Is there Trouble with Algorithmic Decision-making? Fairness and Efficiency-based Objections

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Tal Zarsky’s work has featured on this blog before. He is an expert in the legal aspects of big data and algorithmic decision-making. He recently published a paper entitled “The Trouble with Algorithmic Decision-Making” in which he tries to identify, categorise and respond to some of the leading objections to the use of algorithmic decision-making processes. This is a topic that interests me too, so I was eager to see what he had to say.

This post is my attempt to summarise and comment on some of the key themes from Zarsky’s paper. Its primary aim is to construct a diagram which will categorise the main objections found within Zarsky’s paper. Its secondary aim is to consider Zarsky’s responses to each of these objections. This will not be an exhaustive treatment of the core issues; it will be a high-level summary only. In this respect, it might be useful to people who are new to this debate.


1. What is interesting about algorithmic decision-making?
In one sense, algorithms are a mundane phenomenon: they are simply sets of instructions for taking an input and producing an output. There is probably some trivial sense in which all decision-making is algorithmic. After all, whenever you make a decision — say a decision about what food to buy — you are taking some set of inputs — e.g. information about your level of hunger, financial resources, food preferences and so on — and using them to produce an output — i.e. a decision about what you will actually buy. In most cases, the ruleset that you use to produce the output is implicit, but you could probably reconstruct it if you put enough thought into it. (Note: some people in the philosophy of mind might dispute the claim that all decision-making is algorithmic, but I won’t engage with that point of view in this post).

Given this mundanity and triviality, one may wonder why anyone at all is interested in algorithmic decision-making. The answer, of course, lies in the technology used in the more explicit forms of algorithmic decision-making that now govern our lives. With the rise of surveillance and big data, there are increasing opportunities for computer-coded algorithms to take advantage of large datasets to produce (potentially) socially useful outputs. Recognition of this fact, has led companies and governments to incorporate algorithmic decision-making into their pre-existing decision-making processes. There are so many examples of this nowadays that it is hard to pick just one.

The one Zarsky settles upon in his article is the use of credit-scoring algorithms by banks and other financial services providers. These algorithms use financial (and other) data to construct credit-scores. These scores are supposed to tell the banks the likely credit-risk of any particular customer. The most popular of these systems in the US is the FICO rating system, which relies on a proprietary (i.e. legally protected) algorithm and can be decisive in determining whether or not a person can access credit. Similar scoring systems are used in other countries, many of them also relying on the FICO system (at least in part).

One can make a good case for the use of such algorithms: they are quick, cost-effective ways to take advantage of large swathes of information. There is limited scope for humans to knit together this information in a useful way. Nevertheless, many people are disturbed and think these systems are deeply problematic. Zarsky suggests that these objections fall into two main categories (he admits that these are not exhaustive, but thinks they address the main areas of concern):

Efficiency-Based Objections: These objections target the claims often made on behalf of these systems by their creators, namely that they are more effective and accurate than human decision-makers would be.

Fairness Based Objections: These objections argue that algorithmic decision-making processes are unfair in one or more respects. The unfairness here can be substantive (i.e. concerned with the differential impact of the process on different groups of people) or procedural (i.e. concerned with the way in which the process engages with the people who are ultimately affected).

Of course, these kinds of objections can be levelled against any decision-making system. This raises the question: what is so special about algorithmic decision-making? The answer to that might be “nothing”, but there are two properties of algorithmic decision-making that are alleged to make it unique:

Automation: Algorithmic decisions can sometimes be made with no or limited human input and oversight.

Opacity: Algorithmic decisions can lack the transparency we desire, either because the algorithms are protect by secrecy laws or because of their inherent complexity.

One Zarsky’s goals is to see whether automation and opacity increase the potency of the efficiency and fairness-based objections, and whether transparency can help to address some of the concerns.
Acknowledging all this allows us to construct a diagram of the potential objections to algorithmic decision-making. As you can see below, there are two main branches (efficiency and fairness) which then sub-divide into a number of more specific objections. We’ll work our way through the various branches over the remainder of this post.

