Saturday, September 17, 2011

What's Wrong With Gestational Surrogacy?

Gestational surrogacy is the arrangement by which a couple arrange to fertilize the woman's egg with the man's sperm, then have the fertilized ovum implanted and gestated in another woman's womb. In the U.S. the practice is regulated by state law, illegal in some states, legal in others, which means that in practice it is legal, since the couple can arrange to do it in a state where it is legal. 

I gather, however, from a conversation with someone who has been researching the subject, that in most of western Europe it is illegal, and that while it is legal de jure to arrange to have it done abroad—India and the Ukraine are apparently the favored destinations—it is made difficult de facto by administrative obstacles put in the way of bringing the resulting infant back to its parents' home country. The U.K. is a partial exception; gestational surrogacy is legal, but only if it is altruistic, which is to say, only if the host mother is not paid for undergoing the inconvenience and risk of bearing another woman's child.

Which raises an obvious question: Why would anyone be against the arrangement? In many cases, it makes it possible for a couple to have a child—their own child—when they otherwise could not. Even in those cases where the biological mother could bear her own child, why should anyone else object if she can find another woman willing to do it for her on mutually acceptable terms?

There are, I think, a number of possible answers, although none that in my view justify the restrictions. One is that the decision to be a host mother is not freely made since it is "compelled" by poverty. This sort of argument is common in a variety of contexts, but I find it hard to make any sense of it. Put in its simplest terms, the claim is that if the potential host mother does not accept the offer she will starve to death, hence accepting the offer is not really a free choice, hence she should not be permitted to make it. Which, if the starting point is correct, means that out of our generous concern for a poor woman we will compel her to starve to death.

A second possibility, following a line of argument originated (I think) in the context of prostitution by professor Margaret Radin of Stanford Law School, is that by permitting a woman to rent out the use of her womb (body) we "commodify" motherhood (sex), cause people to think of it as something to be bought and sold, and so cheapen the human experience. Restated, the claim is that the  transaction of buying sex or renting a womb is  both an exchange and a statement. The exchange is one that, in Radin's view, should be permitted, since the woman owns her own body and so is entitled to decide how it is employed. But the statement, because of its effect on other people's view of their lives, is one that ought not to be made, hence the transaction may, arguably should, be prohibited.

What is bizarre about this argument is that it was made by an American law professor. The American constitution, as routinely interpreted by judges and law professors, contains a very strong protection for freedom of speech, making it a violation of the constitution to prohibit an act, such as flag burning, which is also speech. Following out that principle, Radin's argument ought to imply that even if there were good reasons to prohibit surrogacy or prostitution, the fact that both are speech as well as acts ought to protect them. She, along with those who accept her argument, reaches precisely the opposite conclusion.

A somewhat better argument that might be made against surrogacy is that permitting a couple to produce a child when they otherwise could not means that they will have no need to adopt, hence prohibiting surrogacy benefits children in need of parents. There is some logic to the argument, but its morality is questionable. Surely a legislator willing to forbid a couple from producing their own child in the only way they can in order that they will have to adopt someone else's ought at least to feel obligated to refrain from producing any children of his own until he has adopted at least one.

Finally there comes what I suspect is the real reason. Natural is good, and surrogacy (like IVF before it, and many other things as well) is unnatural. Our grandparents didn't do it, our pre-human ancestors didn't do it, so there must be something wrong with it, something wicked, sinful. Icky. 

And worse still if done for money.


On the principle of full disclosure, I should mention that my granddaughter Iselle might not have come into existence were it not for surrogacy. A hard argument to rebut (see below).


Milhouse said...

Surely the "commodification" argument would apply with nearly equal force to wetnursing for pay, which is a practise that has been accepted, AFAIK, in every human society until the advent of the baby bottle.

jdgalt said...

The "commodification" argument was first applied by Marx to all labor. I believe it has been categorically disproven in Mises' Human Action, and that that disproof can be adapted directly to the arguments against "commodifying" sex or any other human endeavor.

Now back to surrogacy. The only thing relatively unique (in a moral/economic sense) about surrogacy is that, like any other pregnancy, it takes a long time and involves enough discomfort and restrictions that the surrogate mom may very well change her mind partway through. I've heard of this taking three forms: (1) surrogate mom can't stand it any more and wants an abortion; (2) surrogate mom stops caring and starts engaging in dangerous behavior such as drug use; and/or (3) surrogate mom feels such an emotional attachment to baby that she sues to keep it afterward.

