Sunday, October 18, 2015

The Ethics of Commercial Surrogacy: Three Standard Objections

Debra Satz’s book Why some things should not be for sale is an interesting take on the commodification debate. There are some — let’s call them economic imperialists — who think that we should have markets in virtually everything. Satz’s book is an extended debate with the imperialist view. Satz argues that some markets are morally noxious, particularly when they are likely to prey upon weak and vulnerable agents, and result in great harms to both individuals and society at large.

One such morally noxious market is, in her mind, the commercial surrogacy market. She argues that we should not endorse commercial surrogacy because the market for ‘contract pregnancies’ (her preferred term) is likely to reinforce and worsen systematic gender inequalities. In defending this view, Satz takes issue with a number of standard objections to commercial surrogacy.

In this post, I want to briefly review her analysis of these standard objections (I’ll cover her inequality argument at a later stage). There are three main classes of them. The first claims that there is something special about the nature of reproductive labour that renders it off-limits from commercialisation. The second claims that commercialisation of reproductive labour corrupts the special bonds of motherhood. The third claims that commercial surrogacy is bad for children. Satz thinks that none of these arguments is successful. Let’s see why.

1. Is there something special about reproductive labour?
It’s important to define our terms. ‘Reproductive labour’, in the present context, is to be understood as the surrogate mother allowing commissioning parent(s) to use her body for the purposes of gestating a foetus and giving birth. In some cases, that reproductive labour includes contribution of genetic material to the foetus, but that is not essential since in many contemporary surrogacy arrangements the surrogate mother is not the genetic mother.

Many authors have objected to the commodification of reproductive labour by arguing that there is something special about that kind of labour that means it should not be commodified. We can call this the essentialist thesis:

Essentialist Thesis: ‘[H]olds that reproductive labor is by its nature something that should not be bought and sold’ (Satz 2010, 117)

To say that there is something special about reproductive labour seems like a truism. Of course there is. What is at issue is whether there is something about this specialness that renders it inappropriate to buy and sell. Satz identifies a range of claims made about the specialness of reproductive labour that might support such a view (note: as best I can tell, she provides no sources for these claims - so I’m not sure who, if anyone, has actually tried to defend the essentialist thesis on these grounds):

  • (1) Reproductive labour is special because (a) it involves a genetic relationship between the worker and her work product; (b) has many involuntary components (e.g. ovulation, conception, gestation and birth all occur without conscious direction); c) involves a long-term (24/7) commitment; and (d) involves many significant restrictions of a woman’s behaviour during pregnancy.

This provides the first premise in an argument against commercial surrogacy. The argument can be rounded out as follows:

  • (2) Any form of labour that includes some or all of features (a)-(d) ought not to be bought and sold.
  • (3) Therefore, reproductive labour ought not to be bought and sold.

Is this argument any good? There are two major problems. First, although most of the claims made in premise (1) are true (in the sense that they describe a feature or property of pregnancy), not all of them are. In particular, feature (a) is not true. As pointed out earlier, in many modern-day surrogacy arrangements, the surrogate mother is not the genetic mother. She is, however, the gestational and birth mother, and one could argue that there is something else about these biological relationships that means surrogacy ought not to be commercialised, but we will consider that possibility when looking at the ‘bonds of motherhood’-argument, below.

  • (4) Not all of the claimed features are true of contract pregnancy: in particular, in ‘gestational surrogacy’ there is no genetic link (beyond chimerism) with the surrogate.

The other problem is that premise (2) seems to be false, at least if we consider other forms of labour that we find it perfectly acceptable to buy and sell. For example, many people think it is acceptable for men to sell sperm to fertility clinics, despite the fact that this may result in a genetic relationship between the man and the ultimate ‘work product’. Similarly, (b) is in fact true of most professions: there are many involuntary aspects to many work processes. The long-term commitment feature is also common to many jobs. Satz gives the example of military service and book contracts. These are also contracts that one cannot simply and easily ‘quit’. Finally, many military service contracts and athletic forms of labour involve invasions into and restrictions of behaviour during the period of employment. In fact, some of the physical restrictions placed on professional athletes, particularly in relation to drug-testing, are arguably more invasive (and more long-term) than restrictions on the surrogate.

