Surrogacy as a Moral Permissibility

Surrogacy as a moral permissibility In contemporary ethics, many questions regarding the beginnings of life are still heavily debated. Along with the advances in biotechnology, and with the presentation of more precise empirical evidence, the discussion has changed in its nature. These new advances have given rise to new ethical questions regarding, for example, abortion and surrogacy. In this article I will be discussing surrogacy, and I will question on what basis, if on any, it can be partially or completely morally justified. What I mean by this is whether it is morally justified under certain circumstances i.e - partially, or under all or none (completely). This will of course depend on whether the issue is discussed from either a consequentialist framework or a deontological one. I will in this article be arguing from both of these points of view. In a consequentialist framework, we will be focusing on the repercussions for all parties involved (mother, child, adoptive parents) when a surrogacy is taking place. A classic example of consequentialism is utilitarianism, where the morally right action is the one that leads to the greatest happiness for the greatest amount of people. When I will be arguing from a deontological perspective, I will be looking at the action in of itself, removed from the potential consequences. I will be looking into whether the action of surrogacy is inherently wrong. Some argue that the consequentialist framework is the most appropriate given the rapid advances in empirical evidence, however I will argue that questioning whether surrogacy is inherently wrong, is just as important, and could perhaps give us guidance to problems we may face in the future.

Surrogacy in Practice There are currently two forms of surrogacy, along with two kinds of motives as driving forces. Firstly there is what, now perhaps misleadingly, is called traditional surrogacy. It can seem misleading because it is currently not considered the traditional form of surrogacy, rather it is quite rare. In this form of surrogacy, the surrogate mother donates both her womb and her egg. This means that the baby she is preparing to give away contains 50% of her DNA. She is both the surrogate and the biological mother. In practice the sperm is donated by the adoptive father, and the significant other will become the adoptive mother/father, but not their biological parent. The second form of surrogacy is gestational surrogacy. Here, a woman is inseminated with an already fertilized egg, that she will bring to term and give up on delivery. This surrogate mother is not genetically connected to the child. Moreover, surrogacy can be done for either altruistic or economic purposes, but according to studies the realistic account is that it is done for either altruistic purposes or ‘altruistic and economic’ purposes.1 But this ​“Only 1 percent of applicants to surrogate agencies would become surrogate mothers for money alone; the others have emotional ​ as well as financial reasons for applying.” - Anderson, E. - ‘Is Women’s Labor a Commodity? p. 260 1

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again will depend on the form of surrogacy. Today, gestational surrogacy is the most common, ranging from altruistic to economic purposes, depending on life situations and the country one holds residency in. I would like to focus my discussion on gestational surrogacy, given that it is the most practiced form of surrogacy. I also believe that gestational surrogacy is more interesting to discuss, considering it is only possible through bio-medical intervention. Traditional surrogacy could technically be arranged privately without any need of medical intervention or assistance. I will be looking at two articles with differing positions on the surrogacy debate. I must also make a point of noting that one of the articles was written with ​traditional surrogacy in mind. Understanding this, it is important that we apply the principle of charity, and understand that many of the arguments may not be up to par simply because of this differentiation, rather than the arguments being bad in and of themselves. There are many arguments against the moral permissibility of surrogacy, but in this article I will limit myself to discuss three main arguments. The first argument takes as a point of departure the supposition that women’s labor should not be considered a commodity. This claim will lead me to the second argument against the permissibility of surrogacy, namely that surrogacy is inherently similar to prostitution. The inherent similarity of these two occupations mean that many of the things that we find inherently impermissible about prostitution are also inherent in gestational surrogacy. My third and final argument builds on the idea that surrogacy is the same as baby-selling. If this turns out to be the case, one will have to discuss if it is inherently wrong to sell a child contrasted to the realistic consequences of doing so.

The Surrogate

In her article ‘womens labor a commodity?’ Anderson points to many reasons why we should understand that the practice of surrogacy is disrespectful to a womans autonomy and that it is using a person as a means to an end. She argues a lot in the basis of traditional surrogacy, but I will here be focusing on the section of the article that argues regardless of the forms of surrogacy. Anderson claims that even if the practice of surrogacy did not involve commerce in children, something she claims it does in traditional surrogacy, it would still nonetheless be a corrupt practice. “Commercial surrogacy attempts to transform what is specifically women’s labor - the work of bringing forth children into the world - into a commodity” Anderson presents three claims that argue for women's labor to not be a commodity. These claims are backed up by empirical evidence, and are both consequentialist and deontological in their structure. By applying economic norms to commercial surrogacy, we violate women’s claims to respect. When we apply these commercial norms to pregnancy. we reduce the

