Do We Confuse Surrogacy With Prostitution?
Elton John and Nicole Kidman have both recently had children by surrogate mothers. The usual enthusiasm that new babies receive has been tempered by the hostility that sometimes accompanies surrogacy. A thought that occurs to me is whether some moral reactions to surrogacy might be linked with reactions to prostitution.
A quick Google search confirms that I’m not the first to notice the parallels. Some, seemingly those opposed to surrogacy, highlight the use of the body for payment, that women primarily or exclusively play a particular part, and the role of third parties in profiting from the arrangements. Such sentiments seem to have been reflected in the key UK government reports that examined surrogacy, the Warnock Report (1984) and the Brazier Report (1998). The former identified “the use of a woman’s uterus for financial profit, as an incubator for someone else’s child, [as] inconsistent with human dignity” as an argument against surrogacy. The latter stated that “payments contravene the social norms of our society that, just as bodily parts cannot be sold, nor can such intimate services.”
Somewhat surprisingly, prostitution and surrogacy also seem to be regulated in a similar way. For example, in England, Elton John’s home country, undertaking or arranging prostitution is not criminal unless it is for gain, soliciting is illegal and a contract for prostitution is unenforceable (not that anybody appears to have tried to enforce such a contract – the closest case is Pearce v Brooks (1865) where a contract for the supply of an “ornamental brougham” for the purposes of prostitution, could not be enforced). In England, surrogacy is not criminal unless it is for gain, advertising is criminal and contracts for surrogacy cannot be enforced (incidentally, the Brazier Report estimated that in 4-5% of cases, the surrogate mother refuses to give the baby to the biological parents). New South Wales, where Nicole Kidman lives, is introducing a law that similarly provides that surrogacy arrangements are unenforceable, that advertising is criminal and commercial surrogacy agreements are criminal, even they take place abroad.
One way of analysing the issues provides an interesting perspective. This depends on an assumption that morality is an evolutionary adaptation that contributed to our evolutionary fitness. Others may not share this view, but I’m not going to argue the point here. Greene, Singer and others have argued that our radically different modern environment may cause our evolved responses to maladaptive. That is, our moral responses may have contributed to our fitness in the environment in which they evolved, but where our environment is significantly different, our responses may have consequences that do not promote fitness. As surrogacy and prostitution are sensitive topics, I should also make clear that I’m not taking a position on either. Nor can I offer an explanation as to how disapproving of prostitution might promote evolutionary fitness.
Those qualifications aside, what might such an approach indicate? I’d suggest there are two main alternatives. One is that surrogacy is a novelty that our moral faculties have some trouble dealing with and treat in the way that appears most familiar. If surrogacy is relevantly different to prostitution, then our responses could be maladaptive. The other is that surrogacy and prostitution are in fact quite similar and that whatever interests are in play in the one are also in play in the other. If the latter is right, then we may have no cause for concern and can continue relying on our moral faculties just as they evolved. However, if the former is right, then we would have cause to reassess our approach to surrogacy.