Family law and surrogacy

Commercial Surrogacy

The issue of commercial surrogacy cuts straight to the heart of some of the most contentious discussions in bioethics and law, because the sheer range of stakeholders, coupled with deeply-rooted cultural beliefs regarding the sanctity of the body, the mother, and the child, makes it so that any discussion of commercial surrogacy is certain to produce uncomfortable confrontations between tradition, commerce, and best practices. In the past, legislation and the practice of law has attempted to give due deference to the concerns of the stakeholders involved, but it has been difficult as relaxed notions of the body and its relation to commerce and labor confront traditional ideas about motherhood, gestation, and the rights of a parent. In particular, even as advancing humanitarian and humanist ideals suggest that a woman should have the right to control her body as she sees fit, even if that includes renting out her womb for gestation, in practice surrogacy remains circumscribed within larger social structures that control and coerce women, thus making the decision to become a surrogate problematic in practice. This essay seeks to explain the reasons behind this state of affairs while arguing in favor of legal and social support for commercial surrogacy, albeit with a reevaluation of the contractual obligations that must be imposed on the surrogate herself. In practice surrogacy contracts are unenforceable if not explicitly banned, and overcoming this state of affairs will be a necessary step to towards reconciling outdated laws and assumptions with the advancements of contemporary technology and society.

The normalization of commercial surrogacy has led to a situation in which the right to control one's body and the products of one's body by becoming a surrogate is complicated by the rights of the child's commissioning parents, who should retain control over the child even in the event that the surrogate no longer wishes to give it up. Essentially, the normalization of surrogacy and the relative immediate bodily autonomy it offers suggests that surrogates who desire to keep the child they carry should no longer be able to rely on notions of an inviolable bond between mother and child in order to do so, because the rule preventing courts from forcing the surrogate mother to give up the child cannot reconcile the decline in importance of the mother-child connection due to the commercialization of the womb. In other words, the economic and bodily freedom offered by commercial surrogacy demands an attendant rise in the obligation to follow through on commercial surrogacy contracts.

Only by adapting the current legal system to reflect this reality can contemporary society hope to come to terms with the inexorably changing definitions of family, reproduction, and motherhood as they relate to the development of new technologies.

In the larger context of the family's status as a socially-created and defined phenomenon, the topic of commercial surrogacy and its implications for family law is a relatively novel issue, because the technology that makes surrogacy possible is fairly new. As with nearly all new technology, the law lagged behind the development of surrogacy and in-vitro technology over the course of the 1970s, such that by the late 1970s and early 1980s, industry advisory boards and panels were frantically trying to organize some sort of cohesive approach to bio-ethical regulations, including regulations concerned with surrogacy. These efforts represented the earliest attempts to codify rules and regulations governing surrogacy, and offer a useful starting point for considering how the law should treat surrogacy and the rights holders involved in a contemporary context.

As Jacqueline Priest notes, "in 1982, in a somewhat belated reaction to the rapid pace of medical advances in the treatment of infertility, the British government appointed a committee […] to consider what policies and safeguards should be applied to techniques for alleviating human infertility, and to the associated area of embryological research."

By the time the committee presented its findings two years later, "more limited legislation had already reached the statute book, dealing with the status of AID (artificial insemination by donor) children and with commercial surrogacy agencies," creating an environment of uneven standards and haphazard regulation.

Perhaps the most important thing to come out of this committee was its decision that surrogacy itself was undesirable, and its recommendations that effectively prioritized the gestating mother over the rights of the commissioning parents.

Before continuing this discussion further, it will be helpful to first point out the ethical questions surrogacy raises as it relates to the surrogate mother alone, because determining what it means to rent out one's body in the context of contemporary society first requires that one accurately understand the ethical and social issues raised by the prospect. In particular, one must be careful to consider how the prospect of surrogacy, while obviously a question of female autonomy, can actually serve to lessen female autonomy by keeping the female body squarely in the realm of child production. Essentially, while surrogacy does offer women the option to use their bodies for financial gain, because this option is circumscribed by a social system that disadvantages women in the first place, it is difficult to convincingly argue that the decision to participate in surrogacy is ever made without duress or coercion.

