The Ethics of Commercial Surrogacy: Three Standard Objections

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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.

Does Money Poison Everything? Sandel and the Corruption Effect

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The Worship of Mammon by Evelyn de Morgan

(Previous Entry)

There is a serious shortage of kidney donors throughout the developed world. This has obvious consequences for people with severe kidney disease. I’ll use my home country of Ireland as an example. According to one 2009 study, which covered the period 2000-2005, the average waiting time for someone on the transplant list was 8-15 months (with waiting times varying considerably depending on blood type). According to more recent figures from the Health Service Executive’s webpage, the average waiting time is two years, and at present there are over 650 people on the waiting list . These figures need to be appreciated in the appropriate context. A patient is only placed on the transplant list when their kidney damage reaches the point that they will require dialysis. So these are already people facing severe health complications. Also, Ireland is not that bad when it comes to kidney transplants. The lack of donors and length of waiting times is much more severe in the US (even taking into consideration population differences). There are currently over 100,000 people awaiting kidney donations in the US and the average (median) waiting time is 3.6 years.

Economists think that there is an easy way to solve this issue. The problem is a lack of supply. Transplanted kidneys come from two main sources: (i) deceased donors (who were in position to have their organs harvested); and (ii) altruistic donors (usually family members; sometimes strangers). We could easily increase supply if we added a greater incentive to non-family donors. How could we do that? Simple: we could pay people to donate their organs.

Paying people for kidney donation is an instance of commercialisation, i.e. the process of converting something (in this case one’s bodily organ) into a commodity that can be bought and/or sold for a price. Is this something we should get behind? In my most recent post, I looked at Sandel’s two main arguments against commercialisation: (i) the corruption argument and the (ii) the fairness argument. Following these two arguments, Sandel claimed there are some things that money shouldn’t be able to buy because the process of commercialisation either corrupts or undermines the value of the thing in question, or because it leads to an unfair allocation or distribution of that thing.

In this post, I want to dive deeper into the corruption argument. I’ll do so in four main phases. First, I’ll look at three examples Sandel uses to motivate his corruption argument and note something interesting about the structure of these examples. Second, I’ll look at the standard economist’s argument in favour of commercialisation in these kinds of cases. Third, I’ll outline Sandel’s responses to those arguments. And fourth, I’ll offer my own criticisms of Sandel’s views.


1. How Money Corrupts
The economist’s case for paid kidney donation is structurally interesting. It looks something like this: there is an outcome which we recognise as being socially beneficial (i.e. more kidneys being transplanted) and there are two pre-existing pathways to that outcome (deceased donors and altruistic donors). The economist’s claim is that we could open up a third pathway (paid donors) that would generate more of the socially beneficial outcome.

The argument is superficially appealing. It seems to feed upon standard and intuitive assumptions about how people react to economic incentives. Furthermore, it doesn’t involve anything like Sandel’s proposed corruption of a socially valuable good. Quite the contrary: it seems to promote something of social value. So where’s the problem?

Sandel’s claim is that it doesn’t always work like that. Opening up an additional (commericalised) pathway towards some social good may not have a beneficial effect and may actually cut-off some of the pre-existing pathways. This is the corruption effect. He uses three empirical studies to support this argument:

Nuclear Waste: Nobody wants to have a nuclear waste site in their ‘backyard’. This was a problem in Switzerland for years (apparently). One proposed site was near a small village called Wolfenschiessen. The Swiss like to have referendums about everything and so shortly before a referendum on where the waste site should be located, two economists (Frey and Oberholzer-Gee) conducted a study into what might motivate the local residents to agree. They conducted an initial survey which found that a slim majority of villagers (51%) agreed to their village being chosen as the location, largely out of a sense of civic duty. They then did what any good economist would do: they tried to see if more people would agree to it if they got annual monetary compensation. Oddly, this cut the acceptance rate in half to 25%.

Donation Day: There is an annual ‘Donation Day’ in Israel. High school students go door-to-door collecting money for worthy causes. One year, a group of economists conducted a study to see whether they could motivate students to collect more money. They divided the students into three groups. All three listened to a motivational speech about the importance of the cause. For one group, that was all they got. The other two groups were told that they would get a small percentage of the money they raised (1% and 10% respectively). This would not be directly deducted from the donated money, but would come instead from another fund. The results were interesting. The first group of students raised the most money. The students who were paid 10% raised the second-most. And the students who were paid 1% raised the least (by a considerable margin).

Day-Care Pickup: This is another famous Israeli case study. It involved children being picked up from day-care by their parents. Day-care centres had a problem with late pick-ups. They tried to do something about it by introducing fines for parents who were late arriving to pick up their kids. Again, oddly, this actually increased the number of late arrivals (nearly doubled it, in fact). What’s more, when the day-care centres tries to reverse their policy after 12 weeks, the elevated rate of late pick-ups remained.

In each of these cases, commercialisation seems to have had a negative impact on the desired outcome: it made villagers less likely to agree to the location of a nuclear waste sit; made students less motivated to collect money for charity; and made parents more likely to pick-up their kids late. Of course, it is slightly more complicated than that. The Donation Day example shows that money can have some motivating effect (the students getting 10% did significantly better than the students getting only 1%), and it is possible that in each of these cases including the monetary incentive de-motivates because they think ‘Oh you could get other people to do this for money, instead of me’ or ‘Oh, now I can simply pay more for the privilege of picking up my kids late’.

Sandel insists that the examples show the corrupting effect of commercialisation. In this respect, the structure of the scenarios is again worth noting. The structure is like the kidney donation scenario. There is some desired outcome (agreeing to the location of the waste site; raising money for charity; picking up your kids on time) and there is one pre-existing motivational pathway to that outcome. I’ll call this the ‘sense of duty’-pathway. The economists then propose adding a second pathway to the desired outcome (the ‘commercialisation’ pathway) in the hope that this will improve the outcome. But this is not what happens. On the contrary: opening up the commercialisation pathway actually cuts-off the sense of duty pathway, and hinders achievement of the desired outcome. This is corruption in action.

2. The Economic Objections and Replies
Sandel notes that economists resist this conclusion. They have two standard arguments they proffer by way of reply. The first can be called the ‘no-harm’ argument. According to this, Sandel (and others like him) are wrong because commercialisation doesn’t harm the social good in question. It is still possible to achieve that good. Here’s how Sandel describes the objection:

…commercializing an activity doesn’t change it. On this assumption, money never corrupts, and market relations never crowd out nonmarket norms…If a previously untraded good is made tradable, no harm is done. Those who wish to buy and sell it can do so, thereby increasing their utility, while those who regard the good as priceless are free to desist from trafficking in it. 

