Should Commercial Surrogacy be Permitted?

Earlier this year, the Government announced that they are preparing new laws to regulate surrogacy and the broader area of assisted human reproduction. The draft legislation will contain proposals to regulate surrogacy in Ireland for the first time, and will include an obligation for commissioning parents and surrogate mothers to give their consent and have counselling prior to any arrangement. Yet the legislation is expected to include a ban on commercial surrogacy—an arrangement where the surrogate mother receives a payment for bearing and giving birth to a child, on the condition that she eventually hands over the child, as well as the parental rights and responsibilities, to the commissioning couple.

The legislation will only permit non-commercial surrogacy (or altruistic surrogacy), where surrogates receive no financial gain—although a reimbursement of out-of-pocket costs will be permitted. In an interview with RTÉ around the same time as the announcement, the Health Minister Leo Varadkar said that commercial surrogacy “will be an offence and there will be penalties attached to it”. (Interestingly, public support for commercial surrogacy seems to be fairly high: figures from an Irish Times/Ipsos MRBI opinion poll in March show that 60 percent of respondents support it, including 72 percent of respondents under 35 that support it.)   

Surrogacy arrangements have the potential to offer many benefits: infertile couples are likely to find it desirable, as well as women who find pregnancy a serious burden or where a high level of risk to health, or even life, is a reality; it would also help support same-sex couples who wish to create a family. Regarding altruistic surrogacy arrangements, it's generally a relative or close friend who volunteers to be the surrogate mother. However some couples will struggle to find a suitable surrogate, and a ban on commercial arrangements will restrict the number of couples that will be able to avail of the service. Those who think that commercial arrangements should be banned therefore need to offer a sufficient reason why it should be so. In the rest of this post, I will consider some of the common arguments against commercial surrogacy; in a previous post, I looked at some of the more general arguments against non-commercial surrogacy.  

Commodification and Baby-selling

Some opponents say that it’s the equivalent of ‘baby-selling’ and that any practice that treats children as commodities for sale should not be allowed.  This line of reasoning is misleading, though, as it implies that children are the property of their parents. Yet as Laura Purdy points out in Reproductive Persons: Issues in Feminist Bioethics (1996), we do not usually consider children as property. And seeing that it’s not possible to sell what you do not own, it seems that commercial surrogacy is therefore not really the equivalent of baby-selling.

Other opponents might say that commercial surrogacy is rather the commodification of parenting—namely, paying for the transfer of parental rights. This may be true, but it’s very different than baby selling. Aside from this, the transfer of parental rights, in instances of commercial surrogacy, would only be authorised in a very limited sense (i.e., a transfer of parental rights from the surrogate mother to the commissioning parents); it would not, for instance, permit the surrogate mother, after the initial agreement was made, to transfer parental rights to someone else who would be willing to offer a higher price.

Still, if we contend that commercial surrogacy, in this limited sense, does in fact commodify parental rights, the question remains of what is presumed to be wrong about it.  The commercial trading of parental rights does not mean that children are more likely to be neglected or abused by commissioning parents; children born via paid surrogacy would still have the same legal protections as any other child. Unless one can come up with a reason why the commodification of parental rights would lead to harmful consequences, we probably shouldn’t worry too much about this occurrence.

Harm to prospective surrogates

Another common objection is that commercial arrangements are harmful to surrogate mothers. On the other hand, we could say there are other kinds of activities considered harmful—e.g., fire fighting or contact with dangerous machinery or toxic chemicals—that some may choose to take on, yet we usually don’t feel the need to prevent them from doing them. Similarly, we don’t prevent people from pursuing dangerous pastime activities, like mountaineering or hard-hitting sports. Arguably many of these activities are potentially a lot more risky and harmful than commercial surrogate arrangements.

As well as considering some of the potential harms, we should also consider some of the potential benefits it could offer. Some women, for example, might volunteer to be a surrogate in order to pay-off a large debt, or to put a daughter or son through college. This could be extremely beneficial for some and the good obtained may well outweigh any harm associated with the undertaking itself.

Moreover, the harm objection runs counter to the standards we now normally accept in liberal societies, as well as within most medical contexts. It rests on the notion that women should not be entitled to determine for themselves what is in their interests, and that the state should decide for them instead. Yet such an argument would be rejected by most people in other contexts, as it’s generally accepted that competent adults should be free to decide what is in their own interest.  

Opponents of commercial arrangements, in order to avoid this form of paternalism, could argue that prospective surrogates would not be competent enough to make their own decisions about what is in their best interest. Assuming that many prospective surrogates would be relatively poor, undereducated or underprivileged, it is reasonable to suppose, so the argument goes, that they would not be in a position to make an adequately informed choice on their own behalf. However, this argument doesn’t seem plausible: almost all of these women would be regarded as fully competent in other situations (e.g., in signing a tenancy agreement or consenting to other medical procedures, including non-commercial surrogacy). If they would not have the capacity to properly consent to commercial surrogate arrangements, it seems they would also not be in a position to adequately consent to other contracts or procedures either. (In any case, this type of argument would not apply to relatively well-off, educated women volunteering to be paid surrogates, as surely they would be in a fairly good position to make well informed decisions on their own behalf.)   

