How do ‘altruistic’ and commercial surrogacy affect the
rights of women and children?
In its most basic form, surrogacy requires that a woman gestate a child for a third party and relinquish her child at birth. In popular consciousness the narrative surrounding surrogacy is usually controlled by the buyers, agencies and fertility industry. Media stories frequently feature ‘intended parents’, joyful to have created ‘their own’ longed for family. The impression created is that surrogacy is a benign method of starting a family for those who cannot have their own biological children. Stories of surrogacy arrangements that have ended badly or even disastrously, such as in custody disputes or maternal death, are rare enough to be dismissed as freak outliers. The voices of the women who have been pregnant and given birth and of people conceived through surrogacy arrangements are heard far less clearly in public discussion.
Advocates of surrogacy often employ arguments based on the ‘rights’ of surrogacy commissioners to ‘their’ children or the reproductive ‘rights’ of gay men or transgender people. The discourse of ‘rights’ has obvious rhetorical value because, in a liberal society, it frames increasing access to surrogacy as progressive. Nevertheless, the right to parent a child is not recognised in law. Nor does the right to have a woman bear your children actually exist outside of fictional dystopia. Such has been the success of pro-surrogacy arguments that a recent consultation paper drawn up on surrogacy law in the UK was prepared without including any organisation primarily concerned with the rights of women and children.
The language that has developed to describe surrogacy is highly prejudicial, it is deployed to hide some relationships within the transaction and emphasise others. ‘Surrogate mother’ would highlight the maternal relationship and so is often shortened to ‘surrogate’, alternatively ‘gestational carrier’, ‘carrier’ or ‘host’ are used. This has the effect of dehumanising the woman who is pregnant and casting her as an incubator. Furthermore ‘surrogate’ means substitute, but how can the only mother a child has ever known be the replacement? Indeed the only sense in which ‘surrogate’ makes any sense is through the fertility of one woman being substituted for another. It is always a man that gets a surrogate. Likewise, when used in gestational surrogacy, egg ‘donor’ is the prefered term for the child’s maternal genetic parent, which obscures both a relationship and the often commercial nature of the transaction. On the other hand, the people procuring the child are parents even before conception – whether ‘commissioning parents’ or ‘intended parents’. This language has political consequences. To cede to these terms is to legitimise the linguistic tricks being played and accept the implied roles and importance of the parties involved. Therefore I have chosen to use the terms ‘mother’ or ‘gestational mother’ and ‘surrogacy commissioners’ throughout this essay.
Feminist objections to surrogacy have existed since its commercial inception in the 1980s, with early predictions that it would be the poorest, most vulnerable women who would become gestational mothers, mirroring prostitution. Advocates of surrogacy, along with liberal feminists criticise this position as ‘anti-choice’ and depriving women of an opportunity to use their bodies for payment. Are decisions made out of necessity really choices? A meaningful analysis must consider the context, rather than simply assuming that any decision is evidence of autonomy.
This essay will argue that both commercial and ‘altruistic’ surrogacy are a violation of the rights of women and children and should be prohibited.
The Mother-Child Relationship
In patriarchal societies, families are described and named through the male line (patrilinear). The intimate biological, psychological and social relationship that exists between a mother and child from conception is secondary to male provision of sperm. The ancient image of woman as a vessel for man’s seed remains pervasive despite increasing understanding of the greater maternal contribution, through genetics, epigenetics and microchimerism. Indeed even treating male and female contributions to reproduction as equal, when in fact they aren’t, discriminates against women. Language is plainer when directed at animal pedigrees, for example racehorses are by sire out of dam, but this implication is just as strong in human kinship.
This is essential context for the development of modern surrogacy because without such cultural understanding, the idea of family foundation based solely on paternity is absurd. Traditional surrogacy, where a woman is inseminated with the sperm of the commissioning father, is exactly this. Surrogacy pioneers had to develop the mythology of paternity beyond dominance, into exclusivity – to claim that fatherhood conferred the right to demand a mother be entirely absent. This ideological foundation took a number of early hits, notably in the seminal ‘Baby M’ case heard in New Jersey’s Supreme Court. William and Elizabeth Stern had instigated a traditional surrogacy arrangement in which Mary Beth Whitehead would relinquish her child in return for $10,000. After the birth of ‘Baby M’, she refused. Although custody was ultimately granted to the Stern’s, because their affluence was thought to represent the child’s best interests, the Court ruled that Mary Beth Whitehead was the child’s mother and the contract void.