(Sandel 2012, 125)

Of course, this objection seems pretty unpersuasive in light of the three examples mentioned above. In each of those cases, commercialisation didn’t simply open up an independent (parallel) pathway to the beneficial outcome. All it did was cut-off the pre-existing pathway and open up a less efficient one. So it’s hard to see how anyone could find solace in the ‘no-harm’ argument.

But I wonder whether this is slightly misleading. I think an economist could object to the artificiality of the three examples Sandel uses to support his argument. Each of those examples involved some enforced policy of commercialisation. The villagers were told they would get monetary compensation if they agreed to the nuclear waste site; the students were divided up into groups against their will; and the parents were threatened by a fine. This is not at all like opening up a free market in some currently non-commercialised good. Take, for instance, kidney donation, or adoption, or surrogacy. Economists have argued for the commercialisation of all three of these things. I think you could make a decent argument that in those cases opening up a commercial pathway may not have the same corrupting effect. So if you wanted to donate a kidney altruistically, this would still be permissible. Or if you wanted to conceive a child in the traditional manner, no one would stop you (indeed, most people would, presumably, prefer this route if it were available to them — they would only resort to surrogacy if this fails). Commercialisation may consequently be a genuinely parallel pathway to the desired outcome.

Of course, this is somewhat speculative. The important point is that the studies cited by Sandel may not have the argumentative power he claims. The other possibility is that Sandel thinks the motivational pathway to the outcome is partly constitutive of the good in question. Thus, he may argue that donating altruistically or agreeing to a policy out of civic duty is part and parcel of the alleged social good. If that were the case, there may be more to be said against opening up the commercialisation pathway (I discussed this briefly in a previous post when I raised the example of honorific goods: in those cases how one achieves the outcome really does seem to matter).

This brings us to the second leading economic objection. This one can be called the ‘depletion’-argument. It claims that we should open the commercialisation pathway to at least some beneficial goods because the alternative motivational pathways are in short supply. In other words, they claim that there is a limited amount of altruism or civic-duty in the world. If people expend some of their altruism and civic-mindedness on one set of outcomes (like kidney donation or agreeing to the location of a nuclear waste site), then they will have less to expend on other desirable outcomes. It is best then to reserve our altruism and civic-mindedness for the cases that really matter, and rely upon commercial incentives when we can.

Sandel finds this dubious. For one thing, it ignores the evidence cited above suggesting that commercial incentives can be inferior. For another, it ignores the possibility that acting on our generous virtues may amplify, rather than deplete, our supply of altruism and civic-mindedness. As he puts it:

To those not steeped in economics, this way of thinking about the generous virtues is strange, even far-fetched. It ignores the possibility that our capacity for love and benevolence is not depleted with use but enlarged with practice. Think of a loving couple. If, over a lifetime, they asked little of one another, in hopes of hoarding their love, how well would they fare? Wouldn’t their love deepen rather than diminish the more they called upon it? 

(Sandel 2012, 129)

Sandel admits that there is little empirical evidence for this alleged amplification (and he certainly doesn’t cite any), but there is little empirical evidence for the depletion effect too. In fact, Sandel thinks it is merely a piece of ‘folk wisdom’ to which economists subscribe. His folk wisdom is just as good as theirs.


3. Is Sandel Right?
So much for Sandel’s corruption argument. Is it any good? I have already expressed some doubts about the studies upon which he relies and how generalisable they might be. I want to wrap up by suggesting two broad lines of criticism.

First, I want to accept that in some cases commercialisation may have a corrupting effect. Indeed, I think this is almost certain to occur when the non-commercialised pathway to the desired outcome is partly constitutive of the value inherent in that outcome. But in other cases, I think the corrupting effect will be highly contingent. In some instances commercialisation might reduce the desired outcome; in other cases it might actually increase the desired outcome. Kidney donation may be an example of the latter. Iran is (as far as I am aware) the only country in the world that pays donors for organs and, according to some evidence it suffers from no backlog or waiting list. So the commercialised pathway has improved things. Now, to be clear, the Iranian case is complex. The commercialisation process has gone through a few iterations, and the market has been carefully managed by the government (though less so in recent times). Nevertheless, it does suggest that Sandel’s argument is not as robust as he seems to suggest. Thus, I would submit that his elaboration of the corruption argument moves it away from being an ‘in principle’ objection to commercialisation, and turns it into a contingent ‘in fact’ objection.

Second, I think that Sandel’s argument is ill-equipped to deal with cases in which there is a pre-existing black market for a good or service (e.g. recreational drugs, sex work, some organ donation). You could argue that these cases are different because the outcomes in question (supply of drugs or sex workers) are not obviously socially valuable. Fair enough. We could dispute this, but let’s not. The point is that the markets exist and we need to do something about them. There are two basic options: double-down on the policy of making them illegal, or legalise them. Oftentimes, economists are very keen to push for legalisation is these scenarios. The argument being that there is already a commercial pathway to the particular outcomes, but because it is illegal, it makes things worse for the workers in those illegal markets, and for society in general. Legal commercialisation is consequently the better option. So even if we might worry about the corrupting effect of commercialisation, we sometimes have to live with the reality of pre-existing black market commercialisation. In light of that reality, legal commercialisation may be the preferable option.

Anyway, those are my quick thoughts on Sandel’s arguments. What do you think?

Are there some things money shouldn't buy? Two Anti-Commercialisation Arguments

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I have a confession: I don’t like marking student assignments. Last year, I marked over 1000 of them. That includes formative assessments, in-class tests, case notes, essays, problem question assignments, and exams. Some were relatively short (80 were just one page); some were much longer (just over 90 were 5,000 words or more). Still, that’s a lot of marking, and even if the process can sometimes be enjoyable (e.g. when you read a particularly well-argued essay), most of the time it is tedious. Students say the same things, about the same topics, and make the same mistakes.

It would be great if I could avoid all this marking. And this year I think I may have hit upon a solution. Instead of wasting all that time and effort trying to work out whether one particular student deserves a 68 or a 67 or whether another deserves a 48 or 50, I’m simply going to start auctioning off grades to the highest bidders. I’ll have a fixed quota of first class grades, a larger fixed quota of 2:1 grades and so on. I’ll then allocate people to grades based on how much they are willing to pay me. This will reduce my work burden and teach students a valuable lesson: money really is the currency of success in this world.

No doubt you are appalled (and, to be clear, I am only kidding), but why are you appalled? Well, let’s consider exactly what I am proposing. I am proposing to commercialise grade-giving in my classes. Commercialisation can be defined in the following manner:

Commercialisation: This is when you take something (a good, a service, a status etc.) and convert it into a commodity that can be bought and sold for a price.

Commercialisation, so-defined, is often thought to be a good thing. Market prices provide incentives for people to engage in certain behaviours; and markets themselves are often efficient ways to distribute and allocate goods and services. Still, we can’t help but think that commercialising university grades is wrong. Why is this?