2. Efficiency-Based Objections
We start with efficiency-based objections. These are both the easiest to understand and the easiest to analyse. An efficiency-based objection holds that an algorithmic decision-making process is problematic due to inaccuracy. In the case of credit-scoring, the argument would be that the credit-scoring system does not provide an accurate representation of the likely credit-risk of the particular customer. There is some evidence that this is true. The bond-rating conducted by agencies like Fitch, Moody and Standard and Poor prior to the 2008 financial crisis were infamously inaccurate. There is also evidence that some credit-scoring systems draw faulty inferences from certain types of behaviour. I commented on one example — seeking more information about your mortgage being an indicator of credit risk as opposed to prudence — in a previous post.

The particular examples do not matter so much here. What matters is the arguments people adduce in support of the efficiency-based objection. Zarsky suggests that there are two main arguments:

Defective Dataset: The actual dataset upon which the algorithms rely is defective in some respect, i.e. contains inaccurate or misleading information.  

Predictive Problems: The systems try to predict future human behaviour but there are often serious practical hurdles to accurate predictions. This can manifest as a tendency to draw misleading conclusions from the data.

Are these criticisms plausible? And how are they linked to the automated and opaque nature of the decision-making systems?

Zarsky suggests that these criticisms are relatively weak. There are three reasons for this. First, the problems with inaccurate data may be corrected over time or at an aggregate level. In other words, misleading information from one source could be cancelled out or swamped by accurate information from other sources. The accuracy of the overall prediction could still be (probabilistically) valid. That said, Zarsky acknowledges the need for ongoing research into this matter. Theoretical possibilities and anecdotal evidence will not be sufficient to either prove or disprove the accuracy of an algorithm.

Second, even if these systems are inaccurate in certain respects, you need to compare their inaccuracy with the accuracy of alternative decision-making systems. For example, it could be that systems which assess credit risk based entirely on the subjective assessment of an individual bank employee are much more inaccurate. In that case, the inaccuracies of the algorithm might be acceptable. There is a good methodological point here: Whenever you assess policy changes you should do so comparatively, i.e. by comparing the policy with the status quo and some reasonable alternatives. When you do so, you might find that it is less objectionable than it first seems.

Third, transparency could be leveraged to improve the accuracy of such systems. For instance, people could be given the legal right to investigate and challenge the information used by the algorithm and, potentially, the source code of the algorithm itself. But Zarsky is not entirely convinced about the success of such transparency initiatives. One reason for this is that many people already have the right to scrutinise the information on their credit scores but don’t exercise those rights. Another is that making these systems more transparent may enable people to ‘game the system’. This is something I discussed in much greater detail in a previous post about Zarsky’s work.


3. Unfair Wealth Transfer Objections
Let’s move on now to fairness-related objections. These are more complex. They break down into three main subgroups. The first of these subgroups is concerned with the impact of algorithmic decision-making on the distribution of wealth (where ‘wealth’ is defined broadly to include social goods and opportunities of all kinds). The objection is based on the belief that algorithmic decision-making systems could result in wealth being unfairly distributed away from those who deserve it to those who really don’t. Zarsky notes three distinct ways in which this could happen:

From Consumers to Firms: Corporate enterprises could take unfair advantage of consumers, resulting in a wealth transfer from the consumers to the enterprises. For instance, a bank could use a credit score as the basis for manufacturing a sophisticated financial product that seems attractive to an at-risk customer but actually favours the bank in the long run. This could result in undeserved hardship to the customer.

Between Consumers: Certain consumers could take unfair advantage of these systems, resulting in a wealth transfer in their favour, to the detriment of others. So, for instance, in the case of credit-scoring and other financial algorithms, wealthy people, with teams of advisers, might be in a better position to game these systems to their advantage. This could result in further inequalities of income and wealth.

Away from Protected Groups: The algorithms could work in such a way that they have a disparate impact on groups with certain characteristics (e.g. gender, race, ethnicity, religion, sexual orientation). In most countries, these groups are explicitly protected from discrimination by law. The concern is that algorithmic decision-making could unfairly target them due to implicit or explicit biases affecting the coding process, or due to some other unknown factor.