One could say, of course, that the issue of consent only applies to commercial surrogacy, but not to other cases. But for this argument to work, one would have to show why women could not properly consent to commercial surrogacy, but still be capable of adequately consenting in other situations.                   

Coercion

Following on from this, some argue that cases of commercial surrogacy are, due to external circumstances (such as poverty), inevitably coercive. And since coerced consent is not genuine consent, commercial arrangements should therefore be forbidden. However, it’s not clear how commissioning couples would be coercing prospective surrogates. Coercion, as the philosopher Janet Radcliffe-Richards points out, normally involves a reduction of one's options, which causes that individual to do something they do not wish to do. In Careless Thought Costs Lives (2013)—a book concerning the ethics of organ procurement—she argues that the only way to improve one’s set of circumstances is to expand their range of options; preventing arrangements like kidney selling or commercial surrogacy, on the other hand, only reduces one’s narrow, undesirable range of options even further.

Ironically, some of those who express concern about coercion the most, she points out, are also the same voices that are in favour of laws that would coerce vulnerable individuals even more: “[t]o the coercion of poverty is added the coercion of the supposed protector, who comes and takes away what the prospective sees as the best that poverty has left”. And consequentially, “[t]he supposed remedy proposed here (prohibition) just exacerbates the injustice—or at least disadvantage—that is being complained of”.  

On top of that, the coercion argument would seem to apply to instances of non-commercial surrogacy as well. One could say that a non-commercial surrogate mother could be coerced since she could feel obliged, or perhaps even pressured, to help out her friend who has a yearning desire to have her own genetically related child. In this way, the coercion argument, if accepted, would seem to rule out the permissibility of all forms of surrogacy. Not every opponent of commercial surrogacy would be willing to accept this inference though, since many would not also be prepared to oppose non-commercial surrogacy. But if one accepts the coercion argument, it seems that on the same grounds they would have to oppose non-commercial arrangements as well, or else try to come up with some reason why the issue of coercion would only be relevant to one and not the other. Alternatively, they could just abandon the coercion argument altogether.  

Exploitation

It’s sometimes argued that commercial surrogacy is exploitive, and that we should protect vulnerable people from exploitation. For example, commercial arrangements are likely to involve wealthy couples targeting badly off women—many of whom would not be willing to enter into such arrangements if they were more financially secure, or had more obtainable options. Maybe all of this is true, but does it offer a sufficient reason to ban commercial surrogacy? It doesn’t seem clear how taking it away actually improves the situation. Stephen Wilkinson put it this way in the journal Bioethics back in 2003: “[w]hat I fail to see...is how banning (or otherwise legislatively discouraging) commercial surrogacy helps much in the fight against exploitation of poor women, given that if they can’t be surrogates then they’ll just have to do some (other) job which is at least as bad or remain poor”.

In the same way, if the only food store in a local neighbourhood is selling goods at exploitatively high prices, it wouldn’t make sense to completely close it down, leaving no products at all. Protecting the neighbourhood from exploitation, in such a way, wouldn’t be very helpful. Conversely, the most effective way to reduce or even eliminate exploitation is usually to introduce legal safeguards and better pay and conditions. 

To be sure, the same argument could be applied to cases where badly off people are targeted with poorly paid or menial and unsatisfying employment—such as, unskilled factory labour or drainage cleaning. It would be inconsistent to ban or legally discourage commercial surrogacy, Wilkinson argues, whilst also allowing other practices that are arguably as (if not more) exploitative. Yet we rarely, if ever, consider banning them.

A common response to this view is to say that we should be lifting individuals out of their vulnerable situation to ensure that they have better options than volunteering to be a paid surrogate. This would certainly be a favourable move, and I doubt any reasonable person would disagree with it; but it does not support the conclusion that commercial surrogacy should remain banned. It would still be the best option available for some, at least until something better comes along. And, of course, if we arrived at a point where everyone was in a comfortable enough position not to be tempted into paid surrogacy, prohibition against it would thus be pointless as nobody would want to do it.   

Overall, it seems that many of the common arguments against commercial surrogacy—at least the ones that I have considered here—are not persuasive. They do not support the conclusion that commercial arrangements should be banned. What’s more, many of those who are in favour of banning the practice do not fully support the principles put forward against it, since they would not accept their implications in other situations. Instead of banning commercial surrogacy, perhaps we should, as Wilkinson argues in a recent paper, draw up agreements and regulations to ensure that surrogates get a fair minimum fee, that contractual terms are transparent, and that living conditions and healthcare for surrogates are appropriate.