In his popular book What Money Can’t Buy, Michael Sandel suggests that there two main arguments against commercialisation of the sort just described. In this post, I want to outline and analyse these two arguments. Although I won’t refrain from critical commentary as I go along, I’m saving up my more substantive critiques for a later post. So you can look on this as a sort stage-setting exercise (though hopefully it has some utility of its own). Also, I’m writing about this with a particular topic at the back of my mind (namely: the commercialisation of surrogacy), but I’m going to suppress that particular interest for the time being.


1. Two Things Money Can’t Buy
Sandel likes to argue using stories and illustrations. Instead of starting with some basic moral principles and deriving arguments against commercialisation from those principles, he likes to start with case studies and examples and build the arguments and principles from their. This is common enough in moral philosophy, but Sandel is a particularly strong proponent of it (at least in this book). He starts by considering two scenarios in which it seems pretty clear that we cannot commercialise.

We have already considered an instance of one of them: the commercialisation of university grades. This is my example. Sandel gives an alternative, possibly even starker, example: the commercialisation of the Nobel Prize. Imagine if you could simply buy a Nobel Prize in Physics (say). The very idea is absurd. There is something about the good in question (the grade/the prize) that is completely undermined by the commercialisation process. But what exactly is it? Sandel says the answer lies in the concept of honour. University grades and Nobel Prizes are honorific goods:

Honorific Goods: These are goods that are granted or bestowed in honour of some achievement or ability. Granting them on an alternative basis (e.g. ability to pay) will eliminate their value.

Note what this definition is saying: It is saying that, in the case of a purely honorific good, it is not simply that commercialisation lessens or reduces the good, it is that commercialisation changes it completely: if university grades are auctioned off to the highest bidder, they are no longer honorific goods. Their meaning and value has been altered.

So much for that. Now consider another example: friendship. It is widely agreed that friendship is not something that can be bought and sold. If you have a lot of money, you may be able to attract of lot of people to you, but if they abandon you as soon as the money is gone, they are not really your friends. There is something in the nature of friendship — properly understood — that immunises it from commercialisation. Friendship is about mutual interests, shared passions and reciprocal concern. This requires authentic emotional attachment and engagement. We don’t think (or don’t like to think) that this is something that can be bought or sold. In this respect, friendship is merely one of a class of friendship-related goods, that includes other things like certain forms of sexual intimacy and romantic relationships.

Friendship-related Goods: These are reciprocal goods, arising in the context of human relationships, born of an authentic emotional attachment and engagement. This authentic emotional attachment and engagement is denuded or undermined by commercialisation.

Note that the anti-commercialisation intuition here is strong, but not quite as strong as it was in the case of honorific goods. I’m pretty confident that it is conceptually impossible (not just undesirable) to commercialise a purely honorific good (unless the honour in question relates to having a lot of money). I’m less sure that is the case with friendship-related goods. I think authentic emotional attachment and engagement might be very difficult if the system is commercialised. But I am not sure that it is impossible. Human emotional systems are odd things. The authenticity of emotion may not always correlate with the absence of commercialisation, and there may be a lesser degree of emotional attachment and engagement made possible through friendship

With these two examples, we are feeling our way towards enlightenment. We are beginning to see that there are certain types of goods that might be corrupted or diminished if they are commercialised. With a few more examples, we might further refine our intuitions.


2. Two Things Money Probably Shouldn’t Buy
Let’s consider some less obvious cases. Instead of friendship, how about tokens of friendship like gifts? Gift-giving is clearly a heavily commercialised process. Excepting self-made gifts and gifts you buy for purely cynical reasons, gifts are things you buy in order to signal friendship. And unless we all switch to making the gifts we give others, this is not going to change. In this sense, it would be silly to think of gifts as things that money ‘probably shouldn’t buy’.

This is right, insofar as it goes, but it misses something important about the nature of gift-giving. A gift is not a purely economic commodity. In other words, the value of a gift is not (or should not be) reducible to its monetary value. A gift should reflect a degree of thoughtfulness and consideration for the recipient. To this extent, Sandel laments the rise of gift-cards and cash-gifts. He thinks they reflect the creeping commodification of social life.

Maybe you are not swayed by the gift example (I’m not because I think there are contexts in which cash-gifts can reflect thoughtfulness and consideration for the recipient). So consider two closely-related examples: apologies and wedding toasts. Both of these things are supposed to signal some genuine emotional commitment: contrition in the first case, fondness or friendship in the second. Yet, there are now companies in existence that allow you to buy bespoke, custom-designed apologies and wedding toasts (Sandel discusses examples in the book). Surely there is something wrong about this? Surely signals of genuine emotional commitment ought not be commercialised in this fashion?

That’s one example of something money can buy but probably shouldn’t. Here’s another. Previously, I gave the example of college grades as something that money can’t buy. This is because college grades are purely honorific goods. But what about so-called ‘honorary’ degrees or places at college? These are slightly fuzzier cases, particularly in elite private universities in the US. Most of those universities want academically (and otherwise) high-achieving students; and want to be beacons of high academic and scholarly standards; but they also need money to survive (to pay for staff, admin, upkeep of buildings etc.). A significant portion of this money comes from wealthy donors (usually alumni). Universities often pay homage to such donors in two ways: (i) by conferring ‘honorary’ degrees upon them; and/or (ii) through ‘legacy preferences’ in the admissions process (i.e. preferring offspring of alumni). In this sense, they could be said to have commercialised both processes.

Of course, the universities never say that this is what they are doing. They never say that they are rewarding so-and-so with an honorary degree because he/she just donated a large sum of money to the university: they always say it is because of their contribution to business or public life or something like that. Likewise, universities tend not to brag about their willingness to fix, relax or flexibly interpret admissions-standards for the benefit of the children of wealthy donors. But this silence is telling. To Sandel it indicates an awareness of the fact that commercialisation damages the value of the goods in question.

For what it is worth, this seems right to me. I don’t teach at an elite US university, but my experience of working at universities in the UK and Ireland suggests that money does change things when it comes to college places and degrees. This might be one reason why there is (and was) such resistance to student fees in both countries, and why there is concern among academics about the obsession (in both countries) with raising money by recruiting overseas students who pay higher fees. What’s happening here is that we have goods that really ought to be purely honorific, but which have (for whatever reason) become partly commercialised. The result is devaluation.


3. The Two Arguments Against Commercialisation: Fairness and Corruption
We have enough examples now. What about arguments? What are the normative principles that seem to motivate our resistance to commercialisation in all of these cases? Sandel thinks that there are two such principles and, consequently, two main arguments against commercialisation. The first is a corruption argument:

Corruption Argument: Commercialising X (where X is some good, service, status etc.) will corrupt the social/moral value of X.