How serious are these concerns and what role do automation and opacity have to play? Let’s take them one by one.

In relation to transfers from consumers to firms, there is no doubt that businesses may be incentivised to take advantage of less fortunate customers. The whole sub-prime mortgage crisis is a classic example. The temptation is there irrespective of automation, but there may be ways in which the complexity and opacity of algorithmic systems make it more alluring. Again, the sub-prime mortgage crisis provides some powerful lessons. The complex methods used for weighting and calculating the risk attached to mortgage bonds fueled the speculation that led to the eventual crash. Transparency may reduce the risk, but is probably insufficient by itself. Regulation and strict scrutiny of the systems used by private (and public) bodies may be needed.

In relation to transfers between consumers, this could also certainly happen. We are witnessing a significant recrudescence in wealth inequality. If people like Thomas Piketty and Anthony Atkinson are to be believed — and I believe they are — then we are now returning to levels of inequality not seen since the late 19th century. It seems plausible that wealthy elites will be well-positioned to take advantage of complex and opaque algorithmic decision-making systems, if for no other reason than that they can expend considerable resources trying to get to grips with them.

Transparency could help by levelling the playing field to some extent. But Zarsky is not convinced. Transparency could heighten the advantage of the wealthy elites. One reason why people think budgetary decision-making should be conducted in secret, and all decisions simply announced at one time, is that they worry about elite lobbying groups taking advantage of transparency to push their agendas. Furthermore, Zarsky thinks that the automated and inhuman nature of algorithmic decision-making could actually help to resolve these inequities. Current elites are propped up by a system of implied and explicit biases among human decision-makers. Removing the human element could remove these implicit and explicit biases and result in greater equality.

Finally, when it comes to the impact on protected groups, we need to bear in mind the three different ways in which this could happen: (i) because protected characteristics (like race) are explicitly used by the algorithms when making unfair allocations; (ii) because the implicit biases of the designers results in a system that goes against the interests of the protected group and (iii) because, for some unknown reason, the algorithm has a disparate impact on the protected group when put into practice. If (i) is happening, it should simply be banned: the whole ethos of anti-discrimination law is that you cannot use such characteristics when making allocative decisions. If (ii) is happening, then greater transparency and scrutiny of the coding process is required. And if (iii) is happening, transparency is still necessary but needs to be combined with careful empirical studies of how the systems work. Furthermore, all of this must be balanced against the possibility of using algorithmic decision-making as a way to avoid human biases that disfavour the protected groups.


4. Arbitrariness and Autonomy-Based Objections
The second fairness-based objection has to do with arbitrariness. The concern is that an algorithmic decision could affect a person (negatively) for a seemingly arbitrary reason, i.e. a reason that is unconnected to any factor that should lead to them being legitimately singled out by the algorithm. Take two seemingly identical people, one of whom receives a positive credit score and the other who receives a negative one. As best we can tell, there is nothing in their behaviour or personal data to explain why one should be favoured over the other, but this is what the algorithm does. In such a scenario, the decision would be arbitrary and hence unfair.

You might think this is really an efficiency-based objection, but there is a subtle difference. In the scenario being imagined, the algorithmic decision-making process as a whole could be quite efficient. In other words, in the aggregate, it might be that the process works well and is effective in distinguishing high risk from low risk customers. It is just that in this particular case it seems to have singled someone out for an arbitrary reason.

In such a scenario, it seems pretty clear that the automated and opaque nature of the decision-making process would be partly to blame. It is true that human decision-making systems could also single people out for arbitrary reasons, but in those cases it will usually be easier to figure out where the system broke down. In the case of an automated and opaque algorithmic process, it will be more difficult to conduct the investigation into what went wrong. Faith in the algorithm, despite its flaws, could be tempting. Transparency may help to alleviate this concern, but again its effectiveness may be limited since it may be impossible to deconstruct the algorithm and figure out why the error arose. All that said, the negative impact in one individual case would need to be balanced against the aggregate gains. It could be that the individual is negatively affected on one occasion, but benefits on nearly all others. As a result, the arbitrariness in the one case may be offset.

