The purpose of this paper is to explore the business of commercial gestational surrogacy in regard to international surrogacy contracts and if said contracts are exploitative of the gestational mothers and whether commercial gestational surrogacy should be internationally regulated. Commercial gestational surrogacy is a surrogacy arrangement in which a gestational mother receives payment from a couple requesting the child for carrying the child to term, allowing the gestational mother to give birth to a child to whom she is not genetically related through the donation of a sperm and egg, which are fertilized outside of the body and implanted into the surrogate. The gestational mother is compensated, either after giving birth or during the pregnancy, between $4,000 and $10,000 in India, which is less than that of compensation benefits in United States surrogacy practices. The main arguments surrounding commercial gestational surrogacy are categorized into welfare, exploitation, and commodification. Commercial gestational surrogacy is mutually exploitative, divided between both parties; the gestational mother is taken advantage of and unfairly compensated by the “adoptive parents”, while the persons entering into the contract gain unfairly through the transaction. There is nothing morally objective through this transaction because the surrogate benefits from the welfare gain transcribed by the couple requesting surrogacy. The radically induced gender stereotypes and unbalanced distribution of international wealth cultivate opportunities of exploitation by couples of wealthier origins.
Before discussing the ethics of commercial gestational surrogacy, it is necessary to define terms related to the subject. In debates about surrogacy, exploitation is defined in two moral senses. It amounts to be taken as evil in measure of using a person as a “means to their own end however desirable the consequences, must always be liable to moral objection. Such treatment of one person by another becomes positively exploitative when financial interests are involved.” (Warnock) Unfair advantage exploitation involves a person but does so unjustly and without consent from the other person receiving the unfair advantage. In a related sense, coercion uses force to get someone to do a relatively specific thing that they don't want or wouldn't otherwise consent to do. (Cherem) Omissive coercion branches from this through a threat not to give someone to what they have a right to receive. This is a threat not to benefit someone by exploiting their position of welfare by wishing to make someone worse off. The notion of incentives/inducements, on the other hand, do not use any form of force, but rather uses something, usually of monetary value, to influence behaviour. (Cherem) These definitions provide the basis for determining why commercial gestational surrogacy is considered so controversial in relation to exploitation, welfare and commodification.
In the position of determining why commercial gestational surrogacy is morally impermissible, it is necessary to take into account the four principles of medical ethics. It is a health professional's duty to uphold a patient's autonomy, which ties in with the principle of non-maleficence, which promotes the avoidance of unnecessary harm to the patient. Coercion does not abide by this principle in accordance to commercial gestational surrogacy, particularly in terms of omissive coercion. The underpayment of gestational surrogates are victims of omissive coercion in two ways; 1) The adoptive parents have a duty to help the surrogate without demanding surrogacy services in return, but threaten not to act in accordance with this duty unless she provides surrogacy services. 2) Society has a duty to ensure that the surrogate maintains a level of welfare, but she can only reach this level through becoming a surrogate. However, the complexities of these views are not plausible in the case of many adoptive couples, unless they are very wealthy. I would argue that whether a surrogate is coerced or not is determined by an individual's view of society's duty to the poor. With enough omissive coercion, however, the surrogate's consent with not be validated, and exploitation is sure to arise. Exploitation ties in with this notion as well through the likelihood of being underpaid for taking on the risk of pregnancy. Using a large sum of money as an incentive surely changes the mind-set of a poor women in desperate need of income to support herself and her family, however, I believe that there are reasons to think that exploitation is not the basis of arguing that commercial surrogacy is morally impermissible. If commercial gestational surrogacy is underpaid, then what is to say about unpaid surrogacy? Surely commercial surrogacy is more beneficial for the surrogate. If commercial gestational surrogacy is exploitative due to underpaid surrogates, I would argue that this is due to unnecessary pressure placed on the surrogate when payment is involved.