This has been the most prevalent argument in the preceding discussion. We see it at work in the analysis of honorific and friendship-related goods. Recall how I said that if you put Nobel Prizes up for sale you would completely eliminate their value. This is because commercialisation corrupts the very essence of the prize. The same goes for the commercialisation of friendship and signals of friendship, only in those cases the corruption is not as complete.

Though the corruption argument dominates, there is another argument implied by some of the preceding discussion. This is a fairness argument:

Fairness Argument: Commercialising X (where X is some good, service, status etc.) will result in the unfair allocation/distribution of X among a relevant population.

Sandel suggests that fairness arguments are common in the case of honorific goods. Indeed, one could argue that part of the rationale behind such goods is that they are things that society thinks should be allocated/distributed on the basis of merit or ability, not on the basis of wealth. If you commercialise such goods (even partly), you bias the allocation process in favour of the wealthy. This is unfair. The same is true in other, non-honorific contexts. For example, many people oppose the commercialisation of healthcare for reasons of unfairness. Healthcare should be allocated on the basis of need, not wealth.

These two arguments differ in their strength. The fairness argument is contingent/empirical in nature. It claims that commercialisation biases allocation in the wrong direction because the true basis for allocation (merit/ability/need) does not correlate perfectly with wealth. This is likely to be true, but it may sometimes be false. For instance, it may be that the wealthy are the ones with the most ability (for whatever reason). Similarly, if one is concerned about fairness, there may be regulatory or procedural safeguards that could be put in place to protect against unfair allocations. Thus, for instance, in the case of college places you could correct for the unfair impact of wealthy candidates by increasing the number of scholarship positions to the less well off. In this way, the admissions process could become a small-scale wealth redistribution program: wealthy students could subsidise the education of poorer ones. That might be fairer than any alternative system that ignored wealth.

The corruption argument is different. It is conceptual/metaphysical nature. It claims that there is something about the value of a particular good or service that would be corrupted by commercialisation. Thus, to the extent that we care about that value, we should not be in any way tempted by commercialisation. No amount of regulatory intervention or procedural safeguarding will belay these fears. The commercialisation process is inherently corrupting of the value in question. This is more akin to an ‘in principle’ objection to commercialisation.

Given this greater degree of strength, it is no surprise to find that Sandel dedicates a lot of time to fleshing out and defending the corruption argument. I’ll take a look at this in a future post.

Is Transnational Surrogacy Exploitative? (1) Kirby's Argument

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Surrogacy Hostel - India

Surrogacy is the practice whereby a commissioning parent (or parents) procures the services of a surrogate who will carry a child to term on their behalf. For obvious reasons, all surrogates are thus biologically female. There are two main categories of surrogacy: (i) genetic, whereby a male commissioning parent impregnates the surrogate (typically via artificial insemination); and (ii) gestational, whereby the commissioning parent(s) provide (or procure) an embryo for implantation in the surrogate. The latter has a number of distinct sub-varieties, each varying depending on how exactly the embryo is procured. There are also distinctions to be drawn between altruistic surrogacy, which is not done for profit, and commercial surrogacy, which is.

India has become a major international destination for commercial surrogacy. The practice is legal there since 2002, and one of the goals of the Indian government is to make India a prime destination for medical tourism. Adding to its attraction is the fact that surrogacy is significantly cheaper in India than it is in many Western countries (at least, in those Western countries that have legalised commercial surrogacy). For example, the total cost of a surrogacy arrangement in the US, including medical expenses and surrogate’s fee, is estimated to range from $50K-$150K, whereas the total cost in India, including travel expenses for the commissioning parents, is approximately $25K-$30K. As such, it is common for commissioning parents in high income countries to take advantage of the lower costs in places like India.

The question I want to consider over the next couple of posts is whether such transnational gestational surrogacy (TGS) arrangements are exploitative. I’ll do so by reviewing some recent papers on this topic by Jeffrey Kirby and Stephen Wilkinson. I start today with Kirby’s paper ‘Transnational Gestational Surrogacy: Does it have to be exploitative?’, which appeared in the American Journal of Bioethics in 2014. Kirby argues that TGS probably is exploitative in its current form, but that it need not be.
Note: throughout this post and its sequels, much of the focus will be on India. This is because India is a relatively well-studied example, with a number of empirical and ethnographic reports available about the practice and the lives of surrogates in that country. But it is not the only destination for TGS and the evaluation undertaken here could be applied to other destinations as well.


1. What is exploitation? Kirby’s Three Pronged Framework
We start by looking at the concept of exploitation. Exploitation is morally significant. If I exploit you, then I have wronged you and may owe you some duty of repair. Similarly, the fact that a relationship or transaction is exploitative is usually taken to be a reason (even if not a decisive reason) for deeming that relationship or arrangement impermissible (we could get all philosophical and call it a pro tanto or prima facie reason, but we won’t bother).

But then when is a relationship or transaction exploitative? This is something that has been much debated over the years. The basic gist of the idea is that a transaction is exploitative if you take unfair advantage of another person (or group of persons). This usually means that you profit at their expense, though sometimes exploitative transactions can be mutually advantageous. Indeed, this may be true of TGS transaction since in such arrangements both the commissioning parents and the surrogate are gaining (to at least some degree). What makes the transaction exploitative in such cases (if it is at all) is determined by reference to how the benefits/burdens of the transaction are distributed between the parties.

One of the nice features of Kirby’s article is his review of previous attempts to define exploitation. I’m not going to review his review. Instead, I’ll skip right to the end where Kirby offers his own, somewhat complex, framework for evaluating whether or not an arrangement is exploitative. The framework tries to capture the moral insights from previous definitional efforts (including liberal, Marxist and social justice definitions). It identifies three conditions which can independently determine whether exploitation arises. I’ll quote from the article at this point:

Kirby’s Exploitation Framework: “In a transaction between individuals/parties, exploitation is constituted by the taking of unfair advantage, whereby one individual/party gains at the expense of another individual/party who is relatively disadvantaged on economic, social and/or political grounds. A finding of exploitation is not precluded by a “better” transaction outcome for the disadvantaged individual/party than the status quo ante, and transactions that produce significant mutual advantage may be exploitative to an individual/party. The taking of exploitative unfair advantage is demonstrated by the meeting of one or more of the following three exploitation conditions, each of which is sufficient for a finding of exploitation:

Exploitation Condition 1: It is unlikely (improbable) that the disadvantaged individual would voluntarily choose to enter into, and continue in, the transaction on the basis of her/his full knowledge and understanding of its anticipated burdens and benefits. [Note: members of the relevant group or community of disadvantaged individuals will deliberate together to determine whether this condition is met].

