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Introduction
The advent of new reproductive technologies hasbrought
unprecedented opportunities to infertile indi-viduals wishing to
have children. Among these oppor-tunities is commercial surrogacy,
whereby a woman is commis-sioned and paid a fee (above and beyond
compensation) tocarry the fetus of another individual. After giving
birth, thechild is delivered to the commissioning parent(s), who
raisethe child as their own and hold all parental rights.1,2
Commercial surrogacy is further subdivided into partial andfull
surrogacy. In partial surrogacy, the surrogate is the geneticmother
and provides the egg from which the child develops.Full surrogacy
refers to arrangements in which the gametes areprovided by the
commissioning parent(s) and the surrogateacts solely as a
gestational host.2,3 The practice of commercialsurrogacy does bring
with it several ethical concerns, however.Some have criticized the
practice, comparing it to the com-modification, the transformation
of a non-commodity into acommodity, not only of children, but also
of the reproductivecapacities of women.4 Others have likened it to
new-wave pros-titution.5 On the other hand, advocates of the
practice havedefended it on the grounds that it is no different
than spermdonation.6
This review will analyze the controversy surrounding com-mercial
surrogacy under the guidance of several ethical frame-works. It
should be noted that commercial surrogacy is not thesame as
non-commercial or altruistic surrogacy. In the latter,the surrogate
is not paid for her services and is motivatedmainly by a desire to
help an infertile couple have a child oftheir own.7
CaseTo help navigate the ethical analysis of commercial
surro-
gacy, the following is a prototypical clinical case based
looselyon the results of a study analyzing the characteristics of
44 sur-rogate pregnancies:8
Mary, a 25-year-old female, is seeking to become a par-tial
commercial surrogate. She is unmarried, with a two-year-old son.
She has a high school education and a 10pack-year smoking history,
but quit smoking one yearago. Presently, her only source of income
is welfare. Herannual household income is approximately $23,000.She
has consulted a surrogacy agency and met withFrank and Emma, the
commissioning parents. Frankand Emma have an average household
income of$400,000. Emma is unable to have children as a result ofa
total abdominal hysterectomy with bilateral salpingo-oophorectomy
(TAH-BSO) to treat Stage III ovariancancer. They have agreed to pay
Mary $10,000 in addi-tion to any medical fees to be inseminated by
Franks
sperm and carry the child to term. Mary hopes that themonetary
compensation from the surrogacy will helpimprove her financial
situation. It offers an effectivemeans of income given her minimal
education.Is it ethical for Mary to carry through with
commercialsurrogacy?
Deontological ArgumentThe commodification argument against
surrogacy is deon-
tological in principle. As outlined by Anderson, a commodity
isdefined as a good or service that is governed by market normsthat
regulate its production, exchange, and enjoyment.However, market
norms may be objectionable if the produc-tion and distribution of a
given good or service fail[s] to valueit in the appropriate way.4
Deontology, the ethical theory con-cerned with duties and rights,
proposes a similar logic, statingthat it is unethical to treat
beings worthy of respect merely asmeans to satisfy ones own
interests or ends. Ultimately, com-mercial surrogacy commodifies
both the reproductive capacityof the surrogate and the rights of
the newborn child. As such,this practice fails to acknowledge these
intrinsically valuablehuman beings and thus violates the
deontological tenet ofrespect for persons. Van Niekerk & van
Zyl further explore thenature of reproductive labour by
stating:
What distinguishes womens reproductive labour fromother forms of
labour, [is] that the productis notsomething but someone...[A]
persons relationship withmaterial things is instrumentalist; things
are means to anend, but not ends in themselves. Peoples
relationshipsto other people, and mothers relationships to
theirinfants in particular, are manifestly different. Childrenare
not means, but [rather] ends in the relationshipswith their
mothers[and] mothers regard the relation-ship as a meaningful end
in itself, and notas means tosome other end.3
As such, in the case of Mary, the use of an unborn child asa
means to subsequent financial gain, rather than accepting itas an
end in itself, is in clear conflict with deontological
inter-pretation.
Deontologys second tenet requires the need for ethicalprinciples
to be universalizable in asking an individual to actonly on that
maxim through which [he/she] can at the sametime will that it
should become a universal law.9 To investigatethe
universalizability of commercial surrogacy, we may consid-er two
hypothetical additions to Marys case:
Consider the scenario where Mary has an annual house-hold income
of $100,000. Given her new financial circum-stances, it is highly
improbable that she would seek commercialsurrogacy as a means of
further financial gain. Returning to
FeaturesPhilosophy and Medicine
Commercial Surrogacy: Commodification or Choice?
Steven Orlov, B.Sc. (1T0), Faculty of Medicine, University of
TorontoDavid Orlov, H.B.Sc. (0T9), Faculty of Medicine, University
of Toronto
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UTMJ Volume 84, Number 3, May 2007178
universalizability, Marys contradictory actions are dependenton
her financial situations, and are at odds with the ideal thatone
should act by a universal standard, independent of
cir-cumstance.
