The Challenges of Global Commercial Surrogacy

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By Hannah Giunta

Recently, The Guardian has carried a series of articles on the issue of commercial surrogacy. No doubt the recent emphasis stems from high-profile cases in the UK and the U.S., particularly the case of a UK surrogate mother who was ordered to honor her surrogacy agreement with a gay couple after she changed her mind about relinquishing the child (see this article for more details). In her May 9th editorial, Catherine Bennett laments that relational breakdowns in UK informal surrogacy arrangements will only encourage couples to look elsewhere for surrogates, and there are many women in developing countries who are willing to enter into these agreements even when few regulations exist to protect them. Surrogacy brokers can control these vulnerable women and sometimes force them to stay in special housing units where their activities can be monitored continuously until delivery. Keeping the child is socially and financially prohibitive for the women, so the brokers can guarantee the baby is handed over with minimal drama.

Indecision

Image Description: a view of a pregnant person’s bare stomach covered in post-it notes that have names written on them. Source: Flickr Creative Commons.

Even if richer countries like the UK and U.S. harmonized their laws and permitted commercial surrogacy domestically (like some U.S. states already do), arrangements would still sometimes fall apart, and wealthy couples desperate for a child would be drawn to the assurance provided by surrogacy brokers. Making an admittedly ethically inexact analogy with prostitution, Bennett surmises that there may be things, particularly acts that dehumanize and commodify women’s bodies, that no one should be asked to do, even for money. While I sympathize with Bennett’s desire to protect vulnerable women from exploitation, I worry that trying to simply end surrogacy would serve only to drive it underground. After all, prohibiting prostitution certainly hasn’t ended the practice. On the other hand, regulations without a new framework for the practice would ameliorate some of the exploitation endemic in commercial surrogacy but would fail to fundamentally address just what is so problematic about these ventures. However, there may be a middle way. If we want to address the larger moral issue, we have to ask, “What should give us pause about commercial surrogacy in a world where people can accept money for many forms of physical labor often at egregiously low prices?”

To my mind, the dehumanizing and commodifying part of current surrogacy practices in developing countries is not the use of women’s bodies for what might be a distasteful purpose to some but the surrogate’s wholesale exclusion from the relational aspects of pregnancy and birth. Here I call pregnancy and birth inherently relational because they usually result in the founding of a family unit, whatever the unit might look like. To be sure, families are not always founded intentionally or under the best of circumstances, but I would argue that at some level all pregnancies cement relationships and promote family ties. A new child solidifies the understanding that certain adults are now bound together at least through their relationship with the child. And, there is something special about family ties. We help relatives through troubled times, and we remain loyal to family members even when they annoy or disappoint us. The extent of our connections changes with proximity, but we treat even distant relatives with some respect just because they are in our family. Family members aren’t like contractually obligated service providers, and family life is much messier than any commercial venture. Surrogates in developing countries usually remain unrecognized as even extended family members, and this lack of recognition is presented as a desirable outcome by commissioning couples and surrogacy brokers. Commercial surrogacy arrangements where prospective parents possibly supply the raw ingredients, sign a contract, and return for pick-up with the intention never to see the surrogate again require women to do fundamentally relational work without relational support or respect. Effectively, couples are saying, “You’re good enough to carry our child but not welcome as part of our family.” It’s this attitude that is unacceptable. We should be wary when people want to found a family while excluding a significant member from the picture entirely. Not to mention, surrogacy has an impact not just on the involved adults but sooner or later on the child who is deprived of a potentially significant relationship. The worry about commercial surrogacy then shouldn’t be based solely on the physical labor performed or risks undertaken. It should be informed by the inherently relational nature of pregnancy and birth. With the current vision of international surrogacy as a clean, strings-free way to have a child, we need to change how we look at the process. Only then will regulations truly help.

What might surrogacy look like if there were significant efforts to integrate the surrogate into the larger family unit and thereby restore relational ties? Obviously, every surrogacy arrangement would look different, but minimally, there would have to be avenues for the surrogate to remain in contact with the family after delivery. Provisions would likely look similar to those specified in open adoptions. These changes would impact couples seeking surrogacy arrangements, but family life isn’t exclusively about the needs of any two people. The surrogate’s desires and the child’s needs should factor just as heavily into the discussion. Acknowledging the unique and fundamental role surrogates play in families is the only way to insure their wombs are not merely leased for nine months. If children were like products, then such leasing might be acceptable. But, children are family members who deserve positive relationships with as many other family members as possible, and they share an undeniable relationship with their surrogate. After all, if the surrogate had not carried them for nine months and done real work on their behalf, they wouldn’t exist. Founding a family will always have to be like family life itself—messy but rewarding—and that dichotomy is something that rigid commercial contracts can’t easily accommodate. The only way to right the wrong is to realize that when a couple creates a child with a surrogate they are founding a family—one that includes the surrogate herself.