Science provided the means for surrogacy commissioners to more reliably alienate a mother’s right to a relationship with her child. In gestational surrogacy an embryo is created with an egg provided by a second woman. The lack of genealogical link between mother and child had a profound effect on recognition of their relationship. In Johnson vs Calvert a gestational mother, Anna Johnson, was found to have no legal relationship with the child she had given birth to. That technology now allows some women to claim the primacy of their genetic contribution, does not alter the fact such arguments rely on trivialising the gestational relationship between mother and child and are therefore profoundly anti-feminist.
Every child’s right to know and be cared for by their parents is enshrined in article 7 of the United Nations (UN) Convention on the Rights of the Child (CRC). No definition of ‘parent’ is given, but from the child’s perspective the gestational mother whose voice s/he can recognise in utero must be considered a parent, as must the child’s genetic parents where these are not the surrogacy commissioners. Anonymous gamete provision and failure to keep accurate records of all parents infringes the child’s identity rights.
The surrogacy commissioners in Johnson vs Calvert were recognised as parents by virtue of their intention to parent, which has since become a standard of determining legal parentage in surrogacy cases in California and elsewhere. The ‘intent to parent’ standard fails to consider the child as a separate rights-bearing person. Article 3 of the CRC states that in all actions concerning children the best interests of the child shall be a primary consideration. The rights of the child are ignored, with foremost consideration given to adult desires, wherever intent to parent or the provision of an agreement become the guiding principles of custody decisions.
The demand for surrogacy is created by commissioners through their desire for a child. The desire develops into a demand, gratified by exercising the supposed right to use a woman’s body. For this to be considered ethical, it must be accepted that childlessness is sufficiently harmful to justify any risk to the gestational mother or child and no other remedy for that harm exists. Under patriarchy, women’s fundamental contribution to society is propagation of the species and stigma is attached to failure to fulfil this role. There is a growing trend towards ‘social’ surrogacy, where wealthy women opt out of pregnancy because of concerns about the effect on their bodies or careers. Rather than freeing women from stigma, surrogacy merely provides a new avenue through which some women are pressured to conform to existing cultural norms, whilst reducing other women to their child bearing capacity to achieve this.
Women’s rights and choices are constrained by their role within the family and the wider societal attitudes engendered, therefore the status of motherhood should be considered a central feminist issue. The UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) places an obligation on ratifying states to ensure their equal enjoyment of human rights and fundamental freedoms on a par with men. Article 5 recognises that social and cultural attitudes, including stereotyped roles, reinforce the position of women as inferior to men and requires that States take appropriate steps to challenge this. Surrogacy is irreconcilable with this duty. It cultivates subordination of maternity to paternity and reifies the female reproductive role so that it may be traded as a separate entity. Stereotypes are pervasive in surrogacy discourse. The idea that women gain a special sense of purpose and self worth through being pregnant or in delivering a child to others is a cliché often used to defend the practice and capitalises on female socialisation to be caring and self-sacrificing. Marketing also propagates the trope of female altruism, for example egg but not sperm providers are expected to be motivated by a desire to benefit others rather than financial gain and profiles that do not conform to these expectations are discarded by agencies.
Surrogacy agreements alienate gestational mother and child without respect for the rights of either. There is also a wider effect on recognition of the mother-child relationship, which is why a feminist analysis of surrogacy must go beyond individuals to women as a class. The existence of surrogacy, like prostitution, harms all women.
Capitalist Market Forces
Surrogacy has grown into an industry worth at least $2.3 billion annually. Even in ‘altruistic’ arrangements where mothers supposedly do not profit, the commercial interests of fertility clinics, lawyers and agencies are ever present. Surrogacy commissioners are wealthy because ability to pay is a condition of their entry into the market. Gestational mothers are forced into the market by economic necessity, so are always of lower class and status and often from more marginalised racial groups. This creates a profound inequality between the parties within the agreement, which is both institutionalised and sanitised by a contract. Within the capitalist economy all parties to a contract are treated as free and equal and market forces left to determine fair exchange. Inequality due to sex, gender, race, class, caste or economic vulnerability is obfuscated because neither capitalism nor neolibralism can account for it.