Exploitation Condition 2: The disadvantaged individual is unable to make a meaningful decision about whether to enter into, and continue in, the transaction; that is, the choice is not well-informed and/or is coercive in nature (the latter, at least to the extent that the individual could not really choose to do otherwise).

Exploitation Condition 3: The interests of the disadvantaged individual are not taken into account in the development of the transaction and members of the disadvantaged individual’s social group/community do not participate in, and significantly inform, decision making about the transaction’s (initial and ongoing) terms and labor-related conditions.”

(Kirby 2014, 26-27)

There is a lot going on in this. I suggest re-reading it a couple of times to grasp its full import. One thing worth noting in particular is how Kirby ties his framework to the views of the typical individuals in the relevant community of disadvantage. There is an almost explicitly consultative dimension to it: in order to determine whether the conditions of exploitation have been met, we need to consult with (or at least consider the views of) the people who may or may not be exploited by the transaction. This consultative dimension is very clear in the first and third conditions.

Anyway, with the framework in place, we can move on to Kirby’s main argument which is that, at present, TGS is indeed exploitative in India, but that this need not always be the case. He grants that Indian surrogates are members of a disadvantaged group: they come from a developing nation and have much lower average incomes than Western commissioning parents. He then questions whether each of the three conditions is met in the case of the typical Indian surrogacy arrangement. Let’s go through each step of the analysis.


2. Is First Exploitation Condition met in the case of Indian Surrogates?
The first condition is the most difficult to assess. It states that a transaction is exploitative if the disadvantaged party would be unlikely to enter into it if they were fully aware of the benefits and burdens involved. This means we have to work out what these benefits and burdens are. This requires some engagement with the empirical studies done on the lives of surrogates in India, followed by a complex weighting of the evidence drawn from these studies.

The benefits of surrogacy (from the perspective of the surrogate) are relatively clear. The surrogate receives a considerable amount of money for their services. Chang and Jaiswal estimate that the average fee ranges from $6K-$10K. A study in the Lancet in 2012 put the figures at $5K-$7K. To Western eyes, this may not seem like much, but the significance of these figures must be appreciated within the relevant economic context. Most Indian surrogates are women from poor rural communities. The average annual income for such women, according to the Lancet report, is in the region of $300. So the fee represents (roughly) 16 to 33 times the average income.

Amrita Pande has conducted a number of interviews with surrogates who describe the benefits of this money in terms of how it enhances their material and social circumstances, e.g. paying for education, housing, healthcare, business debts, and so on. Interestingly, some women don’t conceive of the benefits purely in terms of the instrumental value of the money. Some value becoming a surrogate because it temporarily removes them from other workplaces in which accidents and injuries are common (Humbyrd 2009).

So, as I say, the benefits seem relatively clear. What about the burdens? As you might expect — given that Kirby’s article was published in a bioethics journal — he is quite thorough when it comes to this issue, particularly the medical procedure and its health risks and side effects. He divides these burdens into two main classes: (i) physical and (ii) psychological.

The physical burdens arise from the hormonal manipulation that is used to prepare the surrogate for implantation; the process of embryo transfer; and the common risks associated with pregnancy and giving birth. Birth control pills are often used to sync the cycles of the commissioning woman and the surrogate. Gonadotropin-releasing hormone (GnRH) is used to prevent premature ovulation. This is usually well-tolerated but has known side effects including hot flashes, fatigue, headaches, nausea, irritability. Estrogen tablets are used to thicken the uterine lining prior to implantation. Progesterone capsules (or suppositories or injections) are used before embryo transfer and during the early weeks of pregnancy. Both have well-known side effects including bloating, irritability and breast soreness. There are also cumulative risks if you undergo the process several times. The actual process of embryo transfer involves some (usually mild) physical discomfort (a soft catheter is inserted into the uterus). If several embryos are transferred, there is a risk of multiple gestation and preterm births. Becoming pregnant and giving birth also carries risks, including a risk of mortality, but these risks are relatively low given the high standard of care provided by surrogacy clinics. Of greater significance, might be the frequent use of caesarian sections to facilitate the scheduling needs of the clinics and commissioning parents. Finally, Kirby notes a recent study by Stewart et al. (2013) which suggests that women who undergo IVF are at a slightly elevated risk of ovarian tumors, but these tumors are ‘of low malignant potential’.

The psychological burdens are complex, and arise from cultural factors and personal circumstances. One significant feature of surrogacy in India is that some surrogates move into hostels that are run by the fertility clinics. This separates them from their families (all these women must have had at least one child of their own) for extended periods of time. There is also a risk of social stigmatisation as some people equate surrogacy with marital infidelity or prostitution. Indeed, Pande notes that this is one reason why women move to surrogacy hostels: to conceal their pregnancies from members of their local community. There is also the psychological burden that arises from ‘giving up’ the child at the end of the transaction, due to attachment that arises during pregnancy. This is sometimes thought to be lessened in the case of gestational surrogates since there is no genetic connection between the mother and the infant. But Pande argues that this may not be true in parts of India where the significance of genetics is poorly understood and the primary attachment-concept is that of ‘shared bodily substances’ (e.g. blood through the placenta or breast milk). These psychological risks could be mitigated through counseling and pre-screening, but such services are not usually available to women in these settings.

The benefits and burdens are summarised in the table below.

What conclusion should we draw from this description of the benefits and burdens? One of the frustrating things about Kirby’s article is his failure to provide quantitative estimates for the various health risks and side effects. I’m sure these are available somewhere, and they would really help with weighting the benefits relative to the burdens. But, in any event, Kirby doesn’t want to engage in that exercise. He thinks the description of the benefits and burdens reveals just how difficult it would be to determine whether the first exploitation condition is met. There are clearly benefits here — ones that are appreciated by women in the relevant communities and could be potentially transformative — and there are also clearly burdens — some of which are unique to India, some of which are common to all surrogates. He thinks it would be really difficult for him (an outsider) to say whether a properly informed woman would choose to become a surrogate given those benefits and burdens. Fortunately, he doesn’t have to because the other two conditions provide independent grounds for exploitation.

That’s a somewhat underwhelming and disappointing conclusion. My guess — and it is only a guess — is that there would be at least some women for whom the benefits would outweigh the burdens.


3. Is the Second Exploitation Condition met in the case of Indian Surrogates?
The second condition says that a transaction is exploitative if the decision to enter into it is not the product of meaningful choice. This is cashed out by further reference to how ill-informed or coercive in nature the decision might have been.

Kirby thinks this condition is met in the case of the typical woman from rural western India. It doesn’t appear that women are actively coerced into these transactions (though some have argued the size of the fee could have a paradoxically coercive effect). But it does appear that they are ill-informed. Indeed, the available evidence suggests that such women are not provided with much information and often don’t understand the nature of the transaction they are getting into. Pande’s investigations and interviews are a major source of evidence in this regard.