This brings us to the final fairness-based objection. This one focuses on autonomy-based harms. Here, we switch focus from the fairness of the outcome to the fairness of the procedure itself. The concern is that algorithmic decision-making processes might fail to respect the dignity and autonomy of the individuals affected by their outputs. There are several ways in which this could happen. The system could rely on data that is collected without informed consent, or it may fail to allow for meaningful human participation and scrutiny due to its intrinsic complexity.

Interestingly, Zarsky finds this type of objection to be the most intractable. Transparency could help to mitigate some of the autonomy-based harms, but not all. Procedural due process rights for algorithmic decision-making systems could also help. But, to some extent, “these concerns are inescapable when opting for an (often automated) algorithmic analysis with inherent complexities” (Zarsky 2015, 13). This is something I have spoken about at length in my various ‘threat of algocracy’ posts and talks.

Okay, that’s it. As I said, this was merely intended to provide a high level summary of some of the key debates and issues surrounding algorithmic decision-making systems. For more detailed analyses, as well as potential solutions, you should read the other posts in my series on Algocracy and the Problems of Big Data (LINK).

Understanding the Threat of Algocracy

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On 2nd November, I gave a talk entitled "The Threat of Algocracy: Reality, Resistance and Accommodation" to the Programmable City Project at Maynooth University. You can watch the video of my presentation (minus the Q&A) above.

The talk defended one central thesis: That the increase in algorithm-based decision making poses a threat to the legitimacy of our political and legal system. The threat in question is relatively unique (due to its technological basis) and difficult to resist and accommodate.

In order to defend this thesis, I tried to ask and answer four questions:

1. What is 'algocracy'? Broadly speaking, to me 'algocracy' is the phenomenon whereby algorithms takeover public decision-making systems. More precisely, the term 'algocracy' can be used to describe decision-making systems in which computer-coded algorithms structure and constrain the way in which human beings interact with these decision-making processes (see, generally, Aneesh 2009). There are many different possible algocratic systems. I focus on algocratic systems made possible by the rise of big data, the internet of things, surveillance, data-mining and predictive analytics.

2. What is the 'threat of algocracy'?  Public decision-making processes ought to be legitimate. Most people take this to mean that the processes should satisfy a number of proceduralist and instrumentalist conditions. In other words, the processes should be fair and transparent whilst at the same time achieving good outcomes. The problem with algocratic systems is that they tend to favour good outcomes over transparency and fairness. This is the threat they pose to political legitimacy.

3. Can we (or should we) resist the threat? I argue that it is difficult to resist the threat of algocracy (i.e. to dismantle or block the creation of algocratic systems) due to the ubiquity of the technology and the strength of the political and economic forces favouring the creation of algocratic systems. I also argue that, in many cases, it may not be morally desirable to dismantle or block the creation of such systems.

4. Can we accommodate the threat? I argue that it is difficult to accommodate the threat of algocracy (i.e. to allow for meaningful participation in and comprehension of these systems). I examine three possible accommodationist solutions and find them lacking in several respects.

The talk provides more detail on these four questions. I find it difficult to watch and listen to myself give presentations of this sort, but other people may find it more tolerable. And if you can't get enough of this topic, I did an interview on the Review the Future podcast about it last year and I also wrote a short post describing the nature of the threat a couple of years back.

Demanding a Post-Work World: Technological Unemployment and the Human Future

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The political left has long been oriented toward the future. This is clear in its revolutionary ethos: the utopia of the revolutionary is, after all, always just around the corner. But in orienting itself toward the future, the left has not always been actively futurist in its outlook. Many leftists are uncomfortable with technology and science, viewing them as insidious and malign capitalistic projects. As a result, their utopian dreams often end up looking to a mythic historical Golden Age for inspiration.