Keeping these implications in mind, the risk of harm that is exposed to the surrogate mother and the child establishes the moral basis for the welfare argument against international commercial gestational surrogacy. International commercial surrogacy is defined as commercial, gestational surrogacy that occurs on an international scale. Most often, the prospective parents reside in wealthier countries and the surrogate in a poorer country. Unlike surrogacy conditions within the United States, many women choose to live in secrecy during the gestational period. This is done while they face poor work conditions and become surrogates to expel debt, and place women in detrimental financial situations, often in developing countries, to choose surrogacy. (McCarthy) It is not clear how these objections would make international commercial surrogacy morally impermissible. Rather, because the surrogacy is on an international scale, the welfare of the surrogate is more at-risk due to different culture standards that view surrogacy in more privatized conditions. Surrogacy practices in India do not involve familial support, as most surrogates lie to their relatives about their surrogacy contract and pregnancy.
Another objectification to international commercial surrogacy is the commodification of women's bodies for the purpose of growing a baby. The economic definition of commodification is moving something into a commercialized market available for sale and purchase. (Hahn) In the case of international commercial surrogacy, the product, a human's womb, is of infinite value, and is unlike global commodities such as coffee or fruit. It is unclear as to why the commodification of the marketing of women's wombs on an international scale is any worse than any assisted reproductive practice performed in regular commercial surrogacy. One philosophical view says that the commodification of surrogate's is wrong because it crosses a religious boundary, and implies that assisted reproduction is immoral. A common feminist commodification argument is that the surrogate mother is the one who is commodified, rather than the child. The women's uterus is treated as a ‘human incubator', which is dehumanizing and belittling to the women's purpose in life and often symbolized as a reproductive machine. (Lieber) I would counter argue these views with a technology advancement so progressive, it would have the ability to transfer a prenatal infant to a gestational mother in order to continue gestation. This type of surrogacy would be lifesaving rather than for the purpose of commercializing the gestation of a child. Rather than treated as commodities, surrogate mothers would be seen as health care workers, or assisted mothers. Both of these options limit a women's autonomy, especially those who lack quality decision making and access to appropriate medical information in developing countries. There is no morally relevant difference between parental transfer or gestational surrogacy itself, however, the commodification of surrogate's is limited on case by case.
Thus far, the welfare and commodification arguments against international gestational surrogacy have been somewhat rejected. The last objection to international commercial surrogacy is exploitation. Commercial gestational surrogacy across borders creates income based conflicts. As defined earlier, exploitation links commodification and welfare together, which have both been addressed separately. The gap between the rich and the poor in different countries, such as a couple belonging in the upper class in the United States and a young woman in New Delhi with a housecleaning job. The surrogate may not have the ability to rationally and autonomously determine if their compensation is enough. Arguments against international commercial surrogacy predicted as being exploitative is not convincing. The main objection I have to this arrangement is that the couple from the United States may not pay a fair compensation to the surrogate. Surrogates may use their compensation to pay off debt, buy a home, or fund education, however, the gestational term is not justified if the surrogate is not fairly compensated and is an act of exploitation. The lack of informed consent from surrogates also conforms to exploitation. With limited assistance from surrogacy agencies and medical professionals, the surrogate does not often know what contract they are signing, and put their right of justice and autonomy on the line. The exploitation of surrogate mothers in an international setting is solely an argument about the violation of status quo. The practice of international commercial should be regulated to establish that society should account for the welfare and safety of its members who need it most.
The practice of international commercial surrogacy is an economic market that non-governmental institutions must have a role in regulating. Policy making through law enforcement will only create more controversy in the matter. The international surrogacy market would benefit from a third-party organization, for example, one such like the Non-GMO Project. Standards could be set with surrogacy clinics to classify the treatment of surrogates within the agency, however, parental issues should not be involved as this would be more for legal agencies. Payment to the surrogate should be an upfront cost rather than after the contract is carried out. Surrogacy clinics should arrange set compensation arrangements in case of multiple deliveries. A standard for safe work environments must also be set. One of the objections to international surrogacy I argued against was the welfare conditions in developing countries, especially poor working environments. Occupational requirements for surrogates should be enforced in order to minimize harm and any physical risks.
I have argued that the only valid objection to international commercial surrogacy is the exploitation of surrogate mothers because of unfair compensation. In order to continue practice, international surrogacy must be regulated. The grounds at which international surrogacy is operated at now is unjust and at the point of violating basic medical principles as well as human rights. Pregnancy, being such a risky and sensitive process, deserves a regulated market across the board, for all parties involved.
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