As an industry surrogacy promotes eugenics. Reproduction of the wealthy ‘desirable’ population is supported at the expense of the poor ‘undesirable’ population. Value is assigned to both egg providers and in some cases gestational mothers based on perceived desirable traits. Quality control of children is also widespread through pre-implantation genetics testing, sex-selection, abortion for foetal abnormality and in some cases abandonment.
In order to function as a successful market any industry must create and fulfil demand. The demand for children exists independently and is easily harnessed, so the surrogacy industry is predominantly concerned with supply. Critical to this aim is protecting the interests of consumers (surrogacy commissioners) and ensuring reliable delivery of the product – children. This requires a favourable environment, achieved through lobbying governments to develop pro-surrogacy policy or situating the market within jurisdictions with lax regulation. Unfortunately for business, governments of countries that have allowed international commercial surrogacy hubs to flourish, such as India, Thailand, Nepal and Cambodia, have generally moved to ban the practice in response to scandals and human rights abuses. This has proven to be merely disruptive as the market simply seeks another permissive jurisdiction in which to continue trade.
The raw material of the surrogacy industry is women. The fact that gestational surrogacy accounts for almost all surrogacy arrangements ensures maximum value from the available resources. Disaggregation of egg and gestational capacity functions to increase the pool of gestational mothers because commissioners are no longer invested in their choice of mother and more economically disadvantaged women are more easily coerced into accepting less money. Recruitment of gestational mothers has proven particularly successful in emerging economies, where extreme poverty is still present and women more marginalised .
The business of surrogacy agencies is farming human relationships. People must become attached and detached from each other in a managed way to effect a successful transfer of the child. This requires active cultivation, left unsupported after an agency went bankrupt, all mothers expressed loss and despair when separated from their child.
The commercial nature of the surrogacy industry is carefully shielded behind a respectable veneer of altruism. Indeed the law in countries such as the UK, Canada and Australia is predicated on the belief that where the mother is not compensated, surrogacy arrangements can actually be altruistic. Profit making by fertility clinics and lawyers is still permitted in uncompensated surrogacy. Not-for-profit agencies must still have an income to cover costs and their activities extend to lobbying for commercial surrogacy. There is also the inconvenient truth that few women are willing to trade their body without financial reward. In the UK, mothers report being paid more than out-of-pocket expenses as itemisation is not required. Alternatively commissioners seek commercial markets abroad. ‘Altruistic’ surrogacy is often a sham, being instead poorly paid commercial surrogacy.
Gestational mothers and egg donors are healthy women undergoing medical treatment, with attendant risks, entirely for the benefit of surrogacy commissioners. This creates an unusual doctor-patient relationship that has parallels with that created by living organ donation. This comparison is limited by the almost universal condemnation of any commercial interest in organ donation. The World Health Organisation (WHO) guiding principles on human cell, tissue and organ transplantation recommend prohibition of payments to donors on the basis that coercion, profiteering, human trafficking, objectification and commodification of donors is likely to result. Despite the exclusion of gametes and contract pregnancy from the scope of these guidelines I will argue that commercial interest in surrogacy is as ethically noxious as in organ donation.
In contrast to the optimistic picture presented by marketing materials, a successful surrogacy outcome is far from guaranteed. Studies conducted around the world report pregnancy rates of between 26.4-66.7% and live birth rates of 18.9-55%. Fertility clinics are judged on their conception rates and have been known to inflate their success rates to attract business. Conflict of interest in doctors and clinics may have financial motivation as here, but can also arise from the divergent interests of commissioners and mothers. Pregnancy and childbirth come with the risk of complications ranging from mild to permanently disabling or life threatening, making it imperative that doctors act in the best interest of their patients rather than the commissioning party, by whom they are being paid.
Pregnancy rate can be improved by transferring more embryos but this also increases the risk of multiple pregnancy, in which the rate of obstetric and perinatal complications increase significantly compared with singletons. Ethics committees therefore recommend elective single embryo transfer. However, the multiple pregnancy rate in the US is still higher for gestational mothers than other IVF patients. Suggesting that where interests conflict, in many cases the interests of commissioners and clinics prevail over mothers and children.
Studies undertaken in India highlight the lack of involvement of mothers in decisions affecting their pregnancies. In interviews with fourteen pregnant women, none could explain how many embryos had been transferred or possible complications of multiple pregnancy and foetal reduction. One mother had specifically refused consent for multiple pregnancy, yet was pregnant with twins and had been denied a selective abortion. She had instead accepted more money and a caesarean section. Commercial contracts in the US routinely contain clauses giving the commissioners the right to choose an abortion. Elective caesarean deliveries were often chosen by doctors or commissioners and forced on mothers for convenience or because of a perceived risk to the baby during natural delivery.