This is why Nick Srnicek and Alex Williams’s recent book Inventing the Future: Postcapitalism and a World Without Work caught my eye. It is resolutely leftist in its political grounding, but also thoroughly futurist in outlook. Srnicek and Williams argue that their fellow travelers should not fear technology; rather, they should embrace it. In particular, they argue that the labour movement should embrace automation and technological unemployment. They are emancipatory forces, freeing us from the drudgery and degradation of work.

In this post, I want to explore and critically analyse two of the ideas in Srnicek and Williams’s book. First, I want to address a claim they make about the current crisis of work and the growth of surplus populations in capitalist societies. Second, I want to look at four demands that they think ought to organise and motivate those interested in bringing about the end of work. I do so in the spirit of constructive critical engagement. Although I share the authors’ interests in the postwork society, I do not share all aspects of their anti-capitalist outlook. Part of my desire here is to understand their perspective, and see how much of it accords with my own (underdeveloped and unsystematic) political views.


1. The Growth of Surplus Populations
I’ll start by examining an important concept in Marxism, that of the surplus population. As hinted, Srnicek and Williams have a way of looking at the world that I find difficult to get behind. They, like many Marxists, have a tendency to describe capitalism as an all-powerful, quasi-agential, and essentially malicious force that acts in the world; whereas I tend to view it as a relatively vague property, that can be ascribed to certain sets of human relations, and has good and bad elements. Furthermore, in identifying capitalism as this unique and powerful force, they have a tendency to subscribe to certain foundational myths about how capitalism came into being and how things were before it did. Consider the following passage from their book:

While work is common to every society, under capitalism it takes on historically unique qualities. In pre-capitalist societies, work was necessary, but people had shared access to land, subsistence farming and the necessary means of survival. Peasants were poor but self-sufficient, and survival was not dependent on working for someone else. Capitalism changed all this. 

(Srnicek and Williams, 87)

This strikes me as being an ahistorical fiction. Part of the problem is that the authors don’t clearly delineate what they mean by a capitalist or pre-capitalist society, but I assume they mean to draw a line between the hunter-gatherer and agrarian societies that dominated the world before the industrial revolution of the 1700s. If so, then I think they are being generous to the merits of agrarian societies. Ian Morris’s recent book Foragers, Farmers and Fossil Fuels does a good job laying out the evidence we have regarding life in pre-capitalist societies (the broader thesis of Morris’s book is more uncertain, but it certainly fits within the historical materialist mode of analysis preferred by Marxists). It suggests that peasants in pre-capitalist societies were far from the egalitarian, self-sufficient freemen that Srnicek and Williams seem to suggest.

Despite my problems with the way in which Srnicek and Williams frame some of their argument, I think there is something important in what they have to say about the relationship between capitalism and unemployment:

…unemployment as we understand it today was an invention of capitalism. Having been torn away from their means of subsistence, for the first time in history a new ‘surplus population’ emerges that is unable to find wages work. 

(Srnicek and Williams, 87)

What they point to in this passage is an interesting consequence of the capitalist mode of production. Capitalism is hugely impressive in its productive capacities. No one would deny this. If we compare the diversity of goods and services available to the average person today with what was available to even the richest of people 200 years ago, there is little doubt about the productive marvel of capitalism. But in this productivity, capitalism has a tendency to create and sustain surplus populations. That is: groups of people that are either permanently or occasionally unnecessary for that productivity.

Understanding this tendency to create surplus populations is crucial to understanding what Srnicek and Williams call the current ‘crisis’ of work, and the need to imagine a postwork world. There are three reasons for this:

1. The surplus population is on the rise: Fewer and fewer people (percentage-wise) are needed to keep the wheels of capitalism turning. At one point, Srnicek and Williams cite studies suggesting that the global number of unemployed outweighs the number of employed. This is tricky to estimate, but even if it is not true, there is evidence suggesting that surplus populations are on this rise. There has been an increase in the ‘natural’ rate of unemployment in developed economies, from around 1 to 2 percent in the 1950s and 60s, to about 5.5 percent today (in the US - higher again in Europe); there has been a decline in the labour force participation rate; a drop in the number of jobs being created worldwide; a significant rise in income inequality; a rise in the number of precarious forms of employment; and a series of innovations in the casualisation of labour (e.g. zero hour contracts). Each of these trends points toward an increasing surplus population.