Consider a situation in which all children are born via
com-mercial surrogacy, as would be the case if it were a universal
law.This construction is typical of most slippery slope
arguments,which contend that the loosening of ethical standards may
leadto social chaos.10 In a world of commercial surrogacy, it is
feasi-ble to envision a distinct separation of classes in which the
poorbear children for the rich. Such a society is remarkably
similarto the fictional dystopia presented by Margaret Atwood in
hernovel, The Handmaids Tale, in which Handmaids are fertilewomen
whose social function is to bear children for the
socialelite.11
Both of the above scenarios suggest that commercial surro-gacy
is in conflict with the deontological principle of
universal-izability.
The Role of AutonomyTo refute the ethical merit of commercial
surrogacy, one
must show reason to overrule a voluntary transaction
betweencompetent adults. Indeed, several advocates of the
practicehave raised the issue that a surrogates decision to carry a
childis entirely voluntary, and thus overruling it would be a
breachof her autonomy. Epstein explains that the basicpresump-tion
should be set therefore in favour of voluntary exchange.12
However, it should be noted that valid informed consentrequired
for any medical procedure under the principle ofautonomyis far more
rigorous than mere voluntariness2
Consent can be given despite underlying covert duress or
coer-cion, thus rendering the consent involuntary.13 In a
well-devel-oped argument, Wilkinson introduces the concept of
omissivecoercion to question the validity of consent in commercial
sur-rogacy agreements. The theoretical framework is as follows:
Aomissively coerces B to do X if and only if: (1) A has a duty todo
Y for B; and (2) A proposes/threatens not to do Y for Bunless B
does X.2 Applying this rubric to the practice of com-mercial
surrogacy, with a largely egalitarian outlook on distrib-utive
justice, a paid surrogate may be the victim of omissivecoercion
if:
The commissioning parents have a duty to help her[on charitable
grounds] without demanding surrogacyservices, but propose
(threaten) not to act in accor-dance with this duty unless she
provides surrogacyservices.Society in generalhas a duty to ensure
that she has a
certain level of welfare, but makes it the case that shecan only
reach this level of welfare by selling surrogacyservices.2
The latter of these premises is founded on the ideal of
thewelfarist assumption, wherein society has an obligation toensure
that the prospective surrogateobtains a certain levelof welfare [or
well-being].2 Reflecting on the case of Mary, theargument that she
may be a victim of omissive coercion is asfollows:
Based on the welfarist assumption, society is obliged to
pro-vide Mary with a certain level of well-being (ie. greater
than
$23,000/year). Alternatively, given their financial
prosperity($400,000/year), Frank and Emma have a duty to help
Maryattain a higher level of welfare through charitable
means.Either society or Frank and Emma threaten not to provideMary
with the necessary level of welfare unless she acts as acommercial
surrogate. Given the existence of such omissivecoercion, Marys
consent to perform the commercial surroga-cy is invalid.
Thus, the absence of valid informed consent in Marys deci-sion
to undertake the surrogacy arrangement invalidates theprinciple of
respect for autonomy. As such, commercial surro-gacy appears to
contradict the assertions set forth by the ethi-cal framework of
principalism.
Utilitarian ViewThe case in support of commercial surrogacy has
often
been defended on utilitarian grounds. Under the greatest
hap-piness principle, which is synonymous with the principle of
util-ity, ethical decision making should be based on attaining
thegreatest happiness of the greatest number.14 Accordingly, it
isapparent how a successful commercial surrogacy agreementoffers
benefits, i.e. happiness, to those involved. The followingare some
potential benefits in the case of Mary: (1) Mary willbenefit
financially by receiving $10,000 to help improve herquality of
life; (2) Frank and Emma will benefit physically, psy-chologically,
and emotionally, having overcome the obstaclesof infertility and
acquiring a child genetically related to Frank;and (3) the unborn
child will benefit by entering a lovinghome and being raised by
parents who can provide him/herwith a high standard of life.
However, these benefits must beviewed in light of several
unconscionable and unquantifiablehuman costs. As presented by
Anderson, most surrogatemothers experience grief upon giving up
their childrenin 10percent of the cases, seriously enough to
require therapy.Such grief is justifiable, considering that her
labour is alienat-ed, because she must divert it from the end which
the socialpractices of pregnancy rightly promotean emotional
bondwith her child.4 Inevitably, the strong emotional
connectionsexperienced by some surrogate mothers and the children
towhom they give birth have led to numerous legal disputes overthe
childrens custody.15 These events have prompted someindividuals,
such as Prokopijevic, to suggest that:
the surrogate mother might be allotted a certain peri-od of time
in which she could change her mind andkeep the newly-born child,
with corresponding com-pensation being paid to the [commissioning
parents],including the expenses arising as a result of hospitalcare
and the breaking of the contract.16
However, such a resolution undermines the legitimacy ofthe
pregnancy with respect to the commissioning parent(s).According to
Van Niekerk and van Zyl, although the [com-missioning] female
partner was not physically pregnant, [boththe surrogate and the
commissioning parent(s) were]preg-nant in the social and
psychological sense of expecting achild.3 To deny the commissioning
parent(s) of their childwould cause the same alienation
Prokopijevic was trying toremedy. Lastly, it should be noted that
commercial surrogacymay have long-term implications for the
children born from
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Commercial Surrogacy: Commodification or Choice?