References

hannah-giunta-100Hannah Giunta is a sixth year DO-PhD student pursuing a PhD in Philosophy and Bioethics.

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11 Responses to The Challenges of Global Commercial Surrogacy

  1. Karen Kelly-Blake says:

    Would your argument for restoring relational ties also apply to men who donate sperm or to women who donate eggs?

    • Hannah Giunta says:

      That’s an interesting question. My initial response would be “no” for two reasons. First, it is not clear that conception is by itself relational work. Traditionally, it certainly was, but with advanced techniques, it no longer has to be tied to it. You needn’t have a relationship with the other party to conceive a child with him or her. This is not true of pregnancy. Once pregnant, a woman and child have a very intimate relationship that persists for nine months, and this relationship usually involves other significant people in a mother’s life as well. Secondly, and perhaps more contentiously, most commercial donors are not in fact setting out to found a family themselves, while the couple hiring a surrogate and the surrogate herself are quite committed to beginning and nurturing a family together, at least for nine or more months.

  2. What might be the ethical and legal limits to the “family” integration of the surrogate? For example, beyond simple visitation rights additionally to what extent could the surrogate have a “voice” in the care of the child? ..Maurice.

    • Hannah Giunta says:

      That’s an excellent and difficult question. I would liken it to the same roles and responsibilities that other extended family members would have. For instance, if you have a distant aunt or cousin, they generally don’t have much say in the care of your child unless there is some serious issue that arises. Parents have wide latitude in raising their children, and when distant relatives but in, parents have the right to reject their advice. If some family member was so insistent on an issue that it caused conflict involving the child, then that family member might need to not visit until tensions cooled. I’d say surrogates should have a relationship but not direct authority over how the child is raised.

  3. Trish Abalo, MSU Undergrad student says:

    I really love the idea of reshaping our understanding of family, ultimately humanizing the process of surrogacy by integrating the surrogate as a familial relation. But what does it really mean to integrate a surrogate into a family unit? As Dr. Bernstein asked, to what extent could the surrogate have a “voice” in the care of the child? Would they have a voice? Should they have an invite to family dinners? Should the surrogate be available to answer questions about her life to the child? Would does integration demand of parents, as well as the surrogate? This is a question with a fluid, dynamic answer, but I’m wondering what some of the logistics would be in order expand the definition of family. Essentially, what are the regulations and demands within this new framework, in order to navigate this middle ground proposal? Thank you for sharing.

    • Hannah Giunta says:

      Thanks for the question. I think the surrogate’s voice in raising the child would be similar to the voice any other acquaintance would have. Major and routine decisions would be made by the parents. A surrogate might voice an opinion (not in front of the child) in the same way that some other family member might make a suggestion. I think a surrogate’s responsibilities must always be defined in reference to what is good for the child. For instance, it’s good for children to have questions answered about their origins, so the surrogate’s being available to answer questions when appropriate would be important. I think the major demand on parents is to actually recognize the surrogate as family. You wouldn’t lie about or fail to mention a family member (unless that person was dangerous, abusive, etc.). You wouldn’t diminish a family member. You wouldn’t sever all ties without good and serious reasons. The largest issue for the parents will be a perspective change. Any regulations would have to be flexible, as they are in open adoption arrangements. Both parties would need independent representation, and parents might be obligated to cover fees for an independent advocate of the surrogate mother’s choosing. Hope this gives at least a bit of clarification.

  4. Specifically, beyond “your welcome to come to our family ‘get togethers dinners'” would or should there be some minimal standard of legal voice or responsibility of the surrogate within the family even though there may be variability of integration among the different occurrences? .Maurice.

    • Hannah Giunta says:

      I think any minimal legal standards would have to be established in individual surrogacy agreements. A surrogate who resides very far away would obviously have different rights and responsibilities than one who lives a few blocks away. Minimally, I would say that the focus should be on roles that are good for children. It is good for a child to know the surrogate would be welcome at some public family events. It would be good for the surrogate to be available for the child’s questions. It would be good if the surrogate received updates and a chance to visit with the child on some routine schedule. It would be good for the child’s parents to speak positively of the surrogate and to know enough about her to answer basic questions the child might ask. These are just a few examples.

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  7. “Finally?” Hannah, as I understand some women who become a surrogate for one family later become a surrogate for other unrelated families. Wouldn’t you think this fact would make the surrogate’s “family” relationship to any one child and any one family a bit more complex? Would this possibility change your ideas about the role or status of a surrogate in any one family? Also, in relation to a history of multiple surrogate “work” (for pay and not voluntary donation of her body), wouldn’t that fact present the surrogate more as an employee or a “marketeer” and affect the more intimate relationship to a family than might be considered if this surrogacy was only a one time event? ..Maurice.

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