She discovered that in Anand (one of the main regions in India’s TGS trade), little information was provided to the women and no attempt was made to ensure that they understood this information. Perhaps most damningly, the standard contract was written in English, a language that none of the women she interviewed could read. Her interviewees, in turn, revealed the paucity of information and understanding. One woman, Gauri, said:

‘…the only thing they told me was that this thing is not immoral, I will not have to sleep with anyone, and that the seed will be transferred into me with an injection…they also said that I have to keep the child inside me, rest for the whole time, have medicines on time, and give up the child.’ 

(Pande 2010, 976-977 - taken from Kirby 2014)

Given the preceding description of the benefits and burdens associated with surrogacy, you can plausibly argue that this is insufficient for truly informed consent and meaningful choice. To be sure, poor understanding of the risks and benefits of medical procedures are common in many Western contexts too, but from this description it seems like the attempt at informed consent for the surrogates in western India falls well below the desired level.

There are some potential counterarguments. The practice in India is for surrogacy brokers (“middle-women”) to go door-to-door recruiting potential surrogates. Most women refuse, suggesting that the women who do become surrogates may have had the ability to do otherwise. But Kirby thinks this is insufficient to displace worries about a lack of informed consent. Similarly, there are some women who undergo the process repeatedly. They have presumably acquired some experiential knowledge that renders their decisions more meaningfully ‘informed’. But Kirby thinks that ‘this does not preclude the possible influence of coercive factors such as “brainwashing” and/or escalated financial inducement’ (2014, 29). Finally, someone of a libertarian persuasion could argue that these women have a negative right not to be interfered with when it comes to choosing to enter a surrogacy transaction. But Kirby dismisses this on the grounds that a pure negative freedom is insufficient for a genuinely autonomous decision: what matters is who controls the choice-context.

I’m broadly in agreement with this. I think the informed consent angle (in particular, the language issue) needs to be addressed. That said, as per my previous comment, I wouldn’t rule out the possibility that some women make an informed decision. In this regard, I am slightly more persuaded by the possibility of experiential knowledge sufficing for an informed decision than Kirby appears to be.


4. Is the Third Exploitation Condition met in the case of Indian Surrogates?
This brings us to the last exploitation condition. This one states that a transaction is exploitative if the disadvantaged individual/community has no real say in the terms and conditions that govern the transaction. This provides the most plausible exploitation-argument against TGS in India. Why? Because it seems pretty clear that surrogates have no say in setting the terms and conditions of these transactions. It is the fertility clinics, medical practitioners, surrogacy brokers, government and commissioners who have all the bargaining power. This seems clearly evidenced by the frequent use of caesarian sections to suit the scheduling requirements of the clinics and commissioners; by the drafting of contracts in a language that the women cannot read; by the use of surrogacy hostels; and by the failure to provide appropriate counseling and support.

The Assisted Reproductive Technology Bill 2014 (which as far as I can tell is still merely proposed rather than actual law) does attempt to introduce additional regulatory safeguards. In particular, it tries to make it a bit more difficult for foreign commissioning parents to procure surrogates. But, as Kirby notes, it is not a progressive piece of legislation. It requires consent from the husbands of surrogates, and there is no evidence to suggest that women from the relevant communities have been consulted. There have also been earlier reforms that have not protected the interests of the women involved. For example, a 2010 reform reduced the front-loading of the surrogate’s fee, which meant the surrogate would not be fully paid if they lost their pregnancies at a later stage.

For what it is worth, I agree with Kirby on this point: the lack of bargaining power on the part of the women affected by these transactions would seem to provide a pretty compelling argument against them.


5. So what can be done?
So Kirby thinks that TGS (as practiced in India) is exploitative because conditions 2 and 3 of his framework are met. He has thus provided a moral argument against TGS. But the argument is highly contingent in nature. It does not say that TGS is ‘in principle’ exploitative, merely that it is exploitative in its current form. This suggests that the system could be reformed.

And, indeed, Kirby does suggest three general categories of reform which could render these transactions non-exploitative. They are:

Public Education and Enabled Choice: A ‘comprehensive public education program’ could be introduced to combat myths and misinformation about surrogacy and to reduce the stigma that might attach to surrogates. Women thinking of becoming surrogates could be ‘required to attend a government-sponsored educational workshop’ that will explain the benefits and burdens of the transaction to them. Neutral ‘advocate-navigators’ could be recruited and trained to help the women through the process (Kirby 2014, 30).

Enhanced Protections: There could be enhanced regulatory protections. This could include setting a maximum delivery age of 34 for potential surrogates (reduces potential complications), limiting the number of embryo transfers to prevent the risk of multiple gestations, limiting the maximum number of surrogate pregnancies to reduce risk of multiple rounds of IVF, and ensuring that the safest hormone protocols are used. There could also be screening evaluations and counseling available to minimise the psychological burdens.

Empowerment: Efforts could be made to enhance the agency and bargaining power of surrogates. This could include consultation and deliberative engagement with the relevant communities in order to develop standard terms and conditions for surrogacy contracts; ensuring that remuneration is fair by front-loading payments to surrogates; and setting a price floor (i.e. minimum wage). It could also include ‘high quality educational programs that provide training for local, decent-wage jobs’ for surrogates during their pregnancies, as opposed to the existing system of surrogacy hostels providing (some) English and computer courses, which are primarily for the benefit of the commissioning parents who wish to communicate with surrogates (Kirby 2014, 31).

Many of these reforms sound commendable, and may genuinely help to remove some of the exploitative taint from surrogacy transactions. I have only two observations. First, note that some of these reforms involve placing additional burdens on the disadvantaged women, e.g. mandatory education and psychological screening. We might want to question that. As I mentioned at length in my posts on sexual consent, burdens of this sort represent a tradeoff between positive and negative autonomy: extra burdens mean we protect negative autonomy to a greater degree than positive autonomy. This may be entirely appropriate, given the risks associated with becoming a surrogate and the potential exploitation, but we should acknowledge that the tradeoff is being made.

Second, and maybe more importantly, many of the mooted reforms would have the effect of increasing the cost of surrogacy in India. Kirby concedes as much in his discussion. Raising costs may have some perverse effects on surrogates in India. All transactions between people in high income countries and people in low income countries have an exploitative element to them: they involve people from richer countries taking advantage of lower costs in poorer countries. Some people find this appalling; some think it is good because it aids economic growth and provides better alternatives for the people in low-income countries. I don’t know where you would come down on this issue, but in either case the danger with raising costs in India is that it might drive the market for TGS to another cut-price jurisdiction. This could deprive women in India of income and push the problem onto another disadvantaged population. Kirby thinks this possibility could be mitigated by ensuring the costs don’t go too high. But his discussion mainly focuses on ensuring a price differential between India and high income countries; it doesn’t really focus on the price differential between India and other low income countries. Of course, you could argue that this is okay because the reforms in India are morally justified, and any other jurisdiction would simply be obliged to introduce similar reforms. And I would agree with that, but this reform effort is likely to be a drawn out process (Note: this depends entirely on whether other jurisdictions would be willing to legalise commercial surrogacy in the same way; I’m not sure how likely this is given that there are numerous other objections to the practice).