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surrogate mother to objects of mere use. This robs them of their status as people worthy of respect and consideration. This is done in three specific ways: 1. firstly, for a successful surrogacy to take place, it is necessary for the surrogate to not form an emotional relationship with the child. This is so the transition of child to adoptive parents will remain unproblematic. These norms contribute to the woman experiencing her labor as alienating. Anderson claims that forcing a surrogate mother to not feel emotionally attached to the child she carries will alienate her from her labor. 2. The second way in which economic norms violate a woman’s claims to respect is by manipulation. According to Anderson, the norms of the market are degrading her as an individual, because of the manipulation and denying of legitimacy to the emotions and perspective a surrogate mother gains during her pregnancy. 3. The third way surrogacy violates a woman's claims to respect is through taking advantage of a woman's altruistic motivations. Anderson claims that the surrogate mother may well, and quite often do, have non-commercial motivations for taking on a surrogacy, but because of the commercial interests involved in commercial surrogacy, the woman is offered only what the rules of commerce demand in return. Commercial surrogacy is seemingly incoherent, given that we let the rules of the market determine one parties involvement, and altruistic purposes govern the surrogates behaviour. Anderson argues that the fact that these three problems arise, point to the fact that whether we truly regard commercial surrogacy to be a commodity fit for the market, in practice it would seem it doesn’t belong there. Even though we may seemingly regard it as a commodity, in truth we do not do so properly. We tend to disregard the amount of emotion involved in this line of work. According to Anderson, it is a well known fact that it is highly encouraged for women to form an emotional attachment to her child during practice. This attitude is shown through early ultrasounds offered at three weeks. These ultrasounds take place to check the heartbeat of the child, but also they take place to encourage the bonding process between mother and child. Therefore, during a surrogacy we disencourage the surrogate mother to feel the same emotions that we work hard to encourage with other surrogate mothers. Regarding the first claim, Anderson expands on her argument by stating that the contract laid down in surrogacy replaces a norm of parenthood. The surrogate mother is required to not create a loving connection to the child, and that it follows the norms of commercial production that the producer of a product should not form any emotional attachment to said product. I agree with Anderson that asking a woman to override and ignore quite natural and encourage instincts and emotions in this fashion is asking a lot. Perhaps it is demanding too much of the surrogate mother. However, if the woman is made clear of the risks before the insemination, she should stand free to decide for herself what she desires. A surrogate mother that has mothered her own children previously may be in a stronger position to determine their emotional connections, and whether they feel they can or desire to override them in such a manor.

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The second and third claim are in my opinion much more problematic. They are also connected on the same basis: There seems to be a certain degree of manipulation inherent in the agreement of surrogacy. Anderson mentions that it is in fact rather rare that women engage in surrogacy purely on economic incentives. Actually, only 1% of prospective surrogates stated that they would take the job solely on financial reward. Anderson argues that even though commercial surrogacy ideally should purely economic norms governing, this is not the case even when it comes to the lawyers and prospective adoptive parents. “When applicants question some of the terms of the contract, the broker sometimes intimidates them by questioning their character and morality: if they were really generous and loving, they would not be so solicitous about their own interests.” 2 This is of course not something ​inherent to the process of surrogacy, however it does speak to a consequentialist problem if it is in fact as widespread as Anderson claims. She claims commercial surrogacy is a degrading practice because the other parties than the surrogate have an interest in suppressing and manipulating and trivializing her emotions and thoughts. I agree with Anderson that there is an inherent problematic aspect of commercial surrogacy, where the surrogate mother holds all the power. This immense power she holds over the child and the genetic parents must be balanced out for there to remain any sensation of safety for the other parties involved. This is usually done through manipulation, threats and bribery. So long as we do not find a way in which we can eliminate this fear from the genetic parents side, which I find to be quite difficult to accomplish - without the use of force, bribery or threats, womens labor as a commodity will always be morally impermissible.

Is Surrogacy the same as Prostitution?

