Wednesday, October 21, 2015

The Ethics of Commercial Surrogacy: Gender Inequality Arguments

(Previous Entry)

This is a follow-up to my previous post on Debra Satz’s analysis of commercial surrogacy. In that post, I reviewed three classic objections to surrogacy and presented some of Satz’s critiques of those objections. As I mentioned, this was a ground-clearing exercise. Although Satz’s thinks that the traditional objections are flawed, she is not herself a supporter of commercial surrogacy (to be precise, she is not a supporter of ‘contract pregnancy’, which makes the target and conclusion of her arguments less clear — I’ll return to this point below).

She thinks there is something deeply troubling about commercial surrogacy arrangements, particularly when facilitated by for-profit intermediaries (so-called ‘surrogacy brokers’). She thinks that commercial surrogacy serves to reinforce systematic gender (and other) inequalities. This gives us a sufficient reason to oppose its legalisation (at least, I think that’s what she believes — as I say, it’s not entirely clear).

In this post, I want to go through her main argument. I’ll do so in three parts. First, I’ll outline the basic structure of the argument. Second, I’ll look at her defence of the key premise in this argument. And third, I’ll offer some critical reflections on that argument. As you shall see, although I appreciate the concerns that Satz raises, I’m not convinced that opposing commercialised surrogacy is the best way to correct for systematic gender (and other) inequalities.

1. The Systematic Inequality Argument
Satz’s argument works off two assumptions. It’s worth making these explicit because if you don’t share them the argument is unlikely to be persuasive. That said, I expect pretty much everyone will share these assumptions.

The first is simply that women have been (probably still are) victims of systematic gender inequality. This seems unexceptionable. It is certainly true that women’s lives and (importantly) women’s bodies have been controlled and limited by oppressive legal-moral regimes in the past; and it is probably true that they still are (though the situation has undoubtedly improved in most developed countries). I’m being equivocal on this latter point because it doesn’t need to be true for the argument to work. It is enough that there was historical oppression and that society needs to guard against slipping back into it.

The second assumption is that surrogacy is a peculiarly female-dominated form of labour. This also seems unexceptional. There are many forms of employment that are, for historical, cultural and maybe biological reasons, female-dominated. Examples would include certain forms of teaching, care work, cleaning, secretarial work and sex work (the latter often being analogised or compared with surrogacy in ethical debates). But you don’t have to be female to perform these kinds of work. Men can and do work in these jobs. That’s not true of surrogacy: to be a surrogate you must have the biological characteristics of a female (it is true that some transgender males could work as surrogates, but only if they have these characteristics). This means that surrogates will tend (overwhelmingly) to be cisgendered females. This makes gender inequality arguments particularly salient when it comes to debates about surrogacy.

With those two assumptions in place, we can develop the argument proper. It works a little something like this:

  • (1) If commercial surrogacy reinforces and perpetuates systematic gender (and other) inequalities, it ought to be prohibited.
  • (2) Commercial surrogacy does (or is likely to) reinforce and perpetuate systematic gender (and other) inequalities.
  • (3) Therefore, commercial surrogacy ought to be prohibited.

The argument looks logically valid, but is it any good? We can grant the motivating moral principle stated in premise (1). Gender (and certain other) inequalities are widely recognised as being bad things, and it is generally agreed that we should seek to minimise and mitigate their occurrence (there may be some dispute about the merits of some modicum of income inequality but I don’t know of anyone who thinks we should seek to maximise income inequality). Whether that should lead us to prohibit or ban commercial surrogacy is slightly more dubious, but I will grant the claim for now.

That makes premise (2) critical. Satz proffers an elaborate defence. Let’s look at the details.

2. Does Surrogacy Reinforce and Perpetuate Inequalities?
Satz’s defence of premise (2) has four main prongs. The first three are all concerned with the various ways in which commercial surrogacy can (and does) reinforce and perpetuate gender inequality. The fourth limb notes how these gender inequality effects may compound on top of other socially problematic forms of inequality (e.g. racial or income). Satz doesn’t make much of this fourth limb, only really noting it in passing. She focuses her energy on the first three.