For surrogacy to be a viable business, the law needs to clearly decide (set precedents for) what happens in all three cases.

I would want and expect the law to decide them as follows. (1) She can get an abortion up to the time limit that applies to everyone else, but then forfeits her pay and may owe damages for breach. (2) The same laws apply as if it were her own child (but those are hard questions themselves, because of the incentives they create). And (3) the contract should absolutely foreclose this option and should be upheld.

Anonymous said...

The argument about the changing mind of the surrogate mom is the one I hear most often, mostly in the form of John's (3). In its strongest form, it seems to imply that pregnant women are so driven by their hormones that they cannot be independent market participants anymore. Only the most conservative of my discussion partners acknowledge this implication, though.

Eric Rodriguez said...

Are you familiar with Muger's work on euvoluntary transactions?

"Why are different transactions that seemingly make both parties better off frowned on and often made illegal? In theory, all voluntary transactions should make both parties better off. But Munger argues that some transactions are more voluntary than others. Munger lists the attributes of a truly voluntary transaction, what he calls a euvoluntary transaction and argues that when transactions are not euvoluntary, they may be outlawed or seen as immoral. Related issues that are discussed include price gouging after a natural disaster, blackmail, sales of human organs, and the employment of low-wage workers."

Anonymous said...

Religion, Tradition, the 'sanctity' of life, these are all concepts used to restrict other peoples liberties

Id be interested in knowing what difference makes hindus think of sex in such a more open way (the practice of "tantra" comes to mind also)

Our solace is that religion is declining among the youth. I see a bright future of reason ahead! congrats for izzy

David Friedman said...

John suggests a legal approach to problems associated with surrogacy. My understanding, based (I think) on comments by Lee Silver in Remaking Eden, is that the market has already solved the problem. There are a lot of potential host mothers, and professional middlemen in the industry have learned to identify the ones likely to reneg on the agreement and not hire them.

Alexandra Thorn said...

It seems to me that a complete treatment of this question ought to address a eugenics impulse. This could be relevant from a couple of perspectives, either the assumption that parents incapable of producing their own child naturally must have inferior genes, or that by making reproduction into something that you can purchase, you further increase the discrepancy in reproductive potential between wealthy and poor families.

Another thought is that people could have a deep abiding fear that if they open the door to surrogacy, the same line of logic will compel them to legalize prostitution. It's hard to think of logical reasons why prostitution should be illegal either, but it certainly has a lot of cultural baggage, despite being "natural."

Phil Birnbaum said...

I think a large part of it is people's aversion to combining money/profit with "moral" goods like health/education/medicine/children.

As you note, people think gestational surrogacy is OK if money isn't involved.

And, look at organs. People are all for donating organs, they promote it and admire it. But let money enter into it, and they're so appalled they'd rather let the sick person die.

Anonymous said...

The concept that you "own" your body is a uniquely American form of insanity. A body and mind are both integral parts of a human being that is not and cannot be "owned". There are limits on the use of your body for monetary gain. You cannot sell someone the right to torture you to death. Nor can you make your body into child factory. Get a job.

David Friedman said...

I agree that the hostility to money in social transactions is one part of what is going on--but note that in many countries even "altruistic" surrogacy is illegal.

So far as the disgenic argument—that surrogacy lets the "unfit" reproduce themselves—fitness depends on the environment. In an environment which includes the option of reproduction via a surrogate, being unable to bring a fetus to term doesn't make a woman unfit, or at least not very unfit.

I don't think the anti-eugenic argument works very well for the sort of surrogacy I am discussing, where the child ends up with his biological parents. It might be an argument against surrogacy with a (high quality) purchased egg and (high quality) purchased sperm. That's also a much lower tech procedure, since it can be done with no special reproductive technology as all, provided the same woman is willing to be egg donor and "host" mother.

And it's arguably natural, at least on the sperm side, since the usual practice for pair-mated species is monogamy tempered by adultery.

mdavid said...

David, I'm surprised you don't know many potential reasons. The most common is pretty carefully articulated by the largest religion in your country.

Official Catholic teaching: two equal purposes of sex in marriage, unitive and procreative, and both must be present in each sex act.