The second main claim that I would like to discuss is whether there are similarities between problematic aspects of surrogacy and problematic aspects of prostitution. These similarities can be either circumstantial or inherent to the job. It is important to note here that I am focusing on gestational surrogacy and its proposed similarity to prostitution. In her article ​‘Surrogate Mothering: Exploitation or Empowerment?’, Purdy discusses this claim. She wishes to keep the discussion within a consequentialist framework, so discusses only how the jobs seem similar in a practical way. I will begin by presenting her arguments for there not being any necessary circumstantial correlation between the two. I will later get back to the idea that they are inherently similar. The argument is made in response to the claim that prostitution and surrogacy both sever the link between reproduction and sex. Prostitution is sex without reproduction, surrogacy is reproduction without sex. She claims that we shouldn’t have too many objections to this, given that we have already severed this 2

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Anderson, E. - ‘Is Women’s Labor a Commodity?’ p. 260.

link without it being considered morally objectionable. This link is severed by for example contraceptives. She claims that the argument of equating prostitution and surrogacy is purely emotional, and driven by guilt-by-association. She moves on to state that: “Perhaps the dread feature contracted pregnancy shares with prostitution is that it is a lazy persons way of exploiting their own ‘natural resources’, But I suspect that this idea reveals a touchingly naive view of what it takes to be a successful prostitute, not to mention the effort involved in running an optimum pregnancy.3 This statement would perhaps be more agreeable had Purdy exchanged the word ‘​lazy’ for ‘​hopeless’. I would argue that there is in fact a great deal of empirical evidence, as well as inherent aspects of both occupations to claim that the parallel can justifiably be drawn. In agreement to what Purdy says, it is in a sense an exploitation of one’s ‘natural resources’. These women have jobs that have something to do with what many, perhaps most, women already do, but now instead for financial reasons. However, as I pointed out earlier, empirical evidence shows that most women have different incentives for taking these occupations, laziness not being close to being the most prominent one. Because of the nature of the work, there is always, either more or less, an element of manipulation, where a woman usually has to dismiss her natural instincts and desires in favour of economic rewards. Prostitution and surrogacy also have the common denominator of reducing women to a vessel, either to be filled by another person, or with a child. Both women are in the occupation of renting out their bodies (their identity, personality, hopes and dreams being entirely irrelevant), only differing in the amount of time in which they are up for lease. These are inherent to the nature of the work, almost entirely regardless of where and how these occupations are being completed. There are also significant consequentialist problems. By this I mean, that the problems that arise together with these practices do not necessarily have to accompany the occupations, but the way in which things are currently, these problems have not been solved. Firstly, studies show4 that many women in both ‘occupations’ experience psychological trauma at a level higher than most occupations. Women in these situations are often vulnerable. They are exposed to manipulation and exploitations of the other, and sometimes even third parties. By this I mean others than those directly tied to the child, being the surrogate mother and genetic parents. An example of this would be a lawyer in charge of overseeing the surrogacy, they have a vested interest, but they have no emotional ties to the child. This could also be agencies that arrange surrogacies. There are reports that european clients hire surrogate mothers in India, here the women are hired by a man to get inseminated and bring the baby to term.5 The 3 4

Purdy, L. - ​‘Surrogate Mothering: Empowerment of Exploitation?’ p. 24 ​“70-95 percent of prostitutes experience physical assault during work. 60-75 percent of

prostitutes are raped while working as a prostitute. 95 percent of prostitutes experience sexual harassment that in other industries would result in legal action, and women who are prostitutes are raped 8-10 each year on average.” http://www.prostitutionresearch.com/Prostitution%20Quick%20Facts%2012-21-12.pdf 28.11.2016 kl: 16:00 5

http://www.aljazeera.com/news/asia/2014/03/indian-surrogate-mothers-suffer-exploitation-20143276727 538166.html​ 28.11.2016, kl 16.25

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man hiring them, gives them a place to stay, and arranges with clients, and operates much in the same way as would a pimp for a prostitute. Women who work as prostitutes are at higher risk of experiencing violence, rape and even death. Women who work as surrogates risk their lives (even more so in poorer countries) to bring to term a child that they are not even permitted to have a maternal connection to. Both occupations often lead women to feel alienated from both their bodies and their work. Purdy disagrees with the claim that surrogacy as an occupation is alienating. The claim that women who take on surrogacy are interchangeable and robbed of their chance to express their individuality, does not have firm grounding according to Purdy. She argues that the fact that pregnancy in itself does not demand a great deal of conscious effort, still does not tell us anything about its moral status. She claims a great deal of jobs demand very little conscious effort, but are not regarded as valueless. I disagree with Purdy here, a lot simply because she doesn’t list any examples. Few - if any other jobs - demand quite as much physically, and emotionally, without any conscious effort, without such a small amount of compensation. Also, Purdy claims that women in fact do have a choice of how and who’s child they harbour to term. However, the way in which surrogacy is practiced today, it would seem that this is no longer true. Women do, in third world countries, have much less say in how and who’s child they will be bringing to term. It is important again to note that Purdy is here arguing with traditional surrogacy in mind. This means that the argument could have been relevant in the time it was formulated, but no longer holds the same value. I do think that there perhaps is one significant difference between the occupations, from the feminist viewpoint. The fact that, as far as technology has come and probably will be at for quite some time, only a woman can be a surrogate. It is inherent in the job that it can only be done, and only be experienced by a woman. Both men and women can be prostitutes, even though there is a bigger, and perhaps more dangerous market for female prostitutes, it is not inherently a female job. So consequently it may be morally exploitative on behalf of women, but of the two only surrogacy can be inherently exploitative only towards women. In comparison between the two, I would argue that there are many similarities. 1. 2. 3. 4.