The first prong of the defence is concerned with the effect of surrogacy contracts on women’s bodies. Such contracts often try to exert significant levels of bodily control. As Satz puts it:

Pregnancy contracts involve substantial control over women’s bodies. Such provisions include agreements concerning medical treatment, the conditions under which the surrogate agrees to undergo an abortion, and regulation of the surrogate’s emotions. Thus, in the case of Baby M [a famous surrogacy case], Mary Beth Whitehead not only consented to refrain from forming or attempting to form any relationship with the child she would conceive, but she also agreed not to smoke cigarettes, drink alcoholic beverages, or take medications without written consent from her physician. She also agreed to undergo amniocentesis and to abort the fetus. 
(Satz 2010, 129)

For Satz the critical point is not just that the contracts exert significant control over the body — other employment contracts can do the same and be relatively unobjectionable — it is the fact that the body in question belongs to a woman:

…the issue is that in contract pregnancy the body that is controlled belongs to a woman, in a society that historically has subordinated women’s interests to those of men, primarily through its control over women’s sexuality and reproduction. 
(Satz 2010, 129)

Defenders of surrogacy will intervene at this point and argue that some appropriate regulation could be introduced to correct for these negative effects. But Satz argues that it will be difficult to come up with such regulations. The purpose of a contract pregnancy, after all, is to produce a healthy baby and “[t]o help guarantee a healthy baby, a woman’s behaviour must be highly controlled” (Satz 2010, 129).

The second prong of her argument focuses on stereotyping. As she sees it, the rise of contract pregnancy will serve to reinforce negative stereotypes about women being ‘baby machines’. Satz has a somewhat nuanced view of stereotypes and their negative effects. She admits that stereotypes can be empirically grounded. Her concern is that even when empirically grounded they will end up being ‘self-confirming’. People who are affected by the negative stereotype will start to conform and adapt to social expectations, and thus we get a negative feedback cycle:

In early twentieth century America few women aspired to be doctors; their ambitions were powerfully shaped by the structure of opportunity, but also by the expectations that they and others had about their role in the household. If the practice of contract pregnancy were to become common and widespread, it might affect the way all women see themselves. 
(Satz 2010, 130)

This brings us to the third prong of her argument. This one focuses on the social and legal understanding of motherhood. Satz worries that if contract pregnancy is normalised motherhood will start to be understood solely in terms of genetic contribution to offspring and not (also) in terms of gestational contribution. To support the concern, she refers back to the Baby M case, in which a surrogate mother won back parental rights because she was also the genetic mother. This is then contrasted with the case of Anna Johnson, another surrogate, who lost parental rights because she was not the genetic mother. Satz explains the problem like this:

By not taking women’s actual gestational contributions into account, the courts reinforce an old stereotype of women as merely the incubators of men’s seeds…By defining women’s rights and contributions in terms of those of men, when they are different, the courts fail to recognize an adequate basis for women’s rights and needs. These rulings place an additional burden on women. 
(Satz 2010, 131)

These three prongs form the major part of Satz’s argument. She does, however, add to them the further observation that gender inequalities may tend to compound on top of other social inequalities. Thus, for instance, the kinds of women who will end up being surrogates may tend to be from lower-income households, or be members of racial and ethnic minorities. I discussed some of these concerns in a previous post about transnational surrogacy.

I’ve tried to summarise Satz’s defence of premise (2) in the argument diagram below.

3. Three Concerns about Satz’s Argument
What should we make of all this? I certainly wouldn’t deny the potential for surrogacy to compound and reinforce gender (and other) inequalities. As I noted earlier, surrogacy is going to be a strongly female-dominated form of labour due to current biological constraints. So there is no doubt that its legalisation will add to the gendered division of labour. But I’m not convinced that this, by itself, is a sufficient reason to oppose legalising its commercial form. I have three concerns in particular about Satz’s argument.

First, I worry that it relies too heavily on initially plausible, but on reflection somewhat dubious, quasi-empirical claims. For instance, her talk about how normalisation of contract pregnancy could reinforce negative stereotypes, or about how women’s bodies will need to be closely controlled in order to ensure a healthy baby, or about the effect of normalisation on society’s understanding of motherhood. These are all empirical claims but they are somewhat speculative in nature. As best I can tell, Satz cites no evidence in support of these claims (although she does use court cases to support some aspects). I would like to have something more empirically robust. For example, I have my doubts about whether surrogacy agreements would require close control over a woman’s body. This claim seems to assume and reinforce a negative stereotype — viz. that a surrogate mother would be reckless and would not have the interests of the child she is carrying at heart. Furthermore, Satz’s discussion ignores the existing empirical research on surrogacy practices and the experiences of surrogate mothers. Jenni Millbank reviews much of this evidence in a recent article and concludes that most surrogacy agreements are well-implemented and that the practice provides satisfaction for the women who engage in it. Likewise, Satz ignores the ways in which paid surrogacy may be used by women to overcome pre-existing social-economic disadvantages.

