SURROGATE MOTHERING:EXPLOITATION OR EMPOWERMENT

SURROGATE iMO'T'HERING: EXPLOITATION O R EMPOWERMENT? zyxwv zyx ' 'Pregnancy is barbaric' proclaimed Stiulamith Firestone in the first head). days o f the new cvomen's movement; s h r lookrd 1i)rLvar-d t o the time when technolog)- would free \vorneri from t tir oppression o f biological reproduction. Yet as reproductive options multiply, somr frminists are makirig common (:ause with conservatives h r a ban on innovations. \\'hat is Soing on'? Firestonc argued that naturc oppresses Lvomen b y leaviiig them holding the reproductive bag. while men are frrr of' such burden: so long as this biological inequality holds. women m i l l never he free. ( Firestone, 198-200) It is I I O W commonplace to point out the naivety of tirr claim: i t is not thr biological diffrrcnce. per se. that oppresses women, but its social siyificance. So cvc need riot change bioloqy, onl). attitudes a n d institutions. This insight has helped CIS to see how to achieve a better life for women: but I wonder if i t is the whole story. €Ias €irestone's bravc claim no lesson a t all Li)r us? Her point \ v a s that k i n g bvith child is uricomfi)rtnhlr a n d dangerous, and i t can limit women's lives. L\'e ha1.e become more sensitive t o the ways in which social arrangements can determine how much these difliculties affrct us. Ho\\.evcr. evcn in ftminist utopias. where sex o r gender are considered morally irrclevant except Lvherc they may entail special nerds, a few di1ticultit.s would remain. Infertility, fbr instance. would exist, as would the zyx zyxwvuts zyxwv ' Shulaniith f'irestone. The I)in/eciil (/Sex. (Sic\\,l ' o r k : Baritam H o o k s . 1 9 7 0 ~ . p. 198. .A version of' this paper was xiyen at the Eastern SLVIP nicrtirig.. 26 hlarch 1988. I \\\vuld likc cspccially to thank Hclcn B. liolnit-s and Sara h r i Ketchum for their useful commcnts on this paper; the) arc. of coursc, i r i no way rrsponsible for its perverse position! 'I'hanks also to the editors and refitrers of Rioethics for their helpful criticisms. SURROGATE MOTHERISG zy 19 desire for a child in circumstances where pregnancy is impossible or undesirable. At present, the problem of infertility is generating a whole series of responses and solutions. Among them are high-tech procedures like IVF, and social arrangements like surrogate motherhood. Both these techniques are also provoking a storm of concern and protest. As each raises a distinctive set of issues, they need to be dealt with separately, and I shall here consider only surrogate motherhood. O n e might argue that no feminist paradise would need any practice such as this. As Susan Sherwin argues. it could not countenance ‘the capitalism, racism, sexism, and elitism of our culture [that] have combined to create a set of attitudes which views children as commodities whose value is derived from their possession of parental chromosomes.” Nor will society define women’s fulfilment as only in terms of their relationship to genetically-related children. No longer will children be needed as men’s heirs or women’s livelihood. We will, on the contrary, desire relationships with children for the right reasons: the urge to nurture, teach and be close to them. No longer will we be driven by narcissistic wishes for clones or immortality to seek genetic offspring n o matter what the cost. Indeed, we will have recognized that children are the promise and responsibility of the whole human community. And childrearing practices will reflect these facts, including at least a more diffuse family life that allows children to have significant relationships with others. Perhaps childbearing will be communal. This radically different world is hard to picture realistically, even by those like myself who-I think-most ardently wish for it. T h e doubts I feel are fanned by the visions of so-called ‘cultural feminists’ who glorify traditionally feminine values. Family life can be sufbcating. distorting, even deadly.‘’ Yet there is a special closeness that arises from being a child’s primary caretaker, j u s t as there can be a special thrill in witnessing the unfolding of biologically-drivrn traits in that child. These pleasures justify risking neither the health of the child4 nor that of the mother; ’ zyx zyx zy zyxwvut zy Susan Sherwin, ‘Feminist Ethics and In Vitro Fertilization,’ Science, Motalty and Feminist Theoty, ed. Marsha Hanen and Kai Xielsen, The Canadian journal of Philosophv supplementary volume 13, 1987, p. 277. Consider the many accounts of the devastating things parents have done to children, in particular. See L. h.1. Purdy ‘Genetic Diseases: Can Having Children be Immoral?’ .tloral Problems in Medicine, ed. Samuel Gorovirz. (N.J.: Prentice-Hall, 1983), 3 7 7-84. ‘ zyxwvut LAURA M. PURDY 20 nobody’s general well-being should be sacrificed to them, nor do they warrant hugh social investments. However, they are things that, other things being equal, it would be desirable to preserve so long as people continue to have anything like their current values. If this is so, then evaluating the morality of practices that open up new ways of creating children is worthwhile.“ zyxwvu 510RiZL OR IXI%lORAL? What is surrogate mothering exactly? Physically, its essential features are as follows: a woman is inseminated with the sperm of a man to whom she is not married. When the baby is born she relinquishes her claim to it in favour of another, usually the man from whom the sperm was obtained. As currently practiced, she provides the egg, so her biological input is at least equal to that of the man. ‘Surrogate’ mothering may not therefore be the best term for what she is doing.‘ By doing these things she also acts socially-to take on the burden and risk of pregnancy for another, and to separate sex and reproduction, reproduction and childrearing, and reproduction and marriage. If she takes money for the transaction (apart from payment of medical bills), she may even be considered to he selling a baby. The bare physical facts would not warrant the welter of’ accusation and counter-accusation that surrounds the practice. ’ I t is the social aspects that have engendered the acrimony about exploitation, destruction of the family, and baby-selling. So far we have reached no consensus about the practice’s effect on women or its overall morality. I believe that the appropriate moral framework for addressing. zy zyxwvu zyxw zyx zyx zyxwvutsrq ’ Another critical issue is that no feminist utopia \\,ill havr a supply 01‘ ’problem’ children whom no one wants. T h u s the proposal often heard nowadays that people should just adopt all thosr handicapped. non-white kids will not do. (Nor does it ‘do’ now.) 1 share with Sara Ann Ketchum the sense that this term is riot adcquate. although 1 a m not altogether happy with h r r suggrstion that wr call i t ‘contracted motherhood’ ( S e w Reproductive Technologies and the Definition of Parenthood: A Feminist Perspective‘, paper given at the 1987 Feminism and Legal 7heoCy Confcrcncr, a t the University of Wisconsin at Madison, summer 1987, p. WIT.) It would be better, I think, to reserve terms like ‘mother’ for the social act of nurturing. I shall therefore substitute the terms ‘contracted prrgnancy’ and ‘surrogacy’ (in scare quotes). This is not to say that no one would take the same view as I : the Catholic Church, for instance, objects to the masturbatory act required for surrogacy t o proceed ’ S U R R O G A T E ,MOTHERING 21 questions about the social aspects of contracted pregnancy is consequentialist.8 This framework requires us to attempt to separate those consequences that invariably accompany a given act from those that accompany i t only in particular circumstances. Doing this compels us to consider whether a practice’s necessary features lead to unavoidable overridingly bad consequences. It also demands that we look at how different circumstances are likely to affect the outcome. Thus a practice which is moral in a feminist society may well be immoral in a sexist one. This distinction allows us to tailor morality to different conditions for optimum results without thereby incurring the charge of malignant relativism. Before examining arguments against the practice of contracted pregnancy, let us take note of why people might favour it. First, as noted before, alleviating infertility can create much happiness. Secondly, there are often good reasons to consider transferring burden and risk from one individual to another. Pregnancy may be a serious burden or risk for one woman, whereas it is much less so for another. Some women love being pregnant, others hate it; pregnancy interferes with work for some, not for others; pregnancy also poses much higher levels of risk to health (or even life) for some than for others. Reducing burden and risk is