For sale: one womb

In a world where you shouldn’t have to wait for anything, why wait nine months for your child to be born?

This is the marketing pitch of Silver Sling, a Manhattan-based surrogacy clinic. Silver Sling offers ‘chemically accelerated births’ that can shorten the duration of surrogate births to three months. Wealthy clients who wish to have a child but do not wish to undergo pregnancy themselves – much less have to wait nine months to have a child – may pay for these accelerated pregnancies as a means of convenience and time efficiency. Silver Sling enables them to have a child in three months by transferring the couple’s embryo to the uterus of another woman who agrees to act as a surrogate for a fee. These surrogates are, for the most part, women from the lower end of the economic spectrum.

Lydia is one of these women. She is a Russian immigrant in her late 20s and is considering becoming a surrogate for the third time. In doing so, she will make enough money to bring her brother to the USA from Russia, something she promised her dying mother she would do. This is despite the fact that undergoing a third accelerated pregnancy will make her sterile, ending her own dreams of having a child with her boyfriend, Stephan.

No, this is not a current real-life scenario. This is the fictional scenario that is portrayed in Silver Sling, a ten-minute film by director Tze Chun. Silver Sling is part of Futurestates, a series of independent short films that aims to transform current complex social issues into visions of what life could possibly be like in the years to come. Although Silver Sling is set ten years in the future, and despite the fact that several of the concepts portrayed in the film take science beyond its current limitations, many of the ethical issues raised in the film are relevant to the practices of some surrogacy clinics today.

Surrogacy is an arrangement whereby a woman carries and delivers a child for another couple. In some cases, the surrogate mother is genetically related to the child she promises to give up. She is the egg provider, either through natural intercourse or artificial insemination. This is termed ‘partial’, ‘straight’ or ‘traditional’ surrogacy. In other cases, the surrogate provides only ‘gestational services’. Both the egg and sperm will come from the ‘commissioning’ couple with the resultant embryo being implanted into the surrogate. This is termed ‘full’ or ‘host IVF’ surrogacy. The reasons that have been listed as to why a couple would consider a surrogacy arrangement are many and varied. They range from medical impairments which may be serious (for example, risk to life) or minor (aggravating varicose veins) during pregnancy, to the inconvenience that pregnancy would entail.

‘Commercial’ surrogacy is an arrangement in which the surrogate mother is paid a fee for carrying and giving birth to the child, and for subsequently giving up that child and all associated parental rights to the commissioning couple. This differs from ‘altruistic’ surrogacy whereby the only exchange of money is compensatory (for example, for travel and medical costs, loss of earnings, maternity clothing, prenatal vitamins, etc.) but the surrogate mother herself is not paid a fee. She is generally motivated by altruistic reasons, although what exactly constitutes as being ‘altruistic’ in the context of surrogacy is often debatable.

There are claims that commercial surrogacy is morally objectionable because it is exploitative, although this is not to suggest that surrogacy arrangements of the non-commercial kind are not often opposed upon moral grounds as well. The exploitation objection argues that commercial surrogacy would exploit poor women, like Lydia, by coercing them into becoming surrogates when they would prefer not to do so if it were not for their desperate financial situation.

The exploitation objection appeals to the notion of invalid consent. It argues that the wrongness of entering into a commercial surrogacy agreement under economic necessity revolves around the fact that the surrogate mother is coerced, therefore rendering her consent invalid. For example, I might agree to hand over my wallet to an armed robber who threatens to attack me with a knife in a dark alleyway; however, the robber’s holding of a knife to my chest leaves me in a bargaining position so inferior to his own that I have no alternative other than to comply with his demands.

The armed robber case is an obvious example of coercion. The robber has coerced me into giving him my wallet because he has threatened to make me worse off by harming me unless I comply with his demands.

Now consider Nozick’s infamous drowning case:

A comes upon B, who is drowning. A proposes to rescue B if B agrees to pay A $10,000. A and B know that there are no other potential rescuers.

Unlike the armed robber case, A is not threatening to harm B or make B worse off as B would have drowned anyway if A had not appeared. However, it could be argued that A has a moral duty to rescue B without compensation (provided, for example, that it is not likely that A would have to risk A’s life in order to save B). Although A is proposing to benefit B and improve her immediate situation, what A is actually doing is proposing to make B worse off (if B does not compensate A) relative to what B should rightfully expect from A. Therefore, relative to this moralised baseline, it could be argued that A is coercing B because A is threatening to make B worse off. B’s consent is invalid and thus B is being exploited.  