The notion that surrogacy could simultaneously grant and restrict female autonomy is important to tackle from the outset, because one cannot hope to intelligibly deal with the conflicting rights of the surrogate and commissioning parents without first settling on the rights and responsibilities of the surrogate as such. On the one hand, surrogacy presents an almost self-evidently positive option for women, because it allows women to take benefit monetarily from a biological fact that has, for much of human history, served largely as a means or justification for controlling the behavior of women. In this light, a woman's option to choose to be a surrogate or not presents a choice and a right similar to the right to have an abortion, because the decision about how to use a woman's body should reside with that woman.

However, numerous feminists have proposed problems with this interpretation, with the chief amongst them being the fact that commercial surrogacy, because it exists in a system of exchange, and furthermore, a system that has historical and systematically disadvantaged women, cannot help but be exploitative.

In particular, feminists and other ethicists have argued that surrogacy restricts a woman's autonomy, because even though a surrogate might enter into a contract "willingly," in the larger scheme of things that woman's choices have been dictated by a larger system of exploitation and the disempowerment of women.

In this light, all surrogacy would be seen as exploitative and limiting of autonomy, because it is merely a more dramatic and visible example of the coercion and capitalist exploitation that occurs in every other area of contemporary life. However, for this very reason the ethical argument against commercial surrogacy seems to dissipate, because it becomes difficult to argue that surrogacy presents a special case of exploitation, rather than simply being the most recent example in the exploitation that occurs as a result of any labor arrangement under capitalism.

Furthermore, because surrogacy provides women with a way of making money unavailable to men, one could argue that it actually helps to expand women's autonomy and opportunity in an inequitable system. Of course, there are questions as to who actually receives the majority of the income from surrogacy arrangements, but this is more an argument in favor of better contracts than an argument against commercial surrogacy as such.

The fact that some Marxist feminists view surrogacy as an act akin to prostitution might actually be a point in favor of it, because in both cases there is the potential for women to actually gain greater control over their bodies, even if in practice that control is total than it should be.

In fact, research suggests that in practice surrogacy contracts can impose genuine limitations on women while rewarding those responsible for setting up the contract, suggesting that what is needed is not less surrogacy but rather greater regulation and standardization of the surrogate's rights.

In this light, it seems difficult to argue against the allowance of commercial surrogacy except from a kind of cultural or traditional perspective, meaning a rejection of commercial surrogacy not because it violates a certain belief in fundamental rights, or because it is inherently and particularly more exploitative than other uses of the human body, but because it threatens to disrupt traditional notions of the family. However, as will be seen, this position is simply the last holdout of an outdated and ultimately insufficient notion of what it means to be a family, what it means to value the human body, and what are the best methods for achieving a particular social and political goal.

While this resistance to surrogacy is the least valid or convincing, because it ultimately depends on the arbitrary cultural meaning attributed to surrogacy, pregnancy, and "the significance we give to the human body," all things which affect human lives but which are also subject to the changing whims of human society.

For example, the 1984 British government committee report suggested that "it is inconsistent with human dignity that a woman should use her uterus for financial profit and treat it as an incubator for someone else's child," in part because this threatens to undermine the traditional belief in an inviolable mother-child bond.

Opponents who criticize commercial surrogacy from this perspective frequently attempt to differentiate between commercial surrogacy and "altruistic" surrogacy, in which a surrogate carries a child without a fee, but this distinction is merely nominal, because the lack of an explicit payment structure does not make the decision to become a surrogate any less transactional, and furthermore, the potential for exploitation exists in either case.

Before considering how the law actually treats surrogacy, then, it is becoming clear that a general prohibition on commercial surrogacy represents a kind of undue restriction on the personal and financial autonomy of women, because there is no sufficient, universally applicable justification for prohibiting commercial surrogacy, even if there are problems with the concept in both theory and practice. In short, if the decision to be or not to be a surrogate is considered a question of a woman's control over her own body, then there is not enough compelling justification for lessening this degree of immediate control. In the same way that restrictions of other rights require a sufficient justification, even if the exercise of those rights might bring with them non-ideal consequences, so too does the restriction of this reproductive autonomy require a sufficient justification, a justification that has not been provided.

