Wednesday, November 08, 2017

Surrogacy and commodifying women

by Sherry F. Colb

In my column for this week, I discuss the topic of surrogacy in the context of a New York State bill under consideration that would legalize such arrangements and make them enforceable. My focus in the column is on the baby's interests and on the potential parents who wish to use surrogacy to expand their families. In this post, I want to look more closely at the woman who carries other people's babies, the surrogate herself. Why would those focusing on the woman wish to ban surrogacy?

Those who oppose surrogacy view the practice as commodifying not only the baby (whom they may view as the product to be purchased) but the surrogate as well. Surrogacy, on this thinking, takes a bodily function that women ordinarily perform in order to become a parent and rents it out to other would-be parents who, for the period of the pregnancy, occupy her womb for their purposes. She may retain the right to abort or to eat or drink whatever she likes, but they will likely pressure her to remain pregnant, eat healthy, and avoid drinking alcohol. Suddenly, her body--or at least part of it--belongs to strangers who take what we might even regard as a legitimate interest in knowing what she does to it. After all, their future child is growing in there, and they want the best for him or her. That is an extremely intrusive state of affairs for the woman, however.

One might respond to these arguments in a number of ways. First, even when a woman is pregnant with her own child, there are likely to be people taking an interest in what she does with her body. Her partner, for example, probably has a preference between termination and taking the pregnancy to term and likely also wants their child to be healthy, if he or she is to be born. And her parents (and her partner's parents) may also express their own wishes and pressure her to do what they think is right for their future grandchild. In some ways, the interest that the strangers take in the surrogate's behavior is not that different.

Second, if a woman works as a singer or a pianist, the people around her at work may take an interest in how well she takes care of her voice or her hands. No matter what she does for a living, the people for whom she works will want her to ensure that she continues to be able to do the job, whatever that happens to mean for a particular person.

Opponents of surrogacy would respond that if a woman is pregnant with her own baby whom she will later mother, then she can more easily tell other interested parties to lay off. It is her baby, after all, so she can be presumed to do what is in their best interests. When she is pregnant as a service for other people, by contrast, the interested parties may be more skeptical about her commitment to the wellbeing of the developing child. Their interest in her body, then, becomes that of customers interested in a space they have rented  rather than a shared interest that everyone in the family, including her, has in providing the best environment possible for the child.

And as for the singer or pianist, we have a long history of people paying for the voluntary exercise of a skill that happens to involve part of one's body (such as the voice box or fingers). But paying people to carry a baby is relatively new and involves a woman's submitting, for a paycheck, to what is largely an involuntary process run by one's body. In other words, a pregnancy is a much more personal and corporal sort of process than are most of the things people do for money. In that sense, it is more like paying someone to have their organ removed and transplanted to someone else than it is like paying someone to paint someone else's house.

I am torn about this issue. I do think that carrying a compensated pregnancy for other people is qualitatively different from being paid to paint other people's houses. That is in part because being pregnant is such a personal and intimate kind of experience to be having for pay, but it is more than that. It is the fact that a surrogate's body is itself--and to some degree independent of the woman's wishes--doing things that sacrifice the woman's health interests. A pregnancy involves the fetus taking what it needs from the mother's body, even if the mother does not have enough of whatever it is to spare. And for her to compromise her health for money feels problematic. It feels, in a way, like she is being paid to undergo dangerous biomedical experiments that will in no way benefit her. It feels exploitative.

At the same time, much of the labor market is exploitative. People agree to do dangerous jobs that expose them to the risk of being killed (such as work in the armed forces or work in law enforcement), and the beneficiaries in such cases are others as well. And I am not convinced that organ donation for money should be impermissible.

People who can reproduce biologically only through a surrogate usually did not do anything to deserve to be either infertile or in situations that do not admit of surrogate-free reproduction, just as people who are in great need of money did nothing to deserve to be needy. When we take a pair of such people or groups and allow for a trade, we help to right the imbalance in which they initially found themselves. The infertile get to have what they otherwise could not have, and the needy get to have an infusion of money. In a free market, allowing such arrangement permits what is essentially a redistribution of resources (fertility resources and financial resources) to take place, rather than leaving everyone lacking what they want or need.

Although I am uncomfortable with the arrangement, who am I to say that people should be blocked from bettering their situation in a way that promises benefits to both sides of the transaction? In short, I am prepared to be uncomfortable with the arrangement, because I think it is better for those who wish to enter it than the alternative would be. I think I will hold this view until our society becomes more willing to redistribute wealth more directly (at which time, presumably, fewer people will be willing to serve as surrogates).

4 comments:

Joe said...

"But paying people to carry a baby is relatively new and involves a woman's submitting, for a paycheck, to what is largely an involuntary process run by one's body."

The modern day version is new, but I wonder how "new" it is big picture. People have served as surrogates in some fashion since biblical times.

As to the possibility of abuse, the big picture here is also complicated as suggested by the discussion. The most ready example might be prostitution or more legally things like modeling, pornography, escort services and so forth.

Finally, in numerous cases, the surrogacy is part of a very supportive process, the surrogate a friend or family member who is working with the couple. Anyway, like other "black market" activities, legalization probably would be best for all concerned, even if there are problems involved.

greg rubin said...

I am just not convinced that the surrogate is being exploited. It certainly isn't like a surrogate is going to unaware of the process of pregnancy, or be surprised by the effect it will have on their body. To the extent that an uneducated surrogate may be unaware I think full disclosure in a medical context is a better option than prohibition anyway.

That isn't to say there isn't a role for the state in establishing guide rails, and modifying the law in such a way to prevent abuse by either party, but as a blanket prohibition I find disallowing surrogacy to be an unreasonable restraint on contract.

Vicki Ferrara said...

I would just like to say that I liked your piece and I feel it is very thoughtful and balanced. That said, I want to add that surrogacy in the United States is done very ethically. The women who become surrogates are not exploited. They choose their own medical care, they have legal counsel to assist them, they are compensated according to their own wishes and they are treated with great respect and gratitude. As you note, it is a major commitment on their part and they do take on risks but they are informed of the risks, given excellent medical care and treatment and so becoming a gestational surrogate is done so voluntarily and willingly and with the hope and expectation that they will be rewarded with the joy and satisfaction of fulfilling someone's dream of becoming a parent.
Victoria T. Ferrara, Esq.

Joe said...

The remarks from a Connecticut surrogate attorney is appreciated.