The issue with surrogate motherhood: if unity and procreation really are inseparable, they're inseparable from both directions. Namely, if it is wrong to separate procreation from unity with the use of artificial contraception, it is equally wrong to separate procreation from unity and have offspring apart from the sexual act of the married couple. In short, no sex without (openness to) babies; no babies without sex.

Certainly one can instinctively and logially see how the separation of sex and babies will lead to an entirely different culture (we see it going on now). Now, my own personal view is that I don't want to live in a society that separates children from their natural creation: abortion, birth control, surrogacy, etc.

Now, I understand the concepts of individual rights and have no desire to restrict others...nor live with the fruits of their culture! So I have always felt local areas (boundaries decided by vote, small as they like) should adopt their own rules, much like states who didn't have to allow trade or immigation into their areas, so nobody could claim their libertarian rights were violated. They can simply leave. And soon we would see who dominates population-wise.

On a sidenote, I personally have no doubt that after several thousand years of this method, the cultures that don't treat these life issues very carefully will find themselves on the evolutionary loosing side, and very unpleasant places to live as human life becomes something different from natural law.

Nightrunner said...

Its a rearguard action. The thought is that if it cannot stay forbidden, at least it must not be done for profit.

"The bourgeoisie has stripped of its halo every occupation hitherto honoured and looked up to with reverent awe."

Elizabeth A said...

I am not morally opposed to gestational surrogacy in theory, but in practice, I often see ethical issues.

The first problem I have is with a possibility that JOhn David Galt overlooks, a fourth problematic scenario in the surrogacy relationship: The surrogate finds that the pregnancy puts her life, health, ability to engage in other occupations, or some combination of these things, at risk.

Typically, gestational surrogates are women who have a prior history of uncomplicated pregnancies, which is an attempt to assure that the surrogacy will be uncomplicated, but there are no guarantees.

We generally assume that decisions about pregnancy and birth will be made by - or at least with the assistance of - people who are invested in the best interests of the mother. Obviously, this is not always true, but even after acknowledging the imperfections of the existing universe, I find it troubling to bring paying customers into the equation. Is it moral to bring people together to produce children in ways that do not generate altruism between the involved parties? Is it possible to write a satisfactory contract to compel one party to take loving care of another should her life be endangered, even if they lose their money and their progeny as a result?

There is also a fifth scenario, in which the parents decide that they no longer want the child, leaving the surrogate high and dry. Do contracts provide sufficient recourse for surrogates in this situation who may be unable or unwilling to have abortions? Is the existing body of family law capable of dealing with the problem of children abandoned by their parents while still in utero?

Your granddaughter is darling, but she does not constitute a logical argument. If you like, I could drag in an appalling brat (the one who knocked my darling down at soccer practice, perhaps), and use him to argue that no one should ever have babies.

David Friedman said...

Elizabeth raises a number of issues:

"Is it moral to bring people together to produce children in ways that do not generate altruism between the involved parties?"

Why not? We currently bring the parents together with an obstetrician to produce children, and sometimes with other medical professionals needed to make it possible for a couple who are infertile for a curable reason to have children. Should obstetricians be forbidden to charge for their services. Fertility specialists?

"Is it possible to write a satisfactory contract to compel one party to take loving care of another should her life be endangered, even if they lose their money and their progeny as a result?"

It's surely possible to write a contract that permits the host mother to get an abortion if the pregnancy is threatening her life. What more than that is required?

"There is also a fifth scenario, in which the parents decide that they no longer want the child, leaving the surrogate high and dry."

In the one such case I know of (in California, where the child was produced with donated egg and sperm in a rented womb, the couple desiring a child being entirely infertile), the court decision was that the child was the responsibility of the couple who had arranged the transaction in order to have a child, not the host mother.

Why is that any more of a problem with surrogacy than with an ordinary pregnancy? There too, if the parents change their mind, there is a child without willing parents.

William H. Stoddard said...