There is evidence that the risk to women and children’s health in gestational surrogacy is higher than in natural conception pregnancies. This comparison is important because risk perception by gestational mothers is likely to be highly influenced by her previous pregnancy outcomes. When making this comparison Woo et al found increased prevalence of preterm birth, low birth weight, hypertension, gestational diabetes, placenta previa and a higher rate of cesarean birth compared to previous natural pregnancies in the same women.
Egg harvesting involves injections of exogenous hormones to stimulate development of follicles followed by surgical retrieval. The short term risks of egg donation include ovarian hyperstimulation syndrome (OHSS), ovarian torsion, infection, bleeding and anaesthesia complications. Their prevalence in young, fertile egg providers are poorly studied, but Jayaprakasan et al found that almost all women reported symptoms consistent with OHSS, with 15% requiring hospital treatment where more than twenty follicles were stimulated. In commercial egg donation as in the US there is a clear financial motive to increase the number of eggs harvested combined with little regulatory oversight. More than twenty eggs were retrieved in 40% of donor cycles.
The long term risks of egg retrieval procedures are largely unknown but may include effects on future fertility and an increased risk of developing reproductive cancers. In mice repeated superovulation decreases ovarian reserve, reduces ovarian function and increases the risk of osteoporosis and cardiovascular disease. Evidence in humans is conflicting and weak, however some studies have reported a higher risk of developing cancer following ovarian stimulation. ASRM guidelines recommend a maximum of six oocyte retrieval procedures per egg provider however studies have reported women who have undergone twelve previous donations. The absence of long term safety data is frequently misinterpreted or mis-sold as an absence of risk. To recruit or allow women to provide eggs solely for the benefit of others without a solid evidence base for their long term safety is negligent and runs contrary to the ‘do no harm’ principle of basic medical ethics.
The standard of informed consent naturally flows from respect for a patient’s right to autonomy and bodily integrity. The examples from India feature a total disregard for these rights and so are very clearly unethical. However in all of these examples the quality of consent is degraded, either through coercion or lack of information. Enforceable surrogacy contracts generally contain abortion clauses. Refusal to comply with the contract is a breach that makes mothers liable to return their fees and reimburse commissioners for costs. These clauses disregard the fact that the prerogative to terminate a pregnancy is not grounded in a genetic relationship but in the mother’s right to reproductive autonomy and bodily integrity.
Coerced consent is invalid, so surrogacy commissioners must rely on the act of signing the contract as evidence of valid consent. This is problematic for two reasons. Firstly because it frames consent – once granted – as perdurable, which has implications for other scenarios where one might wish to withdraw consent, such as during sex or in the course of medical treatment generally. Secondly it requires that blanket consent, without specific knowledge of the circumstances in which the termination is being requested, is sufficiently informed. Full informed consent could only be given contemporaneously and without obligation or penalty.
Understanding of the risks and consequences of treatment is a requirement for informed consent to be given. Complete understanding is an impossible standard in practice, but the lack of material benefit to egg providers and gestational mothers mandates a high level of disclosure and counselling. This is precluded by lack of knowledge regarding the prevalence of risk involved. Without full autonomous consent, trading in humans for purposes including surrogacy and egg harvesting is trafficking.
To exploit something is to use or benefit from it. Surrogacy is clearly exploitative in this sense, as commissioners both use a woman’s body and benefit from the arrangement. Exploitation as a moral judgement concerns deriving unfair advantage from another person.
‘Fair benefits’ exploitation arises because there is disparity in value within the exchange. To assess this value must be assigned to both a woman’s body and her child, which I will discuss in a later section. Here I will focus on two examples. The first being uncompensated surrogacy, where the mother is the only party who does not gain anything from the arrangement. This is clearly unfair use as she risks her health to benefit both commissioners and third parties yet she receives nothing in return. The second example involves commercial transnational surrogacy in India, which cost approximately one third that in the US. This may have been partly justified by exchange rates, except in the US gestational mothers are paid approximately 35% of the total surrogacy fee, in India this ranged from 15-20%. Gestational mothers in India received a significantly lower proportion of the fee, increasing the share for clinics. Trafficking and exploitation of prostituted women is censured in article 6 of CEDAW. The convention predates the development of the surrogacy industry but its intent to suppress profiteering from the oppression of women is clear and the actions of clinics and agents in surrogacy should fall with its latitude.