The renting out of ones bodily functions alienation interchangeability, lack of individual expression. Manipulation/ exploitation

As I have mentioned, both these occupations regard renting out ones body for the purpose of another. The main variation is in the nature of time one is renting out the body, and the intent of the loan. Individuals that also work as guinea pigs for for instance medical companies, also in a sense rent out their bodies. Apart from this, it is hard to imagine any other occupations that are purely physical renting of bodies, which demand no cognitive effort. As well as this, the women in prostitution and surrogacy are reduced to vessels, and must be submissive in favour of another person, that being a client or a child. 6

The alienation is an important similarity that hinges on the previous one. Even though Purdy disagrees, I firmly believe that in the process of reducing the women to a vessel, she is not only alienated from her work, but she is also alienated from her body. In loaning out her bodily functions to another, in the period of the loaning, her body does not belong to her anymore. The third similarity is with the interchangeability argument. It is clear that, given that there is no cognitive abilities inherently necessary in these occupations, I believe that the belief that one is interchangeable is not only understandable, but also correct. Any woman with these functions in order, can take on the job, regardless of other qualifications. Lastly, there remains a similarity in the amount of manipulation and exploitation we find in both occupations. Manipulation is not inherent to the occupations, but the way in which they are practiced today, it surrounds the circumstances. Many young women in financial despair, or with bleak outlooks for the future, find themselves drawn to these occupations. This factor should not be overlooked when we are considering their moral permissibility. Purdy disagrees with the claim that ‘no parent wishes for their child to end up in these occupations’ has any moral relevance to it. I disagree, one must question why the parents believe this. I would claim it is namely because of the aforementioned similarities, and also problems with both occupations. Both occupations have inherently exploitative aspects to them, and therefore are morally problematic. Prostitution, though not only an occupation for women, contains many of the same inherent ideas (the leasing of ones ownership over ones body), and share many of the same probable consequences. In my opinion, this suffices to prove that there is a link between the two occupations and that they are problematic for many of the same reasons.

Is Surrogacy essentially Baby-selling?

The third argument in the surrogacy debate I would like to discuss, is the claim that surrogacy is actually just ‘baby-selling’. Is the prospect of taking money for harbouring another person’s child to term in a sense the same as selling the child? If we should conclude that surrogacy in fact is baby-selling, this would point to inherent deontologically problematic aspects of surrogacy. This is based on the presumption that selling another human being is wrong. If we agree that human beings are not property to be owned, then we must also believe that treating them in such a manner, such as by selling them, is not a good thing. The most convincing argument that argues in favour of the claim that surrogacy is in fact selling babies is as follows: In commercial surrogacy, women only receive payment upon the delivery of a child. This means that should the women be as unfortunate as to suffer a miscarriage, she will have lost not only the child, but the entirety of her economic reward. 7

This is regardless of when she should lose the child. The implication of this is that her job is in the delivering of a healthy baby, not in her efforts as a surrogate. In all fairness, there are other occupations where it is only upon the completion of the task one receives payment, and should the task not be completed, then no payment is to be received. Yet, in almost all cases of a miscarriage, the woman is never herself at fault. A miscarriage can occur in spite of a woman's best efforts to stay healthy and have a good pregnancy. Therefore, the success of a surrogacy is just as much up to chance as to actual personal effort. This again links to the argument of alienation. Purdy also presents an argument in which she states that human beings are not and cannot be regarded as property. Therefore, selling a person would not be possible. This may appear as logical, but it is still quite problematic. It is true that we do not consider children property and that this is the reason for the moral problems of baby-selling in the first place. However, it is perfectly possible to sell something one does not, or cannot own. Selling something is an exchange of money or other rewards for a service or a product, this product can for instance be stolen, or a service can be from a third party (for instance with pimps). Countries like the USA also have a dark history in which people have sold other people as slaves. One could claim that they never rightfully had any ownership over the slaves, but one cannot argue that the slaves were not in fact sold, and were not ​in practice owned. 6 Purdy argues against the slavery injection by pointing out that whether we regard surrogacy as baby-selling or not, the ‘buyer’ in this case is not permitted to do what it pleases with the child. The adoptive parents are still placed under the same restrictions as any other parent, and are expected to give the child a safe and happy childhood. Again Purdy is arguing on consequentialist grounds, but she still has no sufficient protest to surrogacy being inherently baby-selling. Of course, this is not a problem for Purdy, given that she wishes to keep the discussion within the framework of consequentialism, and she believes she has justified her point of view here. However, if we wish, as I do, to take into account both a deontological account as well as a consequentialist account, Purdy does not give a sufficient defense of surrogacy as a morally permitted occupation. Since I am here discussing gestational surrogacy, it is possible to argue that both the egg and the sperm are separate from the surrogate, and are therefore already the adoptive parents property. They are simply paying her for her services as a ‘host’, or a ‘storage room’. If one is to argue this, one should also argue that there need be (for example) monthly payments for the time in which a woman is leasing her body, all regardless of what happens with the child in the end. So long as it is outside of her control of course. If this were the case, one could surely argue that surrogacy in fact isn’t baby selling. When discussing traditional surrogacy however, we find that there is little way around the fact that the babies are in all probability being sold, given that the woman donates the egg the child consists of in the first place.

