A RESPONSE TO PURDY

A RESPONSE TO PURDY SUSAN DODDS KAREN JONES

I n ‘Surrogate Motherhood: Exploitation or Empowerment?’, Laura Purdy is primarily concerned with dicussing whether there is something about contracts for surrogate motherhood which makes the practice necessarily wrong. More specifically, in Purdy’s consequentialist framework, the question is whether contracts for surrogate motherhood are ‘invariably accompanied’ by consequences which are ‘unavoidable’ and ‘overridingly bad’. T h e question of whether there is something necessarily wrong about surrogacy contracts is not one we have attempted to answer in ‘Surrogacy and Autonomy’. Strategically, centering on this question is dangerous in that once it is established that there is nothing necessarily wrong with surrogate motherhood contracts, it is easy to overlook the real, although contingent, features of our contemporary society (and of the realistic alternatives for the foreseeable future) that make surrogate motherhood contracts morally wrong. By focusing on what is necessarily wrong, we risk being falsely reassured as to the permissibility of surrogacy in this world. Most of the concerns raised by feminists regarding surrogacy are specifically about surrogacy in exchange for money in a classist, patriarchical society. In showing that there is nothing about the practice which makes i t necessarily wrong, Purdy allows these feminist concerns to be marginalized, relegated to footnotes in the debate (e.g. Purdy’s footnote 26). T h e public I V F debate is presently guilty of similar omissions. Of equal importance are the theoretical reasons for supposing that the question of whether the practice of surrogacy is necessarily wrong is the wrong question to ask, especially given the consequentialist framework Purdy uses to determine what it is for an act or practice to be necessarily wrong. Purdy explains acts which are necessarily wrong in terms of invariably accompanying features which lead to unavoidable and overridingly bad consequences, but it is not obvious that a consequentialkt should even

find tlic. question of thr neussciri!v wrong features of surrogac)answerable. If we a r e agnostic about the nature of men arid numen-as we have good reason to be-then we cannot now know Lvhether the good conseqiierices of having surrogacy in the ideal, non-sexist world would outwvigh the bad. For instance, we cannot now tell liow a bvoman would feel about parting with a child to which she had given birth, nor can L v e claim to k n w v \\.hethcr the desire to have children to \\.horn one is geneticall!, related \~.ouldcontinue in a ferninist utopia. LVc shall see later that Purdy considers some rather peculiar features as bcin,y the essential features of surrogacy. I t is riot clear, Iiowe\.er, that these are the main features that should he used by a consequentialist in assessing the rightness o r wrongness of' surrogacy in an ideal world. First. i t is worthwhile bringing out the connection between Purdy's focus on necessary features of surrogacy. her definition of what i t is to be a necessarily \\'rang practice and the indi\idualistic approach she takes to the issue. It is the immediate players in a surrogacy contract that receive most of Purdy's attention. For example, in considering the effects of' surrogate mothering on children, she considers only the effects o n children M.ho are the result of a surrogacy contract and on the other childen of the surrogate mother. \Vhether the practice of surrogacy might foster attitudes detrimental to children as a group is not considered. Presumably this is because these effects will depend on the broader social circumstances in which surrogacy occurs, and thus are not nucessarr consequenct:s of those contracts. 'I'he issue is. however, vitally relevant to the moral assessment of surrogacl- contracts, yet i t is omitted from discussion, even when l'urdy turns her attention to circumstantial consequences afrecting the morality of surrogacy. Likewise, Purdy overlooks the way the practice of contracted pregnancy might affect attitudes to women as a group, rattier than particular \\wrnen who become surrogate mothers. Again, this is because the possible harms are not necessary features ofsurrogate motherhood contracts. H e r discussion of the harms which might result from the institution of surrogacy is too individualistic in,scope and this owes directly to her focus on the question of necessarily bad consequences. Moreover, Purdy's discussion of the possible harms of surrogacy is too narrow. The risks Purdy identifies for the woman who contracts to become a surrogate mother are physical risks. These a r e important; but of greater importance. because not found in ordinary pregnancy, is the psychological harm that can result from being forced to give u p a child one gave birth to when one \\.anted t o raise that child.

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Let us look more closely at what Purdy offers as possible necessary features of contracted pregnancy which could make the practice necessarily wrong. ‘These are four: surrogacy might necessarily yield bad consequences because it transfers the burden a nd risk of pregnancy from one person to another; because i t separates sex an d reproduction; because it separates reproduction a nd childrearing, or because it involves baby-selling. Firstly, transferring the burden of pregnancy. Is this wrong? Purdy argues that as i t is routine to transfer burdens a n d risks, there can be nothing particularly wrong in the way surrogacy does so. Anyone who has had any services performed by another does this, likewise anyone who buys goods. ‘I’here are a number of things to be said here. T h e rightness or otherwise of transferring burdens and risks depends on more features than Purdy takes into account. It depends on whether there was a n obligation to undertake the risks on the part of the person transferring them to someone else. This could arguably be the case in, for instance, ju r y duty of military service, where being a citizen, an d reaping the benefits which accrue to citizens, creates an obligation to take on the risks associated with jury duty or military service. However, women can hardly be said to have a n obligation to have children, so there cannot be this pre-existing obligation not to transfer the burden. T h e rightness of transferring burdens a n d risks depends also on the extent of the risk involved an d on the motivation of the person undertaking the risk. Purdy dismisses the motivation of a surrogate mother as being irrelevant, arguing that we consider i t irrelevant for all other occupations. We have argued, however that motivation can be important in determining the permissibility of paternalism based on consideration of the agent’s dispositional autonomy. Certainly, i t would be paternafistzc to interfere with a woman’s choice to become a surrogate mother, but this does not mean that i t must be ulrong to d o so. Both in her discussion of whether surrogacy contracts have necessary bad consequences, and in her decision of whether such contracts might be wrong in certain circumstances, Purdy seems to assume that if i t can be shown that prohibiting women from undertaking certain risks is paternalistic, the presence of paternalism is sufficient to show that the prohibition is morally wrong. However, especially for consequentialists, argument is needed to establish the wrongness of paternalism in the circumstances in question, given the likely consequences. Without this argument, the observation that an interference is paternalistic has no more than emotive force. Purdy contents herself with the observation that, for example, we d o not forbid riding motorcycles on the