‘Fair process’ exploitation occurs where advantage is pressed in circumstances where it is inappropriate to do so, such as leveraging poverty to secure consent. Commercial surrogacy exists because most women will only consider contract pregnancy if they have a dire need for money. Surrogacy commissioners are choosing to have a child by exposing the gestational mother to harm, creating a duty of care yet instead they pursue their own advantage, making all commercial surrogacy exploitative.
States may become complicit in exploitation, because where members of society face poverty and deprivation, politicians have a responsibility to alleviate this. Where governments establish a market whilst failing to address deprivation they exploit the poor, by offering economic opportunities they would not accept in fair conditions.
Wrongful use exploitation also occurs in uncompensated surrogacy as seen in a UK custody case in which the gestational mother was found to have undiagnosed learning difficulties. Aside from the issue of capacity the judgement makes clear that the surrogacy commissioners took advantage of her vulnerability and displayed total self interest. Also of concern are studies that suggest that a relatively high proportion of gestational mothers are sexual abuse survivors or have unresolved trauma from previous terminations or surrendering a child for adoption. The idea that uncompensated surrogacy occurs between family or close friends is a fallacy, studies report approximately three quarters of gestational mothers had met the commissioners for the purpose of surrogacy.
An important facet of exploitation not encapsulated by either ‘fair benefit’ or ‘fair process’ is that taking advantage of structural inequality is inherently wrong. To do so is to normalise, become complicit in and incentivise the perpetuation of injustice. Women are disproportionately affected by poverty, both economic and of opportunity. Surrogacy leverages both these oppressions to capitalise on and propagate the disadvantage of women as a class. It normalises the idea that women can be bought.
The subjugation of women involved in surrogacy is demonstrably worse in developing countries compared with developed nations. Indian mothers were often required to live away from their children and families in dormitories, where their diet and exercise could be controlled. They were also often required to remain away from home for a period after the birth so that they could express milk for surrogacy commissioners to give to the infant. These women experience intersecting inequalities. ‘Intersectionality’ was developed to explain the discrimination faced by black women, that cannot be attributed to either their race or sex but flows from both. Sex, race, class, caste and poverty intersect to create profound disadvantage that overwhelms women’s agency.
The fertility of women in the Global South and marginalised racial groups in developed countries has long been viewed as a strain on the environment and economy. This is used to justify state control of fertility, including forced sterilisation and long acting contraceptives. Surrogacy fits neatly into this paradigm. The ‘problematic’ fertility of disadvantaged women is used to produce children for the privileged classes, at the expense of their ability to nurture their own children. This injustice is heightened given the parallels between Western nations’ history of imperialism in many of these countries and the colonisation of womens reproductive capacity. That this neocolonialism was sanctioned at all by post-independence states is because subjection of women through colonisation is patriarchal orthodoxy.
Objectification is to treat a human being as though they were a mere object. Nussbaum describes different ways in which objectification is realised, which I will discuss in the context of surrogacy.
The first is instrumentalisation, treating a person as a tool for achieving the objectifiers goals. Women are obviously instrumentalised in surrogacy. They become tools and commissioners are often disinterested in personal interaction. Children are also instrumentalised because their needs and rights are of secondary importance to the demands of commissioners. Child protection procedures in surrogacy are weak and children have been abandoned by commissioners, often due to disability. ‘Baby Gammy’, who has Downs syndrome, was abandoned in Thailand by Australian surrogacy commissioners who took his twin sister home with them. The male surrogacy commissioner in this case is a convicted paedophile, able to purchase children without any checks of his background.
Denial of autonomy is institutionalised within surrogacy by contract. Issues covered in surrogacy contracts may include the disclosure of medical records; consent for abortion; restrictions on travel and lifestyle clauses stipulating diet, exercise and activities the mother may engage in during pregnancy. In India, mothers were required to leave their families and live in dormitories for the duration of pregnancy. The control over basic freedoms and decision making capacity for gestational mothers by these contracts goes beyond objectification and is sufficient to amount to ownership. Surrogacy should therefore be considered a form of slavery under the current definition.