Firstly, it is difficult and maybe even impossible to argue that the potential for exploitation inherent in commercial surrogacy contracts is unique or special, either in its degree of exploitation or form. Even if the decision to become a surrogate cannot be called an entirely informed or free decision, this is true of any decision taken within capitalism, because capitalism circumscribes and permeates every decision by commodifying everything. In this light, the potential for exploitation in regards to surrogacy is only novel in the sense that the commodification of women's bodies has until very recently dealt with control and coercion over the entirety of a woman's body, instead of simply one element of it. Thus, compared to traditional notions of marriage that depended on complete control over a woman's body, the idea of commercial surrogacy is positively progressive, because it at least allows women a greater say in how their bodies will be used by society; while undoubtedly there are those who would rather reproduction be located outside of the body altogether so as to remove the monopoly women's bodies are currently forced to hold over the reproduction of humans, until that point it seems like a productive effort would be interested in at least giving women more precise control over their bodies, even if those bodies are still forced to remain part of a capitalist system that unfairly exploits them.

Secondly, the idea that commercial surrogacy somehow corrupts or devalues traditional notions of the human body and the relationship between mother and child is insufficient to justify a prohibition of commercial surrogacy, because there is no evidence to suggest that the maintenance of these traditional notions is inherently good. Furthermore, it is a fallacy to assert that the human body is inherently valued by society and that the commercialization of a woman's uterus somehow violates a standard of value for the human body, because even though organ trafficking is outlawed, actual human bodies are routinely violated on a daily basis as part of the "normal" functioning of contemporary society. As such, the notion that a woman's body is somehow so valuable and inviolable that it cannot be exploited by that woman for profit is almost laughably absurd, because although its proponents get to pretend that they hold some kind of morally superior position, in reality this is merely a condescending, paternalistic response to changing social standards that is aimed more at shoring up the foundations of traditional, conservative values than in maintaining any kind of genuinely ethical standard of treatment for human bodies in general and women's bodies in particular.

Thus, one can answer the first portion of the central research question of this study, namely, whether or not commercial surrogacy is acceptable, and, from that, whether courts should reject the rule that says surrogate mothers cannot be forced to give up the children they have borne. In regards to the first portion of this question, the above analysis of the potential ethical problems relating to commercial surrogacy suggest that commercial surrogacy should be permitted despite the potential moral and legal quandaries it might raise, because there is simply not a compelling enough argument to justify restricting women's control over their bodies in this way. Put simply, women should have the right to rent out their wombs if they would like to, in precisely the same way that anyone engaged in capitalist labor essentially rents out the products of his or her body to the capitalist system at large.

However, this does not mean that commercial surrogacy should continued to exist in the legally and ethically murky way that it currently does, because there is an important difference between allowing a behavior in principle and approving of its implementation in practice. From this perspective, a more complete response to the question of whether or not commercial surrogacy should be allowed would argue that it should be allowed, but only within a more universal and intentional legal framework than that which currently exists. This leads one inexorably to the second portion of the question at hand, namely, whether courts should be allowed to compel women to hand over the babies they have gestated as part of a surrogacy arrangement.

Before getting into the state of current law concerning commercial surrogacy, it is possible to answer this second portion of the question from a purely theoretical perspective. In the same way that prohibiting commercial surrogacy would require a reasonable and compelling justification for infringing on the rights of women to control their own bodies (regardless of how limited or problematic that control is), so to would allowing a woman to effectively break her contract and attempt to keep a child require a compelling justification above and beyond any traditional concern for a mother-child bond or a belief in the inviolability of a woman's body. With this in mind, it is difficult to imagine a compelling argument for allowing a surrogate mother to keep a child against the wishes of the commissioning parents, because the freedom to rent out part of one's body in a commercial contract must bring with it the obligation to fulfill that contract, even if the terms of that fulfillment are less attractive once the process has begun or been completed.

The belief that the rule prohibiting courts from forcing a surrogate to give up a child has no place in a modern society is essentially based on a practical ethical analysis of the situation. Regardless of one's belief in the ethics of commercial surrogacy, the fact remains that it exists and has rapidly established itself as an option for individuals seeking alternative methods of reproduction, such that any changes to its permissibility now will likely have minimal influence on the market for commercial surrogacy, other than to potentially drive it underground. Because of this reality, one must determine the best practices for ensuring that commercial surrogacy is safe, mutually beneficial, and as productive as possible for all stakeholders. Thus, legal considerations regarding commercial surrogacy should start from the position that it is and will be a reality for the foreseeable future, and furthermore, that this reality is by definition one in which traditional notions of family, and particularly the bond between a mother and gestated child, are largely irrelevant.

