Surrogate Motherhood: Ethics, Law, and Autonomy

Introduction to Surrogate Motherhood

Surrogate motherhood is sometimes referred to as womb renting, where a bodily service is offered in exchange for compensation or, in some cases, for free. Surrogacy is fraught with controversy and complexity due to its implications for women's health and human rights (Feldman, 2018). In American society, people are increasingly grappling with the issues raised by surrogacy. Surrogate mothers act as gestational carriers who carry a pregnancy to term after being implanted with an embryo (Abdullah, 2019). The surrogate mother has no legal claim to the child since she has no biological relationship with the child, and her name does not appear on the birth certificate.

There is no national law regulating surrogacy in the United States, and the fifty states have a patchwork of policies and laws attempting to govern the practice (Feldman, 2018). These laws range from outright bans to complete absence of regulation. The major ethical issue raised by surrogate motherhood is the transformation of a normal biological function of a woman's body into a commercial transaction. The rights of the child are rarely considered. When parenthood is transferred from the birthing mother to the contracting parents, the child is denied any claims to the gestational carrier — a problem that becomes more acute when the gestational carrier is also the egg donor.

Legal Landscape of Surrogacy in the United States

States such as Maryland, Massachusetts, Missouri, Alaska, Georgia, Idaho, Hawaii, Iowa, Kentucky, Minnesota, Montana, North Carolina, Oklahoma, and Pennsylvania have no laws governing surrogacy, yet courts in these states have generally favored surrogacy in their rulings (Abdullah, 2019). Surrogacy is permitted in most of these states provided the surrogate mother receives no compensation. Legal complications arise when the surrogate is compensated beyond pregnancy-related costs. Payment of intermediaries who recruit willing surrogates is also prohibited in many jurisdictions. According to Spivack (2010), the Arizona statute designates the surrogate mother as the legal mother of a child born through surrogate parentage and entitles her to the child's custody. Other states ban the enforcement of surrogacy contracts entirely, likewise making the surrogate the legal mother.

Arguments For Surrogacy: Altruism and Autonomy

Toledano and Zeiler (2017) support surrogate motherhood by framing it as an altruistic act through which a woman offers a profound gift to a couple struggling to have a child. In altruistic surrogate motherhood, no payment or commercialization is involved; the intended parents cover only the pregnancy-related costs and do not directly compensate the surrogate for carrying their child. The surrogate mother decides freely to assist couples who cannot conceive or who face complications with pregnancy (Toledano & Zeiler, 2017). Autonomy is the central ethical principle in this arrangement: the surrogate mother chooses to use her body based on her own informed and uncoerced decision. Most surrogate mothers opting for altruistic surrogacy do so to give intended parents the chance to have a child, and in many cases the surrogate and the intended parents already know each other, making the arrangement more personal and manageable (Toledano & Zeiler, 2017).

Payne (2018) extends the autonomy argument further, maintaining that a woman's right to self-determination should be the decisive factor in whether she becomes a surrogate. Autonomy is the right to determine what is appropriate for oneself based on one's own understanding and willingness. When a surrogate chooses this role voluntarily, prohibiting her from doing so infringes on her fundamental freedom. Although commercial surrogacy leads many observers to assume that women are coerced by third-party actors, Payne (2018) counters that many women choose surrogacy out of a genuine desire to help others. Denying surrogate mothers this opportunity on the grounds that they are being paid is paternalistic. The decision to become a surrogate is deeply personal, and only the surrogate mother herself can know with certainty whether her choice is truly willing.

Surrogate mothers may wish to assist a sister or a close friend, freely offering the use of their womb. The critical question is whether the woman herself determines her participation (Payne, 2018). Preserving the autonomy of the surrogate mother should therefore serve as the moral compass for evaluating the ethics of surrogacy. The Swedish Governmental Investigator has acknowledged the concern that women might become surrogates under pressure from family or friends rather than from genuine willingness (Payne, 2018); however, determining the true motivator is difficult, since surrogacy remains an intensely personal decision.