Dissociation is often employed as a coping strategy for the psychological harm gestational mothers face. This requires that they objectify themselves and deny their own autonomy. Mothers must subvert their maternal instincts using cognitive dissonance reduction techniques that amount to ‘a form of objectification via self deception’. The vilification of mothers who do not relinquish their children on pro-surrogacy forums is motivated by the exposure of cognitive dissonance in others.
A person is treated as fungible where they are treated as interchangeable with other similar persons. Gestational mothers are often assigned to commissioners by agencies and treated as though only their uterus matters. Clinics in India reported allowing commissioners to use more than one surrogate at a time, in one clinic 30-40% had contracts with multiple surrogates and ‘recently we had one couple who had four children; two children from each surrogate. But if [commisioners] don’t want to have more than one or two children, they might only let one surrogate continue the pregnancy and the other has to go for an abortion’. Here both mother and children are fungible, the commissioners wanted a child, but seemingly did not care which child.
Where a person’s experiences are not recognised or are treated as insignificant they are denied subjectivity. This is noticeable in the lack of research into the experiences of gestational mothers and their children, but is also implicit in some studies that have been done. In concluding that surrogacy was a positive experience for gestational mothers, Jadva et al actually found that 32% of mothers reported difficulty in the weeks following relinquishment, 15% after a few months and 6% after one year. The conclusion must therefore be based not on finding a lack of harm, but on a judgement that the reported harm is not significant. Despite Indian mothers expressing a wish to see their children after birth, it has been reported that the majority of them were not allowed to do so.
Surrogacy commissioners’ demand for exclusive recognition as parents led some jurisdictions, such as California, India and Ukraine, to grant them pre-birth parentage orders so that only their names appear on the child’s birth certificate. The childs official documentation is then inaccurate, their origins and part of their identity concealed and the official record of their mother obliterated. This denies the child’s subjectivity.
Other facets of objectification include not respecting bodily integrity (violability) and treating a person as lacking in agency (inertness), that I have covered elsewhere. Women and children are intensively and extensively objectified by surrogacy. The depersonalisation of women and children functions as a means to cope with the disruption of natural relationships that surrogacy entails and to ensure that the desires of surrogacy commissioners are the foremost consideration. In other words, the stripping of human dignity and rights from vulnerable participants in the transaction is ineradicable.
Commodification of humans as a normative concept is related to objectification, treating a person as if their body is merely a product. Some would define commodification as to only include that which is literally bought for cash. I want to accept the narrow definition of commodification for now and look at commodification of women and children in commercial surrogacy.
Wilkinson argues that commercial surrogacy is not baby selling because the agreement is a service contract with a success clause (final payment). The baby is morally if not legally the surrogacy commissioner’s child because of the genetic link and the gestational mother is granted temporary custody to perform a service. This argument objectifies the child through denial of subjectivity and claiming ownership. It fails to recognise the child as a separate rights bearing person, who develops inside their gestational mother. Dismissing ownership claims, the child cannot be ‘returned’ to the surrogacy commissioners, it is transferred. The second part of the argument concerns whether the payment is for services or purchase of the child. Should the gestational mother refuse to transfer the child and the contract is merely for services then it has been fulfilled. However surrogacy commissioners inevitably seek custody through legal recourse, because transfer of the child is the essence of a surrogacy contract. An investigation by the UN special rapporteur on the sale and sexual exploitation of children concluded that payments to gestational mothers amount to the sale of children, which is expressly prohibited by the CRC. Given that a transfer of the child between parents is necessary in surrogacy agreements it has many parallels with adoption. To protect the rights of the birth mother and child, international adoption law prohibits payment and requires autonomous post-birth consent from the mother for adoption to proceed, it is highly anomalous that national and international surrogacy not be subject to the same conditions as adoption.
The case for why women are not commodified, for Wilkinson, rests on the fact that they are providing labour but are not necessarily objectified and without this cannot be commodified. I disagree. The essence of a surrogacy contract is transfer of a healthy child and the surrogacy commissioners stand a poor chance of achieving this without exerting significant control over the mother and subjugating her interests to theirs. That is why contacts contain the clauses they do. Furthermore it is enough that surrogacy commissioners have license and incentive to exert this control, even if they do not use it. Surrogacy commissioners are seeking the use of a uterus, the attached woman is merely a potential obstacle should she not be suitably compliant. Gestational mothers are always instrumentalized, always fungible because the person is not technically required, their autonomy and subjectivity must always be denied to some extent to realise the commissioners aims. They are always objectified and even under this narrow definition where any payment above itemised expenses is made they are commodified.