In conclusion, TGS as practiced in India is probably exploitative. Although it is difficult to weigh the relative benefits and burdens of becoming a surrogate, it seems pretty clear from the available evidence that surrogates in India are poorly informed about the transactions they are entering into and lack bargaining power in shaping the terms and conditions of those transactions. Reforms could be introduced to improve the situation, but these will involve trading-off different values and may not improve the overall quality of life for surrogates in India because of the dynamics of transnational capitalism.

Polanyi's Paradox: Will humans maintain any advantage over machines?

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(Previous Entry)

There is no denying that improvements in technology allow machines to perform tasks that were once performed best by humans. This is at the heart of the technological displacement we see throughout the economy. The key question going forward is whether humans will maintain an advantage in any cognitive or physical activity. The answer to this question will determine whether the future of the economy is one in which humans continue to play a relevant part, or one in which humans are left behind.

To help us answer this question it is worth considering the paradoxes of technological improvement. It is truly amazing that advances in artificial intelligence have allowed machines to beat humans at cognitive games like chess or Jeopardy!, or that cars can now be driven around complex environments without human assistance. At the same time, it is strange that other physical and cognitive skills have been less easy for machines to master, e.g. natural language processing or dextrous physical movements (like running over rough terrain). It seems paradoxical that technology could be so good at some things and so bad at others.

Technologists and futurists have long remarked on these paradoxes. Moravec’s paradox is a famous example. Writing back in the late 80s, Hans Moravec (among others) noted the oddity in the fact that high-level reasoning took relatively few computational resources to replicate, whereas low-level sensorimotor skills took far more. Of course, we have seen exponential growth in computational resources in the intervening 30 years, so much so that the drain on computational resources may no longer be an impediment to machine takeover of these tasks. But there are other problems.

This brings us to the (very closely related) ‘Polanyi’s Paradox’, named in honour of the philosopher and polymath Michael Polanyi. Back in 1966, Polanyi wrote a book called The Tacit Dimension, which examined the ‘tacit’ dimension to human knowledge. It argued that, to a large extent, human knowledge and capability relied on skills and rulesets that are often beneath our conscious appreciation (transmitted to us via culture, tradition, evolution and so on). The thesis of the book was summarised in the slogan ‘We can know more than we can tell’.

Economist David Autor likes Polanyi’s Paradox (indeed I think he is the one who named it such). He uses it to argue that humans are likely to retain some advantages over machines for the foreseeable future. But in saying this Autor must confront the wave of technological optimism which suggests that advances in machine learning and robotics are likely to overcome Moravec and Polanyi’s paradoxes. And confront it he does. Autor argues that neither of these technological developments is as impressive as it seems and that the future is still bright for human economic relevance.

I think he might be wrong about this (though this doesn’t make the future ‘dark’ or ‘grim’). In the remainder of this post, I want to explain why.


1. Two Ways of Overcoming Polanyi’s Paradox
The first thing I need to do is provide a more detailed picture of Autor’s argument. Autor’s claim is that there are two strategies that technologists can use to overcome Polanyi’s Paradox, but if we look to the current empirical realities of these two strategies we see that they are far more limited than you might think. Consequently, the prospects of machine takeover are more limited than some are claiming, and certain forms of machine-complementary human labour are likely to remain relevant in the future.

I’m going to go through each step in this argument. I’ll start by offering a slightly more precise characterisation of Polanyi’s Paradox:

Polanyi’s Paradox: We can know more than we can tell, i.e. many of the tasks we perform rely on tacit, intuitive knowledge that is difficult to codify and automate.

I didn’t say this in the introduction but I don’t like referring to this as a ‘paradox’ since it doesn’t involve any direct self-contradiction. It is, as Autor himself notes, a constraint on the ease of automation. The question is whether this constraint can be bypassed by technological advances.

Autor claims that there are two routes around the constraint, both of which have been and currently are being employed by engineers and technologists. They are:

Environmental Control: You control and manipulate the environment in such a way that it is easier for machines to perform the task. This route around the constraint acknowledges that one of the major problems for machines is their relative inflexibility in complex environments. They tend to follow relatively simple routines and cannot easily adapt to environmental changes. One solution to this is to simplify the environment.

Machine Learning: You try to get the machine to mimic expert human judgment (which often relies on tacit knowledge and heuristics). You do this by using bottom-up machine-learning techniques instead of top-down programming. The latter require the programmer to pre-define the ruleset the computer will use when completing the task; the former gets the computer to infer its own rules from a series of trials on a large dataset.

We are all familiar with examples of both methods, even if we are occasionally unaware of them. For instance, a classic example of environmental control is the construction of roads for automobiles (or train-tracks for trains). Both have the effect of smoothing out complex environments in order to facilitate machine-based transport. Machine learning is a more recent phenomenon, but is used everywhere in the Big Data economy, from your Facebook newsfeed to Netflix recommendations.
Hopefully, you can see how both methods are used to bypass Polanyi’s Paradox: the first one does so by adapting the environment to fit the relative ‘stupidity’ of the machine; the second one does so by adapting the machine to the complexity of the environment.


2. The Limitations of Both Approaches
This brings us to the next step in Autor’s argument: the claim that neither method is as impressive or successful as we might be inclined to think. One reason why we might think Polanyi’s Paradox is a temporary roadblock is because we are impressed by the rapid advances in technology over the past thirty years, and we convinced that exponential growth in computing power, speed and so forth is likely to continue this trend. Autor doesn’t deny these advances, but is more sceptical about their long-term potential.

He defends this argument by considering some of the leading examples of environmental control and machine learning. Let’s start with environmental control and take the example of Amazon’s Kiva robots. As you may know, Amazon bought Kiva Systems in 2012 in order to take full advantage of their warehousing robots. You can see them at work in the video below.



Kiva robots work in an interesting way. They are not as physically dextrous as human workers. They cannot navigate through the traditional warehouse environment, pick items off shelves, and fill customer orders. Instead, they work on simplifying the environment and complementing the work of human collaborators. Kiva robots don’t transport or carry stock through the warehouse: they transfer shelving units. When stock comes into the warehouse, the Kiva robots bring empty shelving units to a loading area. Once in the loading area, the shelves are stocked by human workers and then transported back by the robots. When it comes time to fill an order, the process works in reverse: the robots fetch the loaded shelves, and bring them back to the humans, who pick the items off the shelf, and put them in boxes for shipping (though it should be noted that humans are assisted in this task by dispatch software that tells them which items belong in which box). The upshot is that the Kiva robots are limited to the simple task of moving shelving units across a level surface. The environment in which they work is simple.