  • (5) Many forms of labour include features (a)-(d) and yet we deem it perfectly acceptable for them to be bought and sold (e.g. sperm donation, military service contracts, athletic labour).

The diagram below maps out the argument and the objections.

Are there better defences of the essentialist thesis? Satz looks at one more. It comes from the work of leading feminist theorist Carole Pateman. Pateman argues that there is something about reproductive labour that directly involves the woman’s sense of self. And this integration between the sense of self and the work product renders it off-limits from commercialisation. Pateman develops this argument by way of analogy with prostitution. Very roughly, she argues that since prostitution deeply involves the woman’s sense of self, surrogacy is even more likely to do so, and this means the latter is at least as objectionable as the former. Here’s what she has to say about prostitution:

Womanhood, too, is confirmed in sexual activity, and when a prostitute contracts out use of her body she is thus selling herself in a very real sense. Women’s selves are involved in prostitution in a different manner from the involvement of the self in other occupations. Workers of all kinds may be more or less “bound up in their work”, but the integral connection between sexuality and sense of self means that, for self-protection, a prostitute must distance herself from her sexual use. 
(Pateman 1988, 207 - quoted in Satz 2010, 119)

Pateman’s point seems to be this: in order to buy and sell labour on a market, you must be able to alienate yourself from your work product. But this can be damaging when your sense of self is deeply integrated with your work product. Women’s sexuality (which includes sexual activity and reproductive labour) is deeply integrated with a their sense of self. So if they buy and sell their sexuality, they must alienate themselves from a integral part of themselves. This, presumably, results in great harm to the self and so should not be permitted. To put this into more formal terms:

  • (6) If commodification of a particular type of labour requires you to be alienated from something that is deeply integral to your sense of self, then that type of labour ought not to be commodified.
  • (7) Commodification of reproductive labour requires women to be alienated from something that is deeply integral to their sense of self.
  • (8) Therefore, reproductive labour ought not to be commodified.

Is this argument any good? It is abstract, somewhat metaphysical and empirically dubious. As Satz points out, Pateman provides no real argument in favour of (7), she just seems to assume that it is true. There could be other things that are deeply integral to the sense of self (possibly even more so than sexuality). For instance, religious identity, or friendship or nationality could all be integral to a woman’s sense of self. Who is to say that sexuality trumps all these other possibilities? Furthermore, premise (6), if true, may implicate far more types of labour. My academic work is pretty integral to my sense of self. Does this mean it should not be bought and sold? Economic payment is, for better or worse, one of the chief ways in which we value something in contemporary societies. If something so integral to my sense of self was not economically rewarded, it might be more harmful to my sense of self than if it were. Indeed, rewarding it might reinforce and strengthen my sense of self.

  • (9) There is no argument provided for thinking that reproductive labour is deeply integral to a woman’s sense of self; and there are many other things which could be deeply integral to their sense of self (religion, family, nationality etc.).
  • (10) Premise (6), if true, could implicate far more types of labour; furthermore, it may arguably be worse for something that is so deeply integral to your sense of self to go without economic reward.

Pateman’s argument and the objections to it are illustrated in the diagram below.

2. Is there something about the special bonds of parenthood?
Let’s move on to the second type of argument. This one claims that surrogacy ought not to be commercialised because it does something to distort the relationship between parents and children. There are two main sub-types of this argument discussed in Satz’s book.

The first focuses on the emotional bonds between a pregnant mother and the foetus/child. This is something frequently referenced by former and would-be mothers. There is a strong biological connection between the pregnant mother and the child developing within her. That is obvious. But this is also said to give rise to a natural and important emotional bond. The problem with commercial surrogacy is that it would force the pregnant mother to deny or distort this natural emotional bond. In this sense, she would have to alienate herself from her natural feelings, and would be viewed as little more than a ‘baby-making’ machine.