Every new reproductive technology seems to produce the same cycle of panic. When I was researching a book a few years back I read about the German novel Alraune, which was popular enough to be filmed twice, once silent and once with sound. It focused on a young woman who had been conceived through artificial insemination (with some bizarre side notes: her father was a condemned murderer, her mother was a hired prostitute). Because of her unnatural origins, apparently she had an exotic and irresistable physical allure, had a psychic bond to a mandrake plant, had various strange powers, and was totally amoral. You could change the reproductive method to cloning and it would find an audience in present-day theaters. In a hundred years, when everyone is cool with cloning, some new innovative method of reproduction such as direct chemical synthesis of the genome will probably be stirring the same terrors and the same moral disapproval.

Jehu said...

I'll tell you what I suspect is at the back of a lot of people's minds.

There is a worry, and it isn't an unfounded one given the American character (the space between prohibited and censured if you criticize it is awfully narrow these days).
That worry is that if gestational surrogacy or prostitution for pay is de facto legal, that unemployed women will face the social expectation that they accept such jobs if they are offered to them---that they'll be viewed as lazy if they go for public assistance instead.

Personally, I know a couple who I'd love it if they used a gestational surrogate (the wife can't carry a child for medical reasons although I don't suspect conception would be any particular problem), because I suspect that I'd like their children.

Anonymous said...

I think that part of the issue is that the modern legal system strongly prefers that a person who tries to get out of a contract be made to pay damages, rather than being forced to fulfil the contract terms. This works very badly for gestational surrogacy, and so the impulse is to disallow such contracts.

Daniel A. Nagy said...

There is more to the "compelled by poverty" argument than that. I do not claim that I fully support the argument (I haven't made up my mind yet), but I understand that by making various Jacob & Esau type transactions illegal an incentive to keep people impoverished is removed.

The usual argument on the left is that as long as exploiting poverty for profit is considered both legal and moral, various ways of keeping large numbers of people in poverty, such as excluding them from accessing competitive markets (the legal concept of citizenship being the most popular one) will be exercised. Of course, this argument hinges on the premise (that is obviously debatable) that the reason of poverty (at least in some cases) is that some people are being actively (that is at cost) kept in poverty in order to make certain services available or substantially cheaper. Making these services illegal would remove the incentive to spend on keeping those people impoverished and will thus enable them to earn their way out of poverty.

Anonymous said...

You ignore the argument that it is cruel to the child to remove her from the only life she has known. Newborns know their mothers, recognize their native language, respond to sounds heard in the womb, and are traumatized by postpartum separation.

You may decide that bringing a child into the world is worth suffering that perhaps will have no permanent effect. We don't know anything about the longterm effects of perinatal experiences. However it is extremely telling that advocates for gestational surrogacy are never thinking of the child as a center of consciousness who can experience, suffer, and mourn, at all. I expect that most of the readers of this comment will find the idea that a little baby misses her mother very silly. More fools you.

Anonymous said...

An interesting society is one in which genetic material from the most accomplished people of society is gathered (high IQ, high conscientiousness geniuses), and surrogate mothers are paid not only to bear the resulting children, but to keep them after birth as well.

This way, it's a win-win both for the less genetically lucky who are basically paid to raise a child (much better than all the other low-IQ work out there) and for society as a whole (which will improve over time as the less genetically gifted have less children of their own).

Needless to say, my proposal will not be implemented anytime soon... I suspect that the rest of the draconian anti-surrogacy laws are also kept due to fear of eugenics and the specter of Hitler.

Anonymous said...

Ethics aside, my main issues with surrogace is causing the baby suffering by separation from the mother. Adoptees have issues stemming from the initial trauma of the separation. Babies and mother bond during pregnancy, and creating a baby with the intention of causing this separation is totally cruel.

Luke said...

David said:
"In short, no sex without (openness to) babies; no babies without sex."

So, by your logic, Jesus of Nazareth should not have been born, then. I beg to differ.

(I'm a 50-YO man who has twin daughters due in a couple of weeks conceived from a 23-YO egg donor, carried by a 24-YO gestational surrogate. My wife is near my age, and post-hysterectomy, and knew enough anyway not to use her eggs post-early-30s latest.)

Luke said...

Anyone who hates the idea of gestational surrogacy, etc., should watch the movie "Idiocracy", or at least the first ten minutes of it.

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Anonymous said...

HATE all the misconceptions about surrogacy i am doing traditional surrogacy for a family member, free of charge in fact with vitamins travel and maternity clothes it will in all probability cost me money. I am still happy to do it!! Commercial surrogacy is a also illegal in the UK so all this is pretty much void anyway.

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