Something similar is true of the much-lauded self-driving car (according to Autor anyway). Google’s car does not drive on roads: it drives on maps. It works by comparing real-time sensory data with maps which have been constructed to include the exact locations of obstacles and signaling systems and so forth. If there is a pedestrian, vehicle or other hazard, the car responds by ‘braking, turning and stopping’. If something truly unexpected happens (like a detour), the human has to take over. In short, the car requires simplified environments and is less adaptive than it may seem.

Autor pours similar amounts of cold water on the machine learning revolution. He is a little less example-driven in this part of his argument. He focuses on describing how machine learning works and then discusses a smattering of examples like search recommendations from Google, movie recommendations from Netflix and IBM’s Watson. I’m going to quote him in full here so you can get a sense of how he argues the point:

My general observation is that the tools [i.e. machine learning algorithms] are inconsistent: uncannily accurate at times; typically only so-so; and occasionally unfathomable… IBM’s Watson computer famously triumphed in the trivia game of Jeopardy against champion human opponents. Yet Watson also produced a spectacularly incorrect answer during its winning match. Under the category of US Cities, the question was, “Its largest airport was named for a World War II hero; its second largest, for a World War II battle.” Watson’s proposed answer was Toronto, a city in Canada. Even leading-edge accomplishments in this domain can appear somewhat underwhelming… 

(Autor 2015, 26).

He goes on then to note that we are still in the early days of this technology — some are bullish about the prospects, others are not — but he thinks there may still be ‘fundamental problems’ with the systems being developed:

Since the underlying technologies — the software, hardware and training data — are all improving rapidly (Andrespouos and Tsotsos 2013), one should view these examples as prototypes rather than as mature products. Some researchers expect that as computing power rises and training databases grow, the brute force machine learning approach will approach or exceed human capabilities. Others suspect that machine learning will only ever get it right on average, while missing many of the most important and informative exceptions… Machine-learning algorithms may have fundamental problems with reasoning about “purposiveness” and intended uses, even given an arbitrarily large training database…(Grabner, Gall and Van Gool 2011). One is reminder of Carl Sagan’s (1980, p 218) remark, “If you wish to make an apple pie from scratch, you must first invent the universe.” 

(Autor 2015, 26)

Again, the upshot being that the technology is more limited than we might think. He goes on to say that there will continue to be a range of skilled jobs that require human flexibility and adaptability and that they will continue to complement the rise of the machines. His go-to example is that of a medical support technician (e.g. radiology technician, nurse technician, phlebotomist). These kinds of jobs require physical dexterity, decent knowledge of mathematics and life sciences along with analytical reasoning skills. The problem, as he sees it, is not so much the continuing relevance of these jobs but the fact that our educational systems (and here he is speaking of the US) are not well set-up to provide training for these kinds of workers.


3. Is Autor Right?
As I mentioned at the outset, I’m not convinced by Autor’s arguments. There are four main reasons for this. The first is simply that I’m not sure that he’s convinced either. It seems to me that his arguments in relation machine learning are pretty weak and speculative. He acknowledges that the technology is improving rapidly but then clings to one potential limitation (the possible fundamental problem with purposiveness) to dampen enthusiasm. But even there he acknowledges that this is something that only ‘may’ be true. So, as I say, I’m not sure that even he would bet on this limitation.

Second, and more importantly, I have worries about the style of argument he employs. I agree that predictions about future technologies should be grounded in empirical realities, but there are always dangers when it comes to drawing inferences from those realities to the future. The simplest one — and one that many futurists will be inclined to push — is that Autor’s arguments may come from a failure to understand the exponential advances in technology. Autor is unimpressed by what he sees, but what he sees are advances from the relatively linear portion of an exponential growth curve. Once we get into the exponential takeoff phase, things will be radically different. Part of the problem here also has to do with how he emphasises and interprets recent developments in technology. When I look at Kiva robots, or the self-driving car or IBM’s Watson, I’m pretty impressed. I think it is amazing that technology that can do these things, particularly given that people used to say that such things were impossible for machines in the not-to-distant past. With that in mind, I think it would be foolish to make claims about future limitations based on current ones. Obviously, Autor doesn’t quite see it that way. Where I might argue that his view is based on a faulty inductive inference; he might argue (I’m putting words in his mouth, perhaps unfairly) that mine is unempirical, overly-optimistic and faith-based. If it all boils down to interpretation and best-guess inferences, who is to say who’s right?

This brings me to my third point, which is that there may be some reason to doubt Autor’s interpretation if it is based (implicitly or otherwise) on faulty assumptions about machine replacement. And I think it is. Autor seems to assume that if machines are not as flexible and adaptable as we are, they won’t fully replace us. In short, that if they are not like us, we will maintain some advantage over them. I think this ignores the advantages of non-human-likeness in robot/machine design.

This is something that Jerry Kaplan discusses quite nicely in his recent book Humans need not apply. Kaplan makes the point that you need four things to accomplish any task: (i) sensory data; (ii) energy; (iii) reasoning ability and (iv) actuating power. In human beings, all four of these things have been integrated into one biological unit (the brain-body complex). In robots, these things can be distributed across large environments: teams of smart devices can provide the sensory data; reasoning and energy can be centralised in server farms or on the ‘cloud’; and signals can be sent out to teams of actuating devices. Kaplan gives the example of a robot painter. You could imagine a robot painter as a single humanoid object, climbing ladders and applying paint with a brush; or, more likely, you could imagine it as a swarm of drones, applying paint through a spray-on nozzle, controlled by some centralised or distributed AI programme. The entire distributed system may look nothing like a human worker; but it still replaces what the human used to do. The point here is that when you look at the Kiva robots, you may be unimpressed because they don’t look or act like human workers, but they may be merely one component in a larger robotic system that does have the effect of replacing human workers. You draw a faulty inference about technological limitations by assuming the technology will be human-like.

This brings me to my final reason, which may be little more than a redressing of the previous one. In his discussion, Autor appears to treat environmental control and machine learning as independent solutions to Polanyi’s Paradox. But I don’t see why they have to be independent. Surely they could work together? Surely, we can simplify the environment and then use data from this simplified environment to train machines to be work smarter in those simplified environments? If such synergy is possible it might further loosen the constraint of Polanyi’s Paradox.

In sum, I would not like to exaggerate the potential impacts of technology on employment, but nor would I like to underestimate them. It seems to me that Autor’s argument tends toward underestimation.