2. Technology is, at least partly, responsible for this rise: This is something I have looked at ad nauseum on the blog before, but suffice to say Srnicek and Williams endorse the view that, at a minimum, technology is displacing many middle-skill jobs and leading to a significant polarisation in the labour market. The result is a few ‘superstars’ that benefit from the productive gains of technology, and a larger underclass of low-skill labour that find themselves in more precarious forms of work. Also, there is evidence of rapid de-industrialisation in some developing nations (such as China). In other words, these countries are seeing large numbers of manufacturing jobs disappear very soon after embracing full industrialisation. This also hints at the role of technology in the creation of surplus populations.

3. Surplus populations have important social repercussions: This point is obvious. If you have a large number of people not engaged with the machinery of capitalism, and if the entire economy and culture is organised around that machinery, you have a potential recipe for disaster. The surplus population becomes increasingly disenfranchised and ends up being ‘managed’ in often inhumane ways. Srnicek and Williams point to the rise of slums, mass incarceration, and immigration controls as just some examples of this.

These three things — the rise of the surplus population; the role of technology in their creation; and the important social repercussions they can have — should give us some pause for thought. In particular, it should encourage us to rethink our attitude toward work and the work ethic.


2. Four Demands for the Post-Work Future
The work ethic is woven into the fabric of contemporary culture. Most of us grow up with the view that work is both virtuous and necessary. Paid employment is dignifying: it motivates us, allows us to provide for our families, and to generate a sense of self and pride. Indeed, this fondness for the work ethic is something that even the labour movement seems to have imbibed. For them, the problem is not so much the existence of work, but rather the conditions of employment. “Good jobs for all” is their rallying cry.

But how sustainable is this fondness for the work ethic? If Srnicek and Williams’s claims about the rise of surplus populations are accurate, then the answer would seem to be ‘not very’. If technological advances mean that fewer people are needed for high rates of economic productivity, then we need to start imagining a post-work world. This could be desirable for a number of reasons. Although there may be people who are deeply engaged and satisfied by what they do, there is reason to believe that they are in the minority. A Gallup poll in 2013, cited by Srnicek and Williams, found that only 13% of people worldwide were actually ‘engaged’ by what they did. Consequently, the authors think that creating a post-work world should be a major project for the political left, and that this project should be organised around four key demands:

Demand 1: Full Automation - We should not fear technology; we should embrace it. Improvements in automating technologies can free people from the drudgery and indignity of work. Furthermore, technological displacement is already happening (to at least some extent). This demand simply encourages us to push it as far as possible. That said, Srnicek and Williams accept that there may be limitations to how far we can go. Some of these might be technical, some economic. But one of the chief ones is likely to be the moral value we attach to work via the work ethic. This is something we should aim to dissolve.

Demand 2: Shorten the Working Week - This used to be one of the central aims of the labour movement, before it dropped out in the mid-20th century. Srnicek and Williams lament this, noting how the work-life balance has eroded over time. Nowadays, with 24/7 markets and communications technologies, we are constantly at the beck-and-call of work. To resist this, the demand for a shorter working week needs to resurface. Srnicek and Williams favour a demand for a three-day weekend. They do so for four reasons: (1) it will allow for increased leisure time; (2) it is necessary in an era of increasing automation; (3) it will benefit the environment (reductions in energy consumptions etc.) and (4) it can enhance the bargaining power of the working class. The last of these is defended on the grounds that a coordinated withdrawal of labour supply strengthens the bargaining position of the workers vis-a-vis the capitalists (this is the standard rationale behind strikes).

Demand 3: Universal Basic Income - This will be familiar to readers of this blog. The UBI is an income grant that is given to all citizens/persons within a particular political state irrespective of their willingness/ability to work. The UBI is a popular welfare reform strategy among both left and right. But one thing Srnicek and Williams insist upon in their demand is a uniquely leftist version of the proposal. To them, conservative arguments for the UBI are all about maintaining consumer demand in an era of increasing inequality and automation. This is not truly revolutionary in nature. They believe the case for the UBI should be grounded in an attempt to overthrow the political regime of capitalism, strengthen the hand of labour, rethink the value of work and challenge the gendered division of labour. To this end, they insist upon a UBI that is sufficient to live on, truly universal and supplementary to other forms of welfare.

Demand 4: Devalue the Work Ethic - The final demand brings us back to what I said about the work ethic at the start of this section. Srnicek and Williams think we are far too much in thrall to the ennobling power of work. Work has become the primary avenue for self-realisation. This needs to change. As they put it, ‘work, and the suffering that accompanies it, should not be glorified’ (2015, 125). This necessitates a change in our culture and willingness to articulate a vision for a postwork world.

These four demands work together as an integrated whole. While they could be taken individually, Srnicek and Williams think it would be best if they were pursued side-by-side.

3. Concluding Thoughts
As I said at the outset, there is much here with which I sympathise. I too think it is important to take seriously the implications of technology for the economy and society. And I think the concept of surplus populations is a useful framing device for thinking about these concerns. I also agree with most of their proposed demands. That said, I have two quick concerns.

First, I am concerned that their four demands are not as coherent and consistent as they seem to think. In particular, I worry about the consistency of the demand for full automation with strengthening the hand of the labour movement. If it is true (or highly likely) that automating technologies can take over most forms of productive labour, then surely this weakens the bargaining power of the labour movement? The reason why strikes strengthen bargaining power is because you need workers to perform certain roles. When train drivers go on strike in London, everyone notices and starts to complain. They need the human workers to run the train system. This mounts pressure on employers to reach some settlement with the workers (provided the public doesn’t also turn against the workers). In a world of ‘full’ automation, I fail to see how this will continue to be the case. It seems to me like the demand for full automation must go hand in hand with recognition of the depleting power of the labour movement as a whole. This might be a naive and obvious point, but I don’t see it discussed anywhere in Srnicek and Williams’s book.

Second, as with many political tracts of this sort, I find Srnicek and Williams are better at rallying the troops and presenting a political platform for change than they are at mapping out the shape and form of the post-work society. In other words, they are good at describing the journey we ought to take, but not the destination we should reach. To them, demanding a postwork society is part of the emancipatory project of the left. I can see this being true, and I have written about the relationship between work and freedom in the past. But emancipation to do what exactly? We get some hints in their final chapter. The result will not be an ‘end of history’, they say. Society will continue to evolve, but it will be a society in which people are free to conduct more experiments in living:

The synthetic construction of freedom is the means by which human powers are to be developed. This freedom finds many different modes of expression, including economic and political ones, experiments with sexuality and reproductive structures, and the creation of new desires, expanded aesthetic capabilities, new forms of thought and reasoning, and ultimately entirely new modes of being human. The expansion of desires, of needs, of lifestyles, of communities, of ways of being, of capacities — are all invoked by the project of universal emancipation. This is a project of opening up the future… 

(Srnicek and Williams, 180-81 - references omitted)

While some of this sounds interesting — and echoes the desires of the transhumanist movement — it still seems maddeningly vague to me. I think those who are truly interested in imagining a postwork world would be well-advised to think more systematically about what it takes to live a full and meaningful life, and to assess whether that will be possible when people lack the economic motivation to work. I am intuitively optimistic in this regard, but the details remain clouded.

Philosophy of Consent and Sexual Assault (Index)

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I have written quite a few posts about the philosophy of consent and sexual assault over the past couple of years. This is obviously a controversial but important topic. For those who are interested, I have collected all the posts together in this handy index:

• Some notes on consent and sexual offences (Part One, Part Two) - An overview of some of the key issues in the philosophy of consent and the definition of sexual assault.

• Four Concepts of Consent and their Relevance to Sexual Offences - A detailed summary of Peter Westen's useful framework for thinking about consent and its role in the law of sexual offences.