grounds that riders are subject to physical risks of’ accidcnt and injury. W hat she fails to notice, however, is that i n many places i t is considered acceptable to prohibit riding motorcycles without crash helmets, for paternalistic reasons. T h is shows that i t requires argument to move from the fact o f a policy being paternalistic to the wrongness of that policy. Purdy gives no such argument. I t is worthwhile asking whether surrogacy contracts are really about transferring burdens an d risks between women. I t seems that they could be about this. For example, a woman whose heart condition makes pregnancy very risky to her life could be helped by her healthy, fertile sister to have a baby. However, in contracted surrogacy for remuneration, i t appears that something else is happening. T h e woman who will become the social mother of the child born as result of a surrogacy contract seems a minor player in the surrogacy d r a m a (at least a s surrogacy is now practised). She is not required to sign the original contract. T h e contract is entered into by the commissioning father, the surrogate mother, and the surrogate’s husband if she has one (see Kentucky contract, K. Brophy, Journal of Family LULJ;vol. 20, 1 9 8 1 4 2 , pp. 263-91). Surrogacy as i t is actually practised seems to be morc about enabling men to have children genetically related to themselves, than it is about women agreeing to transfer burdens or risks, or making the impossible possible. ( W e note with concern William Stern’s stress on genetic connection a n d blood lines in the ‘Baby kl’ case). Purdy also examines whether surrogacy is necessarily wrong because i t separates sex an d reproduction a n d childrearing. Surrogacy involves the separation of sex a n d reproduction, but so d o many other things, e.g. contraception, homosexuality, prostitution. Purdy’s dismissal of the relevance of this objection to surrogacy would not satisfy those traditionalists who object to the separation of sex and reproduction, a n d to the rest of us the issue seems curiously irrelevant. Surrogacy is about much more than separating sex and reproduction, an d it is here that the real moral objections lie (e.g. issues o f commodification a n d exploitation of women arid children, of harms a n d risks? autonomy arid paternalism). Purdy rightly points out that there are problems with arguments against separating childbearing a n d childrearing. Such arguments tend to be biologically reductionist. However, again, the issue is not whether this is wrong, but whether i t is wrong to make a woman give u p her childbearing rights and responsibilities when she does not want to. ‘The question is one of autonomy an d harm, not whether, considered i n a vacuum, i t is ever wrong to separate child bearing a n d childrearing. T h e

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parallel here is not, as l‘urdy assumes, with adoption, but with acrimonious custody disputes. T h e last possibility Purdy considers for the necessary wrongness of surrogacy contracts is that the practice entails baby-selling. Her argument that surrogate mothers must be selling their services rather than babies on the grounds that ‘we d o not consider children property . . . (t)herefore as we cannot sell what we do not own, we cannot be selling babies’, is seriously flawed. First, there is a conceptual question relating to thc normative sense of property being employed here: we are to say that the slave trader is not really selling persons because we d o not consider persons property? Rather we should say that persons ought not be treated as potentially the property of others, a n d thus slave trading ought to be prohibited (and not merely on the grounds that the institution of slavery tend to treat persons badly). Secondly, there is the problem of her j u m p from the idea that children are not considered property to the idea that we cannot sell what \ve do not own. We may be morally bound to abstain from selling what we d o not own, but there is no conceptual problem with my selling the car I stole from you. Ct’e d o not believe that surrogacy necessarily entails baby-selling, however Purdy ought to have offered a better argument for the position. Perhaps Purdy would say that these arguments are unfair. She suggests that some changes might be necessary in the present contracts. However, she does not really tell us what sorts of changes are needed, and this is a dangerous omission. Even if; as she suggests, surrogacy contracts are altered to allow for a cooling-ofr period, custody disputes could, presumably, result. Is Purdy suggesting that these features of surrogacy be changed, or not? She does not tell us, yet she leaves us with the vague hope that the existence of the practice of paying women to bear children might empower all women, because i t then would force reproductive labour to be recognized as productive labour. \iVe have some evidence that this hope is probably just wishful thinking (other areas of traditionally unpaid ‘women’s work’childcare, domestic labour-have become professionalized with. a t best, marginal effects on the recognition of those who perform the tasks). Purdy’s hope is, nonetheless, too vague to even begin to assess until Purdy tells us precisely what she means by contracts for surrogate motherhood, given that she does not mean surrogacy as it is presently practised. L a Trobe UniversiQ Cornell tiniversicy .