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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.

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4 Comment on this post

  1. I find it difficult to see how morality could not be, at some level, an evolutionary adaptation that contributed to our evolutionary fitness, or more precisely that of our ancestors. Who says it isn’t? But I think that care is needed when drawing conclusions with regard to what should be regarded as “maladaptive” today. Maladaptive with respect to what purpose? Passing on our genes to future generations? Do we necessarily care whether we are passing on our genes? We know they want us to, but I for one have no intention of being a slave to my genes (any more than I can help).

    Nevertheless it’s certainly interesting (to me at any rate) to consider from where our moral intuitions have arisen. I would guess that our hostility to prostition has it’s roots in the ancient need to regulate sexual relations (hence marriage etc) to prevent strife, in which case in the modern world it could arguably be considered unnecessary. But again, this really depends on the purpose we want our moral positions to serve. In the case of surrogacy, I would guess that the usual concerns about “playing God”, out-of-control technology and related worries about what it means to be human etc would also play a role (in addition to the ones you’ve mentioned).

  2. Dear Peter, thanks for your message. I should probably make two points. The first is that I suspect that the entirety of our moral faculties are an evolutionary adaptation. That is, rather than being a bias that affects our “real” or “true” intention, evolution affects the whole of our morality. That does not mean a simple gene-centric explanation, but rather that every moral value or intuition that we have bears some relation to evolutionary fitness. This need not be very direct: there is plenty of scope for variation, complexity and many levels of selection, including cultural selection. Evolution requires variation, including moral behaviour that may be reduce fitness to some degree. I do not know of any good account of morality along these lines, but I think that Dawkins and Dennett’s agent/meme approach is too simplistic and that Godfrey-Smith’s Darwinian population approach may provide a better account.

    The second is that, if this is right, then this may give us reason to examine our responses to situations of evolutionary novelty in particular. In the case of surrogacy, it may be the case that we are stigmatising and making criminals out of individuals who are desperate to have children, preventing those people having children and, if they do succeed in finding a surrogate mother, providing no guarantee that their biological children can be part of their family as opposed to that of the surrogate mother. In relation to the last point, it may be that some people’s intutition is that the surrogate mother is the “real” mother (and the surrogate mother may feel this way too), but the situation is way more complicated than that. At present, the “default” option is that the surrogate mother keeps the baby. This may be due to implicit overconfidence that our moral intuitions are saying something valuable along these lines, when in fact they may simply be misfiring.

  3. Many thanks Paul, I think I agree with most if not all of that (haven’t come across Godfrey-Smith’s account before so can’t immediately comment on that). At the same time I still think that, beyond *explaining* morality, we also need to consider *what purpose we want it to serve* before we can coherently talk of our intuitions “misfiring”. I agree it is useful to examine the extent to which they have arisen in situations that are different from the ones that pertain today, but that in itself doesn’t make them wrong. From this point of view I still find some form of utilitarianism promising as a means to forge agreement on these issues.

  4. Luciano from Brazil

    Apparently, surrogacy is the next big thing. A newspaper ( I think The Guardian, not sure) talking about Elton John´s baby called it "the gift for a man who has everything". Of course it was ironic (wasn't it?)

    I live in Brazil. Our law is very rigid about surrogacy – people have to go a long way to prove there is no money involved, including formal aprovation of what is technically called "temporary donation of uterus" in sessions of the Medical Board, with extensive analysis of particular cases. I have participated in such sessions and honestly, I was very amnoyed about the criteria for such permissions.

    I am convinced common sense about surrogacy is very biased with these prejudices of "prostitution", but it is not the only subject. For me, it goes more with "why not selling organs" (or renting) than prostitution. In a pure utilitarian approach, I have difficulties to condemn surrogacy, but is there a protection duty? Do we need to be responsible for not letting the weak be explored? Who are the weaks? Is being paid the only form of being explored?

    The point about our law that could be asked is: Why not charging for that? Do receiving money makes an act less moral than doing it free of charge? Who needs to be protected, from whom and by whom? Why giving is good and selling is so bad? Could "being the uterus of Kidman's baby" (if you are her fan) be an altruistic and acceptable reason?

    Bringing the main subject back:it is socially accepted having sex because someone simply wants it, we accept any futile explanation, but is it immoral if the reason is to pay his/her bills? What is the cutting edge that transforms a given act in a valid or noble act? Is it dichotomic? Should we face and dredge the particular reasons in every case? What should be the moral police (or patrol) to define a righteous surrogacy? When should we deny a request like that? It is very difficult to exclude "gain" in this transaction, although I recognize thathaving such a law is good in the sense it creates a limitation for traffic (long life to bureaucracy??)

    Surrogacy for us is still a technical question, but if this trend arrives here, it will become more and more difficult to analyse it.


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