Second, I don’t think Satz does a good job of convincing us that regulation is not an appropriate solution to the problems she raises. For example, in relation to the claim that surrogacy agreements involve significant levels of control over a woman’s body, Satz dismisses the case for regulation on the grounds that it would be difficult to negate this given the purpose of the contract. But I’m not at all convinced that this is true. As I just noted, Satz’s defence of this claim rests on a somewhat dubious assumption about the (reckless) proclivities of the surrogate mother. More importantly, Satz’s problem seems to be with a situation in which the intended parents have all the bargaining power. But you could set up a regulatory regime in which the surrogate has most of the bargaining power. You could make surrogacy agreements a very special kind of contract in which nearly all the risk is absorbed by the intended parents, or in which there are extra protections for the gestational privacy of the surrogate (e.g. no right to require an abortion).* Furthermore, as Millbank points out, there are ways in which professional intermediaries (i.e. people who screen, counsel and match surrogates to intended parents) can help to minimise the risks associated with surrogacy contracts.

Finally, and perhaps most importantly, I don’t think Satz’s argument does enough to explain why prohibition is the preferred alternative. I think applied ethical arguments should always be evaluated in comparative terms: is the proposal that is on the table better than the alternatives and the current status quo? When assessed in these comparative terms, I don’t think Satz’s argument does the necessary work. Part of the problem is that she just isn’t very clear about the overall conclusion she wants us to reach. She speaks against ‘contract pregnancy’ but then at other times seems to suggest the need for regulated contracts, or for contracts that are permitted but ‘unenforceable in the courts’ (Satz 2010, 131). This leaves me confused, so I’ll just offer my own analysis of the situation.

Assume that there are three broad possibilities when it comes to surrogacy agreements: (i) they could be criminalised or, at least, not legally recognised; (ii) they could be permitted but only on an altruistic (i.e. not for-profit) basis; or (iii) they could be permitted on a commercial basis (i.e. surrogates should be paid). The latter is consistent with a high degree of regulation and protection for the surrogate. Indeed, the market for surrogacy services could even be run entirely by the government if you like. The key is simply that surrogates are paid for their services beyond medical and living expenses. Of those three possibilities, I suspect that (iii) is the preferred alternative, even for someone who is concerned about gender (and other) social inequalities.

Why do I think this? Well, (i) seems highly problematic. A complete ban would not negate the desire for surrogacy and it is very difficult to implement such bans (particularly given that some forms of surrogacy are not that technologically sophisticated). The result would be to drive the market underground and/or overseas to countries like India (see my previous post on this). This would arguably make the practice more exploitative and more regressive from a women’s rights perspective. This is one area in which an analogy with sex work might be appropriate. You may dislike sex work and find it morally problematic, but it is not at all clear that banning or criminalising it is the best way to protect the vulnerable people who work in the industry. Indeed, many sex workers and feminist activists argue the exact opposite. I think the same could be true of surrogacy.

That leaves us with (ii) and (iii). Both could work and could include important regulatory protections for the surrogate. The problem I have with (ii) is that it can be very difficult to police the boundary line between altruistic and commercial forms of surrogacy, and, furthermore, it is arguably more unfair and more exploitative than commercial forms. For instance, the UK permits ‘altruistic’ surrogacy and surrogates can be paid reasonable expenses of around £13,000. In some cases courts have authorised higher payments, but even the standard payment often amounts to commercialisation in all but name. The reality is that people often try to circumvent the law with other forms of payment. Similarly, in countries like Australia and Canada altruistic surrogacy agreements are permitted in which intermediaries (fertility clinics and the like) are allowed to profit from the agreements but surrogates are not. The Marxist within me recoils at this: why should these intermediaries be allowed to extract all the profit from the surrogate’s labour? What is so terrible about her taking some form of compensation? You could even argue that assigning an economic value to her gestational labour sends an important social signal. It indicates that this is a type of labour that deserves some economic reward. Furthermore, as pointed out above, providing such an economic reward may provide a means for some women to ameliorate their social-economic disadvantage. Altruistic surrogacy doesn’t permit this.

So, in the end, even if commercial surrogacy is not ideal from a gender equality perspective, it seems to be better than the alternatives. The sad fact is that we live in a morally imperfect world and our attempts to set policy need to take this into account.

* Despite some sensational news stories, I am not aware of any case in a developed country, like the US, where a woman has been forced to undergo an abortion under a surrogacy agreement.

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