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UTMJ Volume 84, Number 3, May 2007 179
these surrogacy agreements. In particular, Anderson arguesthat,
given the nature of their birth, Would it be any wonderif a child
born of a surrogacy agreement feared resale by par-ents? or that,
children of some surrogate mothers [thoseborn without surrogacy
agreements]express a sense of loss atbeing deprived of a sibling.4
Given these socially complex con-sequences, the utilitarian
argument in favour of commercialsurrogacy requires a broader
analysis of utility prior to deter-mining the correct course of
action. In the case of Mary, the fol-lowing are some potential
consequences: (1) Mary may, againsther will, be forced to give up
the child with whom she sharesan emotional and genetic bond; (2)
Frank and Emma mayexperience tremendous grief for the loss of the
child shouldMary choose not to honour the surrogacy agreement; and
(3)the unborn child may experience distress towards the
parentalguardians, be it Mary or Frank and Emma, due to a fear
ofbeing resold. Comparing these negative consequences to
theaforementioned benefits of commercial surrogacy requiresone to
perform the unimaginable task of quantifying emotion-al agony.
Given that such quantification cannot be made onany universally
agreed-upon grounds, the case for commercialsurrogacy based on
utilitarian principles is questionable.
Law and LegislationHaving considered the ethical implications of
commercial
surrogacy, it is worthwhile to examine the need for any
neces-sary legal and legislative interventions. At the present
time,Canadian laws concerning commercial surrogacy greatlyreflect
the recommendations proposed by the RoyalCommission on the New
Reproductive Technologies. As partof their review, the commission
issued recommendation 199,which makes surrogacy a criminal offence,
[and] directed thefederal government to legislate against it in the
strongest pos-sible way:17
to prohibit advertising for or acting as an intermediary tobring
about a preconception (i.e. surrogacy) agreement, andto prohibit
receiving payment or any financial or commercialbenefit for acting
as an intermediary, under threat of criminalsanction. It should
also legislate to prohibit making paymentfor a preconception
arrangement, under threat of criminalsanction.18
The commission further recommended that provincialbodies,
particularly the Colleges of Physicians and Surgeons,adopt strict
codes of conduct, disciplinary measures andsevere penaltiesagainst
members involved in brokering orperforming assisted inseminationto
facilitate a preconcep-tion (surrogacy) arrangement.18 However,
despite being well-intentioned in protecting against surrogate
exploitation andcondemning the unethical practice of commercial
surrogacy,the commissions recommendations may have
unforeseenimplication; chiefly, the legal prohibition of commercial
surro-gacy may undermine the welfare of prospective
surrogates.2
This idea is based on the assumption that much of the
motiva-tion to pursue commercial surrogacy comes as a result of
finan-cial hardship. As such, the prohibition of commercial
surroga-cy in the absence of alternative mechanisms to help ensure
thewelfare of prospective surrogates, may encourage practices
thatare more dangerous, exploitative, and morally objectionablethan
the practice of commercial surrogacy.2 For this reason,members of
government should consider alternative methods
to improve the welfare of individuals who resort to
commercialsurrogacy, prior to strictly forbidding it.
ConclusionThe ethical implications of commercial surrogacy are
ques-
tionable on several grounds. (1) From a deontological
per-spective, the use of an unborn child as a means to some
otherend is unethical, as is the absence of universalizability in
thepractice of commercial surrogacy. (2) Employing the
welfaristassumption, commercial surrogates are omissively coerced
intoparticipating in surrogacy agreements, thus rendering
theirconsent invalid and their autonomy violated. (3)
Furthermore,the negative emotional consequences that may arise from
asurrogacy arrangement challenge the prevailing justification
ofcommercial surrogacy on utilitarian grounds. However, despitethe
unethical nature of commercial surrogacy, considerationshould be
given to the existing laws prohibiting it, in order toensure the
welfare of prospective surrogates.
Returning to Marys case within the context of the
abovediscussion, she should not proceed with the commercial
surro-gacy agreement, for it cannot be sanctioned by ethical
theories.
AcknowledgementsThe authors would like to thank Dr. Kerry W.
Bowman fromthe University of Toronto Joint Centre for Bioethics for
his crit-ical review of the manuscript.
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Commercial Surrogacy: Commodification or Choice?