Bearing these cases in mind, is commercial surrogacy exploitative? Is it similar to the armed robber and drowning case in that the desperately poor surrogate is being exploited?

Some people are particularly anxious about the differences in social and economic status between surrogates and commissioning parents, fearing this would lead to poorer women being coerced. If it were the case that the commissioning parents were morally obliged to help the poor woman without demanding surrogacy services in return, but threatened not to act in accordance with this duty unless she became a surrogate for them, then it would seem that, like B in the drowning case, the poor woman is being coerced. However, this seems unlikely because, unlike A in the drowning case, commissioning parents have no moral obligation to help potential surrogates without demanding anything in return (unless, for example, the commissioning parents were extremely wealthy, or in other extreme cases where it could be argued that this duty might exist). The commissioning parents’ proposal is an offer to benefit, but for a price. And offers do not coerce.

However, if we were to hold the view that society as a whole has a duty to ensure all citizens have a certain level of welfare, but makes it the case that the only way in which the desperately poor woman can obtain this level of welfare is by becoming a surrogate, we would agree she has been coerced and therefore has been exploited. Of course, this largely depends upon whether or not we accept that society has this moral duty, and this is often contentious. In addition, it also relies upon the assumption that commercial surrogacy would attract a large number of poor women. A study by the former US Office of Technology Assessment suggests that most commissioning couples tend to be well-off and well-educated. By contrast, most surrogate mothers earn just above the poverty line, and less than 4% of surrogate mothers have received graduate school educations. Nearly half of surrogates are unemployed, receiving financial assistance, or both.

Although there are good reasons to suggest that commercial surrogacy can be exploitative, it does not necessarily follow that commercial surrogacy should be prohibited for this reason.

Firstly, commercial surrogacy is not fundamentally different from some other types of employment. One could imagine a scenario in which a desperately poor woman is coerced into prostitution. Perhaps what does makes surrogacy different is that it is potentially harmful. There are, of course, the physical harms associated with pregnancy that a woman who is pregnant with her own genetic child might be willing to risk. She might think these risks are worth taking in exchange for the benefits she will obtain through motherhood and the raising of a child she loves. The surrogate mother who gives up the child and all associated parental rights once it is born cannot claim these benefits. Moreover, there are well-documented psychological harms associated with carrying a foetus to term and then having to give up that child once it is born. It has been suggested that surrogate mothers often experience grief upon giving up their children. However, similar considerations of psychological harm may apply to prostitution given the link between a person’s sense of identity and sexuality, or to any other profession that a desperately poor person might be coerced into accepting because of their financial situation. It would seem inconsistent to ban commercial surrogacy for the reason that it is exploitative, yet at the same time permit other practices that may be equally so. Prohibition for this reason would seem excessively restrictive as it would unsuccessfully single out commercial surrogacy; rather, it would count against many other practices.

Secondly, if we assume that the desperately poor woman has no other way of gaining access to the money she needs, it would seem unreasonable to deny her of the opportunities that commercial surrogacy may provide her with simply to prevent her from being exploited. This is not to say that exploitation should be morally justified. But as Posner suggests:

To someone who is desperately in need of $10,000, a court’s refusal to allow her to obtain it will seem a hypocritical token of concern for her plight, especially since the court has no power to alleviate that plight in some other way.

Or, as Savulescu puts more bluntly:

It is double injustice to say to a poor person: ‘You can’t have what most other people have and we are not going to let you do what you want to have those things.’

Perhaps, rather than the outright prohibition of commercial surrogacy, a better solution would be to provide these women with other non-exploitative methods of making money. If the goal is to eliminate exploitation, prohibiting one form of exploitation would simply replace it with another. If desperately poor women have no better way of making money than by entering into commercial surrogacy agreements, and if this means of obtaining money is suddenly made no longer available to them, they must resort to less desirable means of improving their financial situation. Instead, sensible regulation, rather than outright prohibition, and focussing upon altering the unequal distribution of power and wealth that generates these exploitative situations in the first place would be the appropriate response.