Objectification concerns aside, commodification of a person’s labour is not considered unethical. Gestational motherhood is intuitively different to, for example, working on a factory production line – but can this be justified? Some basic terms of employment as a gestational mother include a requirement to work twenty four hours a day for a period of over nine months, for less than $1.50 per hour in the US and barely half that in India, and limited freedom of movement. A mother cannot resign without penalty and may find herself summarily unemployed via an abortion. This doesn’t even clear the hurdle of basic human rights norms let alone employment law.
Labour would usually imply conscious action, the degree of control the factory worker has over production may be minimal, but they are required to act, pregnancy is entirely without voluntary control. The difference then lies in the relationship between labour, the body and the self. Carole Pateman argued that in prostitution a woman’s self is sold because of the intimate relationship between identity and sexuality. Others reject this idea on the grounds that many people – writers, painters, priests – consider aspects of their identity bound up with their work and others, such as athletes, commodify their bodies. This fails to account for the relationship between ‘work’ and ‘worker’
All of these examples are, on some level, an expression of personality – through creativity, belief, committment or discipline. Individual identity shapes a separate commodity. A different relationship entirely occurs in both prostitution and gestational motherhood. Firstly, there is no separate commodity ‘sex’ and ‘gestation’ cannot, in reality, be separated from the female body. Secondly, buyers do not want the whole woman, they want the ‘happy hooker’ or the ‘compliant breeder’. To become a saleable commodity, a woman must transfigure her personality. The self is not expressed, it is destroyed. The moral reconciliation of surrogacy must construct it as ordinary ‘work’ or imagine a disembodied uterus within the marketplace to avoid the fact that it applies the law of supply and demand, not to ‘labour’, but to access to women’s bodies.
This is why the narrow definition of commodification is ultimately unsatisfactory – it ignores the fact that it is the existence of a market, rather than monetary exchange per se that is the problem. Classical political economists, such Adam Smith and Karl Marx, understood that markets affect the individuals involved and shape society as a whole. Satz characterizes markets that are objectionable through harm to individuals or society and may reflect weak agency or extreme vulnerability of market participants. As I have shown, the market in women’s reproductive capacity is an archetypal noxious market and the distinction between compensated and uncompensated surrogacy is arbitrary when considering the harm done.
Far from advancing women’s interests, surrogacy maintains inequality between the sexes in a particularly pernicious and invidious way. It leverages women’s fertility in a society where their interests have historically been subjugated through control of their sexual and reproductive capacity. The problem with commodifying women’s reproductive capacity is that it maintains and reinforces a hierarchy in which women are treated as inferior to men.
Surrogacy is incompatible with the full realisation of the rights of women and children. As I have shown, as a practice it raises a number of concerns related to medical ethics, exploitation and commodification. Its fundamental root lies in the patriarchal relationship between men and women. Whilst slavery, exploitative labour and the sale of human organs are almost universally condemned, the exploitation and sale of female bodies is accepted to a much greater degree. There is no part of female anatomy that cannot be profited from. Given the growth and increasing acceptance of the surrogacy industry it is a key contemporary issue for feminists.
The general direction of reform globally has been towards prohibition in recent years. There have, however, been notable exceptions. New York state recently legalised commercial surrogacy as its governor included legislation within the coronavirus pandemic budget. In the UK pro-surrogacy groups have lobbied for a change in the law and steered a government consultation such that the rights of women and children were far from fully considered.
Law and policy is developing and changing across the world and it is vital that the rights of women and children are always the foremost consideration. I have argued for an abolitionist approach because a regulatory harm reduction approach does not advance the aim of feminism. Industrialising patriarchal norms is not compatible with a political movement that demands the emancipation of all women. Feminism cannot succeed by sacrificing the most disenfranchised women to patriarchy, restricting its interest to making improvements to the conditions of their abuse. Surrogacy must be prohibited.
“Lauren H went to university to study biological sciences, through her undergraduate studies she became particularly interested in placental biology, immunology of pregnancy and preeclampsia and completed a number of student research projects in this area. The debate on changes to the gender recognition act sparked her interest in radical feminism and feminist theory. Lauren thoroughly enjoyed researching a topic that combines both her interests, especially as the medical risks involved in surrogacy are not widely understood’