Conclusion

There are two broad approaches to surrogate motherhood, distinguished by whether the surrogate mother receives payment. The first is altruistic surrogacy, in which the surrogate receives no direct payment for the pregnancy (Toledano & Zeiler, 2017). In this model, the surrogate chooses to promote the welfare of a couple unable to carry a child by offering to do so herself. The intended parents cover only the expenses of the pregnancy. The surrogate does not profit from the arrangement. The second approach is commercial surrogacy, in which the surrogate receives financial compensation for her services. In this model, the surrogate does profit. However, as Okwuosa (2020) points out, commercial surrogacy parallels prostitution in that the female body is commodified — the surrogate uses her body as a commodity to satisfy the desires of another couple or person. This commercial dimension has fueled the growth of breeding firms, and in this model the happiness inherent in childbearing is effectively removed from the surrogate mother (Okwuosa, 2020).

The moral justification of surrogate motherhood ultimately depends on the ethical theory applied. As discussed, states disagree significantly on the ethics of surrogacy, and some have moved to ban it, largely due to concerns about the exploitation of surrogate mothers and potential harm to the child. According to Abdullah (2019), surrogate mothers may be vulnerable to intimidation and exploitation depending on the form of surrogacy practiced. Surrogacy also raises broader ethical questions related to wealth and feminism — whether such an expensive practice is a just use of resources, and whether it reinforces or undermines women's equality. Questions about who becomes the legal parent of the child born from a surrogacy arrangement remain legally and ethically unresolved.

Utilitarian theory evaluates surrogacy as moral when it generates pleasure for the greatest number of people (Houstiuc et al., 2016). Applied to surrogacy, the intended couple's happiness upon receiving a child they could not otherwise have is significant. Some pain may accrue to the surrogate mother after the child is taken from her — pain that intensifies if she was also the oocyte donor (Houstiuc et al., 2016). Utilitarian reasoning suggests this pain can be reduced, for instance by ensuring the surrogate is not also the egg donor, so as to limit the strength of the maternal bond. Because the birth of a child brings more joy to a family than it brings suffering to the surrogate, Houstiuc et al. (2016) conclude that surrogate motherhood is a moral act under utilitarianism: positive effects outweigh negative ones, and the negative effects can be minimized.

Virtue ethics, by contrast, does not regard surrogacy as a fully moral act, because it risks treating the surrogate mother as a mere instrument for the intended couple's goals (Houstiuc et al., 2016). Assessing this requires examining the surrogate's motivations and the arrangement's outcomes. Renting a womb may be considered moral under utilitarianism, since it maximizes happiness for a couple who could not otherwise have a child. However, virtue ethics resists even altruistic surrogacy on the grounds that externalizing childbearing may dissolve family structures, and it categorically rejects commercial surrogacy because it turns the human body into a commodity (Houstiuc et al., 2016).

On balance, utilitarianism provides the more compelling moral justification for surrogacy. In altruistic surrogacy, the surrogate's uncompensated help brings substantial happiness to the intended parents. Even in commercial surrogacy, the surrogate herself may derive satisfaction from the payment she receives. In both cases, surrogacy produces happiness for the greatest number of people involved — the utilitarian standard for moral permissibility. Nevertheless, the exploitation risks, emotional costs to surrogate mothers, and unresolved questions about children's rights mean that the ethical debate surrounding surrogacy remains far from settled.

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Okwuosa, I. K. (2020). An ethical evaluation of traditional surrogacy in Igbo culture, Southeast Nigeria. Sapientia Global Journal of Arts, Humanities and Development Studies, 3(2).

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Spivack, C. (2010). The law of surrogate motherhood in the United States. The American Journal of Comparative Law, 58(Suppl. 1), 97–114.

Toledano, S. J., & Zeiler, K. (2017). Hosting the others' child? Relational work and embodied responsibility in altruistic surrogate motherhood. Feminist Theory, 18(2), 159–175.