Were the current legal frameworks governing surrogacy set up according to this view, then the only question would be the best policies for ensuring the transparency and ethical soundness of the surrogacy process, from the initial pairing of commissioning parents and surrogate to the various procedures necessary along the way. There is already sufficient research in this area to begin developing best practices, and in an ideal world the conversation would move rapidly beyond the permissibility of commercial surrogacy to the best ways of implementing in a fair, ethical fashion.

However, an ideal world does not exist, and the current legal frameworks that do exist are haphazard and woefully insufficient.

As mentioned above, the British government did not go so far as to outlaw commercial surrogacy, but it did take a number of steps to make it more difficult in order to discourage the practice. The most dramatic instance of this position takes the form of the rule against compelling the transfer of a child against the will of the surrogate out of the belief that "a surrogacy arrangement should be unenforceable in all its aspects," meaning that while surrogacy arrangements can be made, in practice the court will not consider them to be binding and will instead consider the case along other lines, such as the biological claim to parenthood offered to those commissioning parents who have contributed biological material.

Unfortunately, this decision to essentially ignore the possibility that a surrogacy arrangement could be treated like other contracts has led to a patchwork of different rulings and laws that only make dealing with surrogacy more difficult as ever more complex surrogacy arrangements continue to be made.

The lack of universal standards for dealing with surrogacy contracts has led to calls for more uniform legislation and standards across the world, but these calls have largely gone unheeded.

As a result, surrogacy contracts must be considered on a case by case basis, leading to situations such as that created by the 1987 Family Law Reform Act, which stated that if a surrogate happened to be married and the pregnancy was initiated with the artificial insemination of the commissioning father's sperm, that father's parental rights would be forfeit and would instead be granted to the husband of the surrogate.

Thus, in its attempts to discourage the practice of commercial surrogacy, the law in many cases has instead had the effect of allowing commercial surrogacy while preventing the kind of regulation and uniform application of parental rights that would discourage the most exploitative elements of commercial surrogacy.

In other words, the attempt to forcefully maintain traditional notions of the family, and particularly the supposed bond between mother and child, has in the end resulted in a perversion of the notion of the family. This process is indicative of a moral and traditional order that places more emphasis on the rote repetition of cliches and stereotypes than in the actual, empirical investigation of human behavior and the techno-social trajectory of humanity, and as a result it is unable to effectively account for the observed realities of the commercial surrogacy industry. As technology progresses more and more rapidly, it is becoming clear that holding onto outdated concepts will only cause further pain and difficulty later on.

Somewhat paradoxically, in attempting to "protect" the family and women's bodies from the supposedly corrupting influence of commercialization and commodification, the current legal structure has had the effect of disrupting families even more while paternalistically denying women autonomy by suggesting that they are not responsible for the commitments they might make as part of a surrogacy contract.

This approach is infantilizing because it suggests firstly that women cannot make rational economic and commercial decisions when it comes to their own bodies, and secondly, that because of this inability women should be exempt from contractual obligations. A more respectful approach would recognize that in a technologically advanced society, women should be granted as much freedom as possible to do whatever they would like with their bodies, but at the same time be required to fulfill contractual obligations related to the use of those bodies.

It is difficult to deal with this question without bringing too much emotion or idealism into the conversation, because the image of a court ordering a new (surrogate) mother to give up the child she has just carried to term and has apparently become attached to is one that no one would be excited to see. However, the likelihood of this kind of event arising is largely due to the fact that commercial surrogacy itself is not well regulated or discussed, such that there are individuals becoming surrogate and commissioning parents who might not otherwise had they had access to greater information and resources. This leads one to another rather paradoxical observation, namely, that even those governments interested in reducing surrogacy would actually do well to provide a comprehensive, uniform standard of dealing with surrogacy contracts, because the public educations service such a standard would provide would likely help to rein in the largely unregulated commercial surrogacy business. In the same way that those interested in reducing teen pregnancy would do best to start from the assumption that teens will be having sex, governments, legal systems, and bioethicists would do well to start from the assumption that commercial surrogacy will be a factor so long as the technology is available. If one wishes to curb a particular behavior, it is best to start by educating the people engaged in that behavior, and a more uniform legal standard that includes the obligation to follow through on contractual obligations will go a long ways towards educating the relevant population.