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...
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,…