a benefit not only for the woman involved, but also for the resulting child. High-risk pregnancies create, among other things, serious risk of prematurity, one of the major sources of handicap in babies. Furthermore, we could prevent serious genetic diseases by allowing carriers to avoid pregnancy. A third benefit of ‘surrogate mothering’ is that it makes possible the creation of non-traditional families. This can be a significant source of happiness to single women and gay couples. All of the above presuppose that there is some advantage in making possible at least partially genetically-based relationships between parents and offspring. Although, as I have argued above, we might be better off without this desire, I doubt that we will zyxw zy * T h e difficulty in choosing the ‘right’ moral theory to back up judgments in applied ethics, given that none are fully satisfactory continues to be vexing. I would like to reassure those who lose interest at the mere sight of consequentialist-let alone utilitarian-judgment, that there are good reasons for considering justice a n integral part of moral reasoning, as it quite obviously has utility. A different issue is raised by the burgeoning literature on feminist ethics. I strongly suspect that utilitarianism could serve feminists well, if properly applied. (For a defence of this position, see my paper ‘Do Feminists Need a New hloral Theory’, to be given at the University of Minnesota, Duluth, at the conference Exploraiioru in Ferninkt Ethics; T h e q and Practice, &9 October 1988.) zyxwvuts zyxwvutsr zyxwvutsrq 22 zyxwvutsrqpo zyxwvut LAURA M. PURDY zyxwv zy soon be free of it. ‘I’herefore, if we can satisfy i t at little cost, we should trv to d o so. IS SURROGrYI’E; MO’I’HEKING ALWAYS WRONG? Despite the foregoing advantages, some feminists argue that the practice is necessarily wrong: i t is wrong because i t must betray women’s a n d society’s basic interests.9 What, if anything is wrong with the practice? Let us consider the first three acts I described earlier: transferring burden a n d risk, separating sex an d reproduction, a n d separating reproduction and childrearing. Separation of reproduction and marriage will not be dealt with here. Is i t wrong to take on the burden of pregnancy for another? Doing this is certainly supererogatory, for pregnancy can threaten comfort, health, even life. O n e might argue that women should not be allowed to take these risks, but that would be paternalistic. \.Ve d o not forbid mountain-climbing or riding a motorcycle on these grounds. How could we then forbid a woman to undertake this particular risk? Perhaps the central issue is the transfer of burden from one woman to another. However, we frequently d o ju s t that-much more often than we recognize. Anyone who has her house cleaned: her hair done, o r her clothes dry-cleaned is engaging in this procedure;’” so is anyone who depends o n agriculture or public works such as bridges.’’ ‘To the objection that in this case the bargain includes the risk to life an d limb, a s well as use of time and skills, the answer is that the other activities just cited entail surprisingly elevated risk rates from exposure to toxic chemicals o r dangerous machinery.” Furthermore, i t is not even true that contracted pregnancy merely shifts the health burden an d risks associated with pregnancy from one woman to another. I n some cases (infertility, for example,) i t makes the impossible possible; in others (for women with potentially high-risk pregnancies) the net risk is zyxwvu zyxwvuts zyxwvuts See for example Gena Corea, 7 h e hlothcr Machine, and Christine Overall, Ethics and Human Reproduction, (Winchester, M a s s . : Allen and Unwin, 1987). 10 rhese are just a couple of examples in the sort of risky service that we tend to take for granted. : ’ Modern agricultural products arc brought to us at some risk by farm workers. Any large construction project will also result in some morbidity and mortality. I ? Even something so mundane as postal s e n i c e involves serious risk on thr part of workers. I zyxw SURROGATE MOTHERING 23 lowered.13 As we saw, babies benefit, too, from better health and fewer handicaps. Better health and fewer handicaps in both babies and women also means that scarce resources can be made available for other needs, thus benefiting society in general. I do think that there is, in addition, something suspect