The argument here is similar to Pateman’s insofar as it is about the alienation of important emotions, but it is different because it is not about harm to sense of self but harm to a natural relationship. We can put it like this:

  • (11) There is an important natural, emotional bond between a pregnant mother and her child.
  • (12) If commercial surrogacy forced us to distort or deny that natural, emotional bond, it should not be permitted.
  • (13) Commercial surrogacy does force us to distort or deny that natural, emotional bond.
  • (14) Therefore, commercial surrogacy ought not to be permitted.

There are two major problems with this argument. The first is that there is reason to doubt whether we know what emotions are naturally and normally involved in pregnancy. Satz makes a nice historical observation on this point. It used to be the case that the nurturing and altruistic relationship between mother and child was associated with married mothers only. Unmarried mothers were portrayed as “selfish, neurotic, and unconcerned” with the welfare of their children. So much so, in fact, that such mothers were often encouraged or obligated to give up their children for adoption after birth. We now have a different social attitude, but the fact that we have gone through such cycles should give us some pause when we see people introducing claims about ‘normal’ emotional bonds.

A second problem with the argument is how it relates to abortion policy. Many feminists are keen on the right to abortion. But surely granting (and exercising) a right to abortion involves just as much of a distortion of the ‘natural’ emotional bonds between a pregnant mother and her child as would granting her the right to sell her gestational services? Of course, this is only a problem for those who endorse the right to abortion, but it highlights an important point about the need for consistency in this area. If you think that aborting a foetus does not distort the natural relationship, why think that agreeing to be a surrogate is any worse?

  • (15) It is difficult to say what emotional bond is a ‘normal’ or ‘natural’ feature of pregnancy; historically, the special emotional bond was only thought to exist between married mothers and their children.
  • (16) If this principle (premise 12) is accepted, it may create tension with abortion policy, viz. the right to abortion may also distort this ‘natural’ emotional bond.

Now, to be clear, Satz thinks there is something to this style of argument. She thinks there is something about the surrogate’s contribution to the development of the child that may not be recognised when surrogacy is commercialised. But she thinks this is better dealt with under a general ‘inequality’ argument against commercial surrogacy. We’ll get to that in the next post.

This brings us to the second variant on the ‘special bond’ argument. This one doesn’t focus on the relationship between the surrogate mother and child, but rather on the relationship between the commissioning parents and the child. The concern is that commercialisation of surrogacy would lead to an inappropriate attitude toward parenthood. Specifically, it would encourage people to ‘shop’ for children and treat children as commodities (or pieces of property) that can be bought and sold for the right price. To put it more formally:

  • (17) If commercial surrogacy forced us to distort the appropriate relationship between parents and children, then it should not be permitted.
  • (18) Commercial surrogacy would force us to distort the appropriate relationship between parents and children by allowing parents to ‘shop’ for children and to treat such children as property.
  • (19) Therefore, commercial surrogacy should not be permitted.

Is this argument any better than the previous one? Not really. As Satz points out, most people opt for surrogacy (over, say, adoption) because they want a genetic link with their child. It’s not that they want to shop around for the ‘best’ child. There is every reason to think that they will love this child in the normal way. Furthermore, children who are produced via surrogacy arrangements will not be the property of their commissioning parents. They will have all the rights and protections that are normally afforded to children. It will not be about selling a baby; it will be about selling gestational services (and maybe, depending on the legal jurisdiction, parental rights and responsibilities).

That said, there is some cause for concern here. There have been cases in which commissioning parents have rejected genetically disabled children, or in which they have taken a child away from a surrogate mother who did forge some deep bond with the child. But, as Satz points out, there is no reason to think that an appropriate set of regulations (rather than an out-and-out ban) couldn’t deal with these issues. Indeed, similar regulations are already in place in the case of adoption (e.g. regulations to deal with change of mind by the biological mother or adoptive parents).

  • (20) Commercial surrogacy is unlikely to distort the relationship between parents and children: commissioners are usually motivated by the desire for genetic offspring (not for the ‘best’ possible child); they will not acquire property rights over the child; and problems with change of mind (etc) could be dealt with by appropriate regulations.