​Here I should mention that another important question that arises within this context is the question of ​whom a child brought to term by surrogacy belongs. However, I won’t go further into this question in this article. 6

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Conclusions

Gestational Surrogacy has here been presented as potentially morally impermissible given different grounds of justification. Upon discussion of whether taking advantage of women’s labor leads to unfortunate consequences, the conclusion seems to be clear. Backed by empirical evidence, surrogates are exposed to vast amounts of manipulation, forced to waive their natural instincts, and in many cases suffer psychological harm. The way in which surrogacy is practiced today, leads women in a weaker position than they were before, regardless of financial gain. Inherently, however, is not quite as clear. The writer of the article provides some examples of how we can open the door for morally permissible surrogacy, but in my opinion these options are either futile or contradictory. For instance, it would be against all parties involved interests to permit a surrogate to keep a child were she to change her mind - the repercussions would be devastating. And, like I mentioned, deontologically it would be in conflict with, for example Kant’s categorical imperative. On the question whether there are similarities in prostitution and surrogacy, I disagree with Purdy. Both on a consequentialist and a deontological viewpoint, there are huge overlaps. It is possible to argue that there are different ‘needs’ being catered to in the different occupations, however regardless of the intentions and purposes of the jobs, they still have morally problematic aspects to them that simply can’t be overlooked. Taking the financial aspect out of the mix may perhaps help in weakening the similarity between the two, but we still encounter problems of the emotionally devastating effect it can have on the surrogate mothers either way. And even for altruistic purposes, the surrogate is still exposed to a certain degree of manipulation. The final argument, the one of baby-selling is also very important. In many ways this argument is more useful in giving attention to the question of whom a surrogate child truly belongs, and the problematic aspects of financial rewards from surrogacy. If the surrogate mother were to receive payment regardless of what were to happen to the child ( of course with enough regulations as to make sure the surrogate mother is not reckless whilst pregnant), we would avoid many of the morally problematic aspects of surrogacy. Another possible solution would be to limit the amount of exportation. It is detrimental to gestational surrogacy that couples from well developed, richer countries, can export surrogacy to third world countries without proper information and access to how the surrogate is being treated in this period of time. Before writing this article, I considered surrogacy to be a wonderful thing, that opens up for many opportunities for parents who could not conceive. However, in working through the arguments I must conclude that, both from a consequentialist and deontological point of view it is, if not entirely morally impermissible, at least morally problematic. Perhaps if extremely strictly regulated we would avoid many of the problems I have mentioned above, but given it’s inherent nature as an occupation, it will always be morally problematic. 9

Sources: - Hugh LaFollette (2014) “Ethics in Practice: An Anthology” (Fourth Edition) John Wiley & Sons, Inc. Published 2014 by John Wiley & Sons, Inc. Pages 255 - 264. - Purdy, Laura M. - “Surrogate Mothering: Explotation or Empowerment”, published in the book “Bioethics, Volume 3, Issue 1” (1989) pages 18 - 34. - Aljazeera.com: http://www.aljazeera.com/news/asia/2014/03/indian-surrogate-mothers-suff er-exploitation-20143276727538166.html​ Accessed: 28.11.2016, kl 16.25 - Prostitutionresearch.com: http://www.prostitutionresearch.com/Prostitution%20Quick%20Facts%201221-12.pdf​ Accessed: 28.11.2016 kl: 16:00

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