about all this new emphasis on risk. Awareness of risks inherent in even normal pregnancy constitutes progress: women have always been expected to forge ahead with child bearing oblivious to risk. Furthermore, childbearing has been thought to be something women owed to men or to society at large, regardless of their own feelings about a g i v e n - o r any-pregnancy. When women had little say about these matters, we never heard about risk.14 Why are we hearing about risk only now, now that women finally have some choices, some prospect of r e m ~ n e r a t i o n ? For ’ ~ that matter, why is our attention not drawn to the fact that surrogacy is one of the least risky approaches to non-traditional reproduction?‘6 Perhaps what is wrong about this kind of transfer is that i t necessarily involves exploitation. Such exploitation may take the form of exploitation of women by men and exploitation of the rich by the poor. This possibility deserves serious consideration, and will be dealt with shortly. Is there anything wrong with the proposed separation of sex and reproduction? Historically, this separation-in the form of contraception-has been beneficial to women and to society as a whole. Although there are those who judge the practice immoral. I do not think we need belabour the issue here. It may be argued that not all types of separation are morally on a par. Contraception is permissible, because it spares women’s health, promotes autonomy, strengthens family life, and helps make population growth manageable. But separation of sex and reproduction apart from contraception is quite another kettle of fish: i t exploits women, weakens family life, and may increase population. Are these claims true and relevant? Starting with the last.first, if we face a population problem, it zy zyx zyxwvuts ‘’The benefit to both high-risk women, and to society is clear. Women need zyxwvut zyxwvut not risk serious deterioration of health or abnormally high death rates. See Laura Purdy, ‘The Morality of New Reproductive Technologies’, Thr Journal of Social Philosophv, (Winter 1987), pp. 3 W 8 . For elaboration of this view, consider Jane Ollenburger and John Hamlin, ‘ “All Birthing Should be Paid Labor”-A Marxist Analysis of the Commodification of Motherhood’, On the Problem of Surrogate Parmihood: Analyzing the Baby M Care, ed. Herbert Richardson, (Lewistong, N.Y.: The Edwin Mellen Press, 1987). I6 Compare the physical risk with that of certain contraceptive technologies, and high-tech fertility treatments like IVF. would make sense to rethink overall population policy, not exploit the problrms of the infertile." If family strengthing is a rna,jor justification for contraception, we might point out that contracted pregnancy will in some cases d o the same. CYhettier or not having children can save a failing marriage, i t will certainly prcvent a man who wants children from leaving a woman incapahlc of providing thcm. CVe may bewail his priorities. but if his wife is sul'ficiently eager for thr relationship to continue i t Lvould q a i n he paternalistic for us to forbid 'surrogacy' in such circumstances. T h a t 'surrogacy' reduces rather than promotes women's autonomy may be true under some circumstances, but there are good grounds for thinking that i t can also enhance autonomy. It also remains to be shown that the practice systematically burdens women, or one class of women. In principle, the availability of new choices can be expected to nourish rather than stunt women's lives, s o long as they retain control over their bodies and lives. T h e claim that contracted pregnancy destroys women's individuality and constitutes alienated labour, as Christine Overall argues. depends not only on a problematic Marxist analysis, but on the assumption that other jobs available to women are seriously less alienating. Perhaps what is wrong here is that contracted pregnant)- seenis to he the other side of the coin of prostitutioii. I'rostitution is sex \\,ith o u t rep rod u c t i o n : I s u r rogacv ' is rep rod u c t i o n w i thou t sex. B 11t i t is diflicult to form a persuasive argument that goes beyond mere guilt by association. Strictly speaking. contracted pregnancy is n o t prostitution; a broad-based Marxist definition Mould includc' i t . but also traditional marriage. I think that in the absence of further argument, the force of this accusation is primaril). emotional. Perhaps thc dread feature contracted pregnancy shares kvith prostitution is that i t is a lazy person's u'ay ofexploitiiig their olvn 'natural resources'. Rut I suspect that this idea reveals a touchingly naive view of what i t takes to he a successful prostitute. not to mention the effort involved i n running a n optimum pregnancy. Overall takes up this point b y asserting that i t zyxwvu zyxwvu zyxwv zyx is not and cannot be merely one carec'r choice among others. I t zyxwvu zyxwvutsr zy zyxwvutsr 17 Infertility is often a result of social arrangements. 