• On Rubenfeld and the Riddle of Rape-by-Deception - My analysis and critique of Jed Rubenfeld's controversial take on rape-by-deception.

• Yes Means Yes: The Case for Affirmative Consent Standards in Sexual Offences: An attempt to present the best possible case for affirmative consent standards.

• Intoxicated Consent to Sexual Relations: A Map of Moral Claims: An effort to analyse the various moral positions one could take on the validity of consent whilst intoxicated.

• Voluntary Intoxication and Personal Responsibility: A follow up to the previous post, focusing on the link between intoxication and responsibility. Doesn't directly engage with the question of responsibility for sexual assault, though that lurks in the background.

• Drunken Consent to Sex and Personal Responsibility: An analysis of two arguments about the connection between personal responsibility and drunken consent to sex. The first, from Heidi Hurd, argues that anyone who is voluntarily intoxicated must take responsibility for their intoxicated consent to sex; the second, from Susan Estrich, argues the opposite. Both arguments are found lacking.

• A Rawlsian Approach to Intoxicated Consent to Sex? An outline of Alan Wertheimer's take on intoxicated consent to sex. Wertheimer thinks we can approach the setting of consent standards much like Rawls approaches the setting of standards of justice.  

• Sexual Assault, Consent Apps and Technological Solutionism - My critique of the recent attempts to use smartphone apps to address issues surrounding consent and sexual assault.

Commercial Surrogacy Debate - Opening Statement

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On 22 October 2015, I participated in a debate about the legalisation of commercial surrogacy (that's why I have been writing about the topic recently). Above you can find an audio version of my opening statement. This was a version that I recorded in advance to see whether what I had to say would fit within the allotted 15 minutes, but it should be pretty close to what I actually said.

When I initially agreed to participate in this debate, I was asked to argue against commercial surrogacy. In the week before the debate, I was asked to switch sides by the organisers, which I did. The very fact that I was willing to do so probably indicates that this is a topic about which I feel somewhat divided. In general, I lean in favour of legalising most things (e.g. drug use, sex work), but prior to this debate I had never really thought about the surrogacy issue. On balance, I think legalisation is probably the better option, largely for reasons I expressed in a previous blog post (and repeat in my opening statement), but I'm not sure.

Anyway, you can listen to what I had to say above. Before you do, here are a few listening notes:

• I really struggled to reduce what I wanted to say to 15 minutes. To do so, I had to skip over some of the nuances and grey areas in my argument. This was an interesting exercise for me as it was the first real public debate in which I participated with such time limits.

• In my initial definition of surrogacy (and later when responding to one of the anti-commodification arguments), I did not distinguish between genetic and gestational forms. I am aware of the distinction, but decided not to mention it because I felt my argument covered both types.

• I did not discuss all possible forms of the anti-commodification argument. I do a slightly better job of this in one of my previous blog posts.

• The empirical studies (or reviews of such studies) that I mention in the speech are more complex than I let on. Although I stand by the claim that surrogacy agreements in developed countries are pretty well implemented, I appreciate there have been problems with them too. 

• The studies I mention can be found here, here and here.

• I am aware of issues associated with exploitation and consent in surrogacy agreements. I discuss them at greater length here, but I did not have time to address them in my opening speech. The idea was that the third argument I offered could address these concerns.

If you care, the proposition won the debate (i.e. the audience voted in favour of commercialisation), but I view this as being virtually meaningless in the grand scheme of things.

The Ethics of Commercial Surrogacy: Gender Inequality Arguments

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(Previous Entry)

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

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

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


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

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

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

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

• (1) If commercial surrogacy reinforces and perpetuates systematic gender (and other) inequalities, it ought to be prohibited.

• (2) Commercial surrogacy does (or is likely to) reinforce and perpetuate systematic gender (and other) inequalities.

• (3) Therefore, commercial surrogacy ought to be prohibited.

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

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


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

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

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

(Satz 2010, 129)

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

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

(Satz 2010, 129)

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

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

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

(Satz 2010, 130)

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

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

(Satz 2010, 131)

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

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

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

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

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

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

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

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

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

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


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

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.