3. Will it have bad consequences for children?
This brings us to the third and final class of argument. This one focuses on the effect of commercial surrogacy on the children. Up to this point, the arguments have focused on the nature of reproductive labour and the relationship between parents and offspring. It is appropriate to focus purely on the offspring too. Will surrogacy be better or worse for them?

Some people are attracted to a ‘best interests’ or ‘harm to children’ argument against commercial surrogacy. The argument itself has a relatively simple structure:

  • (21) If commercial surrogacy is not in the best interests of the child (or, alternatively, if it would harm the child in some serious way) it should not be permitted.
  • (22) Commercial surrogacy is not in the best interests of the child (or would harm the child in some serious way).
  • (23) Therefore, commercial surrogacy should not be permitted.

The argument equivocates between ‘best interests’ and ‘serious harm’ because although the former phrase has legal significance and is used a lot in this debate, it may be overly idealising and avoiding serious harm may be more important than achieving the best possible outcome. In any event, one presumes that the concern being expressed in this argument has to do with the potential harms of taking the child away from its birth mother and/or the negative psychological effects on the child of knowing that they were the result of a surrogacy arrangement. There are two responses to this.

First, there is no reason to think that children produced via surrogacy arrangements are likely to suffer long term harm, or that taking them away from their birth mothers is not in their ‘best interests’. Satz is a little sketchy on this, claiming that there is ‘very little empirical evidence’ on this issue. I had a quick look for studies on PubMed and found a few, though most agreed with Satz and lamented the lack of good data. One systematic review, published in the past year, found no major psychological differences between children born via surrogate and other children, based on a 10-year follow up. Another study, published a few years back, reported similar findings based on 7-year follow-up. (Also, interestingly, both studies suggest that surrogacy arrangements are usually well-implemented, with surrogate mothers rarely experiencing great difficulty in ‘giving up’ the child). There is certainly nothing out there to suggest that children suffer from major harm.

Second, even if there were some negative effects — e.g. bullying by other children or negative stereotyping — it is not clear that these would be sufficient to ban the practice. As Satz puts it, once the basic interests of a child are being met, it’s not clear that we should intervene to remove all negative influences. If we did, then we’d probably have to take a far more interventionist line with child protection. For instance, a child’s basic interests could be met in a low-income household, but they may do better in a high-income household. This doesn’t mean, however, that we should redistribute children from low-income to high-income households. The point is that once the basic interests are being met, other moral and social considerations could weigh against intervention.

  • (24) There is no evidence to suggest that children are seriously harmed by surrogacy, and nothing to suggest that their ‘best interests’ would be served by staying with their birth mothers.
  • (25) If we endorsed this principle (premise 21), we would have to intervene in far more familial arrangements: once the child’s basic interests are being met, other considerations may count against intervention.

Another point is that this style of argument applies just as well to non-commercial forms of surrogacy. The diagram for this final argument is below.

4. Conclusion
To briefly sum up, we have looked at three main types of argument against commercial surrogacy. The first type claimed that there is something special about reproductive labour that makes it inapt for commercialisation. But we didn’t find any persuasive account of this specialness. Many other forms of labour share features with pregnancy and yet we do not consider them inapt for commercialisation.

The second type of argument claimed that commercial surrogacy would damage the relationship between a (birth) mother and her child, or between (commissioning) parents and their children. But neither of these claims seems warranted. It is dangerous to claim that there is always some special emotional bond between a birth mother and her child; and it is doubtful whether commissioning parents will have a distorted relationship with their children. On the contrary, there is every reason to expect them to love those children in the normal way.

The third type of argument claimed that commercial surrogacy is either bad for children or not in their best interests. This argument was also found lacking. There is no good evidence to suggest that a child’s best interests are not being served by such arrangements. And once a child’s basic interests are being served by their current familial arrangement, there are usually good reasons not to interfere with those arrangements.

Of course, all of these criticisms are designed to clear the way for Satz’s own ‘inequality’ argument against commercial surrogacy. We’ll look at that argument another time.

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