacy as being a service agreed upon by two contracting parties, then why shouldn’t the provider be compensated for said service? Whether we agree or not, our society’s way of recognizing the value of something or someone, is through economic payment. And it would seem only fair to recognize the value of the service provided by the surrogate, by providing remuneration.
In addition, it seems incoherent to consider altruistic surrogacy as morally acceptable, whilst at the same time denouncing commercial surrogacy as an unacceptable exploitation of women’s bodies. If we acknowledge the health risks and emotional complications of the surrogate’s position, then how does doing it for free make it morally better?
In Pateman’s argument, one of the objection to commercialization of surrogacy is that it requires a long-term personal corporal commitment on behalf of the surrogate, in order for the service to be completed. Such strains and sacrifices of human bodies should not be subject to normal market laws. But in that case, other professions we consider to be perfectly normal should be subject to different regulations. For instance professional athletes or ballerinas famously endure tremendous amounts of painful training and long-term corporal sacrifices in their career. Is it morally wrong to remunerate them for their work?
Wealth inequalities, women’s rights and the ramifications of scientific advances on human identity, are undeniably linked to the issue of surrogacy and make its moral acceptability all the harder to determine. Additionally, these reflections must take the moral and legal rights of several agents into constant consideration: how can public policy and international regulations respect and protect the rights of the want-to-be parents, the surrogate, and the child, equally and simultaneously?
Section IV: TO BAN OR REGULATE, POLICY RECOMMENDATIONS
Whether it be concerning surrogacy, access to fertility treatments, prostitution, etc; public policy is in an extremely delicate position, as matters relating to the private sphere of sexuality and reproduction are always particularly hard to delineate and regulate.
What is clear however, is that the need for accurate, up-to-date, and cross-national data. Policy-makers have to understand what exactly is at stake, not only in terms of their own national regulations concerning surrogacy, but also taking into account the impact they have on women abroad. Reproductive tourism (as seen above) also stems from the incoherence and disparities of surrogacy laws. The first step then, is to have a clearer view on current practices of international surrogacy.
Secondly, surrogacy requires a contract and needs both a legal and medical representation of all parties. If surrogacy is to be regulated it is indispensable that both parties (the intended parents and the surrogate) be legally represented, regardless of the country in which it takes place. The stipulations of surrogacy contracts must be clearly defined and able to anticipate upcoming difficulties. What happens in case of divorce of the intended parents? What happens if the child is born with disabilities and the couple wishes to withdraw? What provisions are put in place to guarantee citizenship to the child?
Comprehensive information must also be given to women who choose to carry a child so as to limit the risk of psychological trauma. Indeed, surrogacy is still portrayed by many agencies as a wonderful, simple act of altruism, leaving aside the many complications involved in the process.
Finally, one of the most interesting solutions to the regulation of surrogacy practices is the theory developed by Casey Humbyrd, doctor and assistant professor at John Hopkins Medical University. She rejects the arguments against surrogacy based on welfare and commodification (for more information, see here). She then analyses the argument of harmful exploitation of women, who are induced to behave in a way that is contrary to how they want to act, because of financial incentive (Humbyrd, Fair trade international surrogacy, 2009).
Humbyrd legitimately argues that this is the case of many professions. For instance, our will does not agree with cleaning toilets, why is being a cleaning lady less exploitative than carrying a child? Many women in harsh financial situations accept equally exploitative jobs.
For Humbyrd, the challenge that remains is then to make sure that the benefits given to the surrogate be fair. She seeks to apply Fair Trade principles to international surrogacy, centered around fair price (tackling the price disparity between countries), working conditions (by minimizing potential harm and establishing occupational health guidelines), transparency and accountability.
She offers to formalise inter-country agreements on surrogacy, modeling The Hague Convention of Intercountry Adoption for instance. Agencies and brokers involved in surrogacy should be properly vetted, accredited; and migration laws should be to adapted to ensure children citizenship, as well as to make sure developing countries have a say in surrogacy practices within their borders.
Concluding remarks
The debate over surrogacy ignites intense oppositions among various actors, from philosophers to politicians, journalists, NGO activists. The arguments of surrogacy advocates and opponents both rely on ethical considerations. On the one side, surrogacy is a way to participate to the happiness of want-to-be parents and provides the opportunity to raise of child in situations of infertility. On the other side, opponents argue that the exploitation and commodification of women’s bodies is simply a no-go.
But even if you are strictly against surrogacy, it is sensible to admit the unlikelihood of it being banned in all countries, thus making it necessary to formulate regulations that at least make it more ethically responsible. This would be in the best interest of all parties involved, and makes a strong case in favor of opening up debates on international legislative solutions. Whilst acknowledging the many possible ramifications and complications of permitting surrogacy, the idea of allowing it in order to better control its process and better protect surrogates and children’s rights seems the most logical. A Fair Trade inter-country model overseeing surrogacy practices would be, in this sense, a step in the right direction.
