The Viability of Surrogacy

-- By TamarLisbona - 19 Feb 2016

Traditionally, and even biblically, surrogacy has been characterized by a woman carrying her own biological child to gestation with the purpose of giving it to another party. While that practice calls for ethical consideration, the sub-practice of gestational surrogacy, in which a woman carries an inseminated egg that is not her own to gestation, often in exchange for a sum of money, elicits ethical and legal questions. How States and the federal government respond to these questions over time may give us insight into the changing American ethos and legal landscape. States’ positions on surrogacy differ. Currently, twenty-two states have legalized it, four have made it illegal, and the rest have no governing law on the matter. New York is in fact the only state in which the practice is punishable criminally. Yet, as the practice creeps into the mainstream, it’s worth asking whether gestational surrogacy should be legal and why.

Ethically and morally, gestational surrogacy raises cause for concern.

Kant, in his theory of morality, claims that we, as people, have a duty not to use other people as a means to our ends, as all people should be treated as ends themselves. In this light, gestational surrogacy seems fully morally objectionable. The surrogate is functioning as the means to the end of birthing a child for the biological parents. While the surrogate receives compensation for her actions, in Kant’s perspective the biological parents have a duty to abstain from this behavior as it dehumanizes the surrogate. I believe that Kant’s categorical imperative draws too stark a bright line. We, as people and as lawyers, have a duty to protect surrogate mothers and ensure that they are compensated fairly and given access to the medical services they need. Yet, we should not have the ability to strip them of their autonomy and decide what is best for them.

Theories underlying property law can also help us understand gestational surrogacy and its legal implications.

Locke believed that “every man has a property in his own person, from which it immediately flows that the labor of his body, and the work of his hands, are properly his.” Interpreting Locke, modern scholar Margaret Jane Radin asserts that an individual has an entitlement to be a person or to be treated as a person. Looking at gestational surrogacy through the lens of these theorists, something doesn’t sit quite right. While Locke’s theory doesn’t explicitly rule out gestational surrogacy, Radin’s interpretation hits directly at the fishiness and uneasiness surrounding the commodification of the womb. Gestational surrogacy carries medical risks beyond that of pregnancy alone. Carriers have to undergo in vitro fertilization, an invasive procedure, and often have to take hormones and other drugs before and during their pregnancy. “Personhood” seems innate and inalienable. Perhaps this is because we, as human actors, have both a sense of ego as well as a sense of empathy. That said, again, a sense of personhood doesn’t necessarily trump one’s sense of autonomy.

If some people wish to sell something personal, why not let them?

Carriers may have many reasons for electing to become surrogates. Primary among them is remuneration. The cost of surrogacy in the United States is approximately $100,000 per pregnancy with additional medical costs included. This is not a small sum of money, and could be a boon for a woman seeking short-term or temporary employment. Yet, I still can’t kick this uneasiness. Radin, in Market Alienability, describes three reasons why we should not allow people to sell things that, like wombs, are identifiably personal. First, she argues that if an item is personal, sometimes the circumstances under which the holder places it on the market might arouse suspicion that her act is coerced. This is a real concern in gestational surrogacy. Income discrepancy in the United States combined with an uptick in demand for surrogate carriers could give rise to an oppressed surrogate class in which increased supply of surrogate carriers drives down the price of the service to levels that could hardly be considered fair. Second, Radin argues that it is important to exclude from social life commodified versions of certain goods, as the commodified version of the good fosters an inferior conception of personhood. Finally, she also argues that commodification for some might lead to commodification for all, and that non-commodification is morally preferable to commodification for certain personal things. Given the nature of birth and society’s connection to the birth narrative, I don’t foresee this domino effect in the area of gestational surrogacy, yet the essence of the argument that some social forces (like love and partnership) should not be commoditized, rings true.

So what?

In the end, I am left in stuck between two ideological positions that both have merit. On the one hand, I know that we, as lawyers, have a duty to protect women from exploitative work environments, and, we, as people, also have the responsibility to protect our social institutions from commodification. Yet, given the circumstances, prohibition would deprive many women of work they might not otherwise get. This seems extreme and unfair. Balancing these two positions, I would support proper government regulation designed to guarantee the health, safety, and welfare of the gestational carrier, as well as unionization to ensure that gestational carriers be paid fair wages in changing economic times. Certain measures such as price floors for service, standardization of medical practices, and legal actions carriers could raise against genetic parents or healthcare providers in court could help reduce the occurrence of exploitative scenarios.

A big step forward, certainly. The focus, and some of the reading that resulted from the Googling, was very useful. I don't think the question ever needs to be asked in the form whether John Locke is for or against gestational surrogacy. He would have perceived a direct connection to the common law of bastardy that is less immediately evident to us.

The strength that you gain from being in contact with more complex positions is partly diffused by the framing, which is still in the form of "yes" or "no," Peggy Radin v. I-don't-know-who. This is a necessary perspective, but not the only useful one. What your exposure to these and some other positions (I missed John Stuart Mill, for example) now prepares you to ask what we are really discussing. Skipping the big words, is our question how to do this right, or whether doing this is wrong? Are we asking how to achieve the greater good while avoiding so far as is consistent with doing so the development of "exploitative scenarios"? Or are we asking whether this is exploitation?

Unlike the discussion about whether this or that should be permitted or prohibited, the dialogue between consequentialist and deontological positions neither can nor should be concluded. What the essay would benefit from, then, isn't coming to an incomplete conclusion, but rather reflecting more fully the nature of our irresolution.