'I'his ~ ~ ( J C C S ~S ( ~ r i l d therefore be especially unfair to those who already have been exposed to more than their share of toxic chemicals or other harmful conditions. (:hristine Overall. ElhZr~ nnd Muman Reprodurtion. (\Viiichrstrr) hlass.: :\lien eCr Unwin. 1987j, ch. 6. Particularly problematic are her comments about worricri's loss o f individuality. as 1 will be arguing shortly. '' zyx zyxwv SLKROGATE h1C)THEKING 23 is not a real alternative. It is implausible to suppose that fond parents would want i t for their daughters. We are unlikely to set up training courses for surrogate mothers. Schools holding ‘career days’ for their future graduates will surely not invite surrogate mothers to address the class on advantages of ‘vocation’. And surrogate motherhood does not seem to be the kind of thing one would put on one’s curriculum vitae. (P. 126) But this seems to me to be a blatant ad populum argument. Such an objection ought, in any case, to entail general condemnation of apparently effortless ways of life that involved any utilization of our distinctive characteristics. We surely exploit our personal ‘natural resources’ whenever we work. Ditchdiggers use their bodies, professors use their minds. Overall seems particularly to object to some types of ‘work’: contracted pregnancy ‘is no more a real j o b option than selling one’s blood or one’s gametes or one’s bodily organs can be real job options.’ (p. 126) But her discussion makes clear that her denial that such enterprises are ‘real’ jobs is not based on any social arrangements that preclude earning a living wage doing these things, but rather on the moral judgement that they are wrong. They are wrong because they constitute serious ‘personal and bodily alienation’. Yet her arguments for such alienation are weak. She contends that women who work as ‘surrogates’ are deprived of any expression of individuality, (p. 126) are interchangeable, (p. 127) and that they have no choice about whose sperm to harbor. ( p . 128) It is true that, given a reasonable environment (partly provided by the woman herself), bodies create babies without conscious efFort. This fact, it seems to me, has no particular moral significance: many tasks can be accomplished in similar ways yet are not thought v a l u e l e ~ s . ’ ~ It is also usually true that women involved in contracted pregnancy are, in some sense: interchangeable. But the same is true, quite possibly necessarily so, of most jobs. No one who has graded mounds of logic exams or introductory ethics essays could reasonably withhold their assent to this claim, even though college teaching is one of the most autonomous careers available. Even those of us lucky enough to teach upper level courses that involve more expression of individual expertise and choice can be slotted ’‘Llen have been zyxwv zy getting handsome pay for sprrrn donation for years; by comparison with childbearing. such donation is a lark. Yet there has been no outcry about its immorality. :\nother double standard? zyxwv zyx zyxwv into standardized jot) descriptions. linally, i t is jiist false that a about whose sperm shc accepts: this could be guaranteed by proper regulation. I wonder \vhether there is not some subtle de\.aluing of' thc physical by O\~erall.If so. then ~ ' are e falling into the trap set ti! years of elitist equations of women. nature and inferiorit!.. \\'hat I think is really at issue here is the disposition of the fruit o f contracted preqianc).: babies. Howevcr. ir s w m s [ o b e genera11~~ perniissihle to dispose of o r barter \\.hat we produce wit11 t)otli our minds and our bodies-except for that n.hich is created b y our reproducti\.e organs. So the position \ve a r e considcrinq may just be a version o f the claim that i t is \vrong to separatc reproduction and childrearing. \\.hy? I t is true that wwrnen normally expcct t o txconie c:specially attached to the product of this particular kind of labour. and we generally regard such attachment as desirablc. I t seems t ( J be essential [or success full^^ rearing babies the usual w a y . Biit it' they are to be rcared hy others Lvho are able t o form the appropriate attachment, then \chat is u r o n g if a surroqatr mother lails to form i t 3 It seems t o me that the central qucstiori here is \vhethrr this 'maternal instinct' really esists. and. if i t does. M.hether suppressing i t is alwa).s harmfill. Underlying these questions is the assumption that bonditig \\.ith babies is 'natural' and therefbre 'good'. Perhaps so: t h y cvolutionar!. advantage of' such a tendency w.ould t)c clear. I t \ \ ~ o i i l d be simpleminded. however, to assume that our habits arc biologicall!. determined: our culture is permrated with pronatalist bias.'" 'Satural' or not, whether a tendenc!. to such attachment i h desirablc could reasonabl!- he _iudgcd t o depend on circumstance. \\.hen infint mortality is high'' or responsibility ['or childrearinq is shared by the community. i t could d o more harm than qood. Bcivare the naturalistic faIIac!.!" But surely there is something special about gestating a t)ab!. -1'hat is. after all. the assumption behind the judqement that liar!. Beth LVhitehead, r i o t \\'illiani Stern. had a stronger claim to Bat)!. 11. T h c moral scoreboard s w m s c:lear: they hotti had the sarnct kvoman can have no sa!. zyxw zyxwvu SURROGATE MOTHERING 27 genetic input, but she gestated the baby, and therefore has a better case for social parenthood.‘3 We need to be very careful here. Special rights have a way of being accompanied by special responsibilities: women’s unique gestational relationship with babies may be taken as reason to confine them once more to the nursery. Futhermore, positing special rights entailed directly by biology flirts again with the naturalistic fallacy and undermines our capacity to adapt to changing situations and forge o u r destiny.‘4 Furthermore, we already except many varieties of such separation. We routinely engage in sending children to boarding school, foster parenting, daycare, and so forth; in the appropriate circumstances, these practices are clearly beneficial. Hence, any blanket condemnation of separating reproduction and childrearing will not wash; additional argument is needed for particular classes of cases. John Robertson points out that for the arguments against separating reproduction and childrearing used against contracted pregnancy are equally valid-but unused-with respect to adoption.“ Others, such as Herbert Krimmel, reject this view by arguing that there is a big moral difTerence between giving away a n already existing baby and deliberately creating one to give away. This remains to be shown, I think. I t is also argued that as adoption outcomes are rather negative, we should be wary of extending any practice that shares its essential features. In fact, there seems to be amazingly little hard information about adoption outcomes. I wonder if the idea that they are bad results from media reports of offspring seeking their biological forbears. zyxw zy 23 One of the interesting things about the practice of contracted pregnany is that it can be argued to both strengthen and weaken the social recognition of biological relationships. On the one hand, the pregnant woman’s biological relationship is judged irrelevant beyond a certain point; on the other, the reason for not valuing it is to enhance that of the sperm donor. This might be interpreted as yet another case where men’s interests are allowed to overrule women’s. But it might also be interpreted as a salutory step toward awareness that biological ties can and sometimes should be subordinated to social ones. Deciding which interpretation is correct will depend on the facts of particular cases, and the arguments taken to justify the practice in the first place. ‘I’ Science fiction, most notably .John Wyndham’s The Midwich Cukoos, provides us with thought-provoking material. 25 John Robertson, ‘Surrogate Mothers: Not so Novel After All’, Hastings Cmtcr Report, vol. 13, no. 5 (October 1983). This article is reprinted in Biocthics, ed. Rem B. Edwards and Glen C . Graber, (San Diego, California: Harcourt, Brace Jovanovich, 1988). Krimmel’s article (‘The Case Against Surrogate Parenting’) was also orginally published in the Hastings Center Report and is rcprinted in Biocfhics. References here are to the latter. zyx zyxw zyxw ‘l’here is, in any case, reason to think that there a r e difrerences between the t \ \ u practices such that the latter is likely t o hr more successful than the former.‘6 Notic of the social descriptions of surrogacy thus seem t b clearl) justify the outcry against the practice. I suspect that thc remaining central issue is the crucial one: surrogacy is hat))selling and participating in this practice exploits and taints zyxwvutsrqp zyxwv zyxwv \\'omen. I S S U RROGiICY B:\BY-S ki LL 1SGT I n the foregoing. I deliberately left vague thr question o f payment i n contracted pregnancy. I t is clear that thew is a recognizable form of the practice that does not includr payment; howevrr, i t also seems clear that contro\,ersy is focusing on the commercial form. T h e charge is that i t is baby-selling and that this is lvrong. Is paid ‘surrogacy’ baby-selling? Proponents deny that i t is. arg ui ng that \vomrn are mere1y m a ki rig a i d able t liei r biological seniccs. Opponents retort that as women are paid littlr o r nothing if they fail to hand over a live, hralthy child, they arc. indeed selling a baby. If they are merely selling their services thry w ) u l d get full pay, e\.en if the child \\‘ere h r n dead. I t is true women who agree to contracts relieving clients ol responsibility in this cast are heing exploited. ‘I’hey, after a l l . ha\.e donr their part. riskrd their risks, a n d should be paid-just like the physicians involved. Normal childbearing providrs no guarantrr of a live. healthy child-bvhy should contracted pregnancy? There are further reasons for believing that \\.omen are srlling their services. not babies. Firstly, we do not consider children property. Therefore, as Lve cannot sell what we d o not O\VII.wc cannot bc selling babies. LVhat creates confusion here is tliat wt: d o think we own sperm and ova. (Otherwise. how could man sell their sperm?) Yet we d o not own what they hecome, persons. . 4 t ’‘’ zyxwv zyxw ( ) n c major dillrrrricr hetwrcn adoption arid c:ontrac.trd prcqiiaric> i:, th:it is handed o v c r virtually at hirth. thus cnsurinq that the t i d i i r n i l sometimes experienced by older adopters is not esprrienced. .Although ctiildrrn 01. contracted pregnancy might well be curious t o know about tticir biolosical mother. I do not see this as a serious ohstaclc to t h r practice. since we could chanqr o u r policy ahout this. T h e w is also rrason to helievc that carrlull!screrncd womrn undertaking a proprrl! -regulated contracted prcgriancy are Irss likely to experience lingering pain o f separation. First. they ha\.r dclit)cratrl! chosrn to go through pregnancy, knowing that they will qive the hahy up. T h r resulting sense o f control is probably critical to hoth thpir short- and lonq-tc’rrn well-t)ring. Second, thrir pregnancy is not t h r rrsult o f t r a u n i a . Srr also .\lonic;i 13. Xlorris. ‘Keproductivr Trchnology arid Kcstrairits‘. T m n s n r f i o t ~ ~ ~ O C ‘ I ~ ~ ~ ’ . SIarch/,\pril 1988. pp. 1W22, especially p . 18. ttir hat)! SURROGATE hlOTHERING 29 what point, then, does the relationship cease to be describable as ‘ownership’? Resolution of this question is not necessary to the curreilc discussion. If we can own babies, there seems to be nothing problematic about selling them. If ownership ceases at some time before birth (and could thus be argued to be unconnected with personhood), then i t is not selling of babies that is going on. Although this response deals with the letter of the objection about babyselling, it fails to heed its spirit, which is that we are trafficking in persons, and that such trafficking is wrong. Even if we are not ‘selling’, something nasty is happening. T h e most common analogy, with slavery, is weak. Slavery is wrong according to any decent moral theory: the institution allows people to be treated badly. Their desires and interests, whose satisfaction is held to be essential for a good life, are held in contempt. Particularly egregious is the callous disregard of emotional ties to family and self-determination generally. But the institution of surrogate mothering deprives babies of neither.27 In short, as Robertson contends, ‘the purchasers do not buy the right to treat the child . . . as a commodity or property. Child abuse and neglect laws still apply.’ (p. 655) If ‘selling babies’ is not the right description of what is occurring. then how are we to explain what happens when the birth mother hands the child over to others? O n e plausible suggestion is that she is giving up her parental right to have a relationship with the child.‘* That i t is wrong to do this for pay remains to be shown. Although it would be egoistic and immoral to ‘sell’ an ongoing, friendly relationship, (do-ing so would raise questions about whether i t was friendship at all), the immorality of selling a relationship with an organism your body has created but with which you do not yet have a unique social bond, is a great deal less clear.” zyxwvu ’’ zyx zyxw There may be a problem for the woman who gives birth, as the Baby .Ll case has demonstrated. There is probably a case for a waiting period after t h r hiyth during which the woman can change her mind. ” Heidi Malm suggested this position in her comment on Sara Ann Ketchurn’s paper ‘Selling Babies and Selling Bodies: Surrogate Motherhood and the Problem of Commodification’, at the Eastern Division APA meetings, 30 December 1987. ” Mary Anne Warren suggests, alternatively, that this objection could be obviated by women and children retaining some rights and responsibilities toward each other in contracted pregnancy. Maintaining a relationship of sorts might also, she suggests, help forestall and alleviate whatever negative feelings children might have about such transfers. I agree that such openness is probably a good idea in any case. (Referee’s comment.) People seem to feel much less strongly about the wrongness of such acts when motivated by altruism; refusing compensation is the only acceptable proof of such altruism. T h e act is, in any case. socially valuable. Why then must i t be motivated by altruistic considerations? We d o not frown upon those who provide other socially valuable services even when they d o not have the ‘right’ motive. Nor d o we require them to be unpaid. For instance, no one expects physicians, no matter what their motivation, to work for beans. They provide an important service; their motivation is important only to the extent that it affects quality. I n general, workers are required to have appropriate skills, not particular motivation^.^" Once again, i t seems that there is a difyerent standard for women an d for men. O n e worry is that women cannot be involved in contracted pregnancy without harming themselves, as i t is difficult to let go of a child without lingering concern. So far, despite the heavilypublicized Baby M case, this appears not to be necessarily true.“’ Another worry is that the practice will harm children. Children’s welfare is, of course, important. Children deserve the same consideration as other persons, a n d no society that fails t o meet their basic needs is morally satisfactory. Yet I a m suspicious o f the objections raised on their behalf in these discussions: recourse to children’s alleged well-being is once again being used as a trump card against women’s autonomy. First, we hear only about possible risks, never possible benefits: which, a s I have been arguing, could be substantial.32 Second, the main objection raised is the worry about how children will take the knowledge that their genetic mother conceived on behalf of another. FVe d o not know how children will feel about having had such ‘surrogate’ mothers. But as i t is not a completely new phenomenon we might start our inquiry about this topic with historical evidence, not pessimistic speculation. I n any case. if the practice is dealt with in an honest a n d commonseiisc way, particularly if it becomes quite common (and therefore ‘normal’), there is likely to be no problem. We a re also hearing about the worries of’ existing children of women who are involved in thr zyxwv zy zyxwv zyxwv zyx ’I’ Perhaps lurking behind the objections of surrogacy is some feeling that i t is wrong to earn money bv lettinq your body work, without active effort on y o u r part. But this would rule out sperm selling, as well as using womrn’s beauty 10 sell products and sewices. ” See, for example, J a m e s Rachels? ‘A Report lion1 America: T h c Baby hl Case’, Biucfhics, vol. 1, n. 4 (October 1987), p. 365. H e reports that thrre havr been over six hundred succesful cases; see also the above note on adoption. 32 ‘Among them the above mentioned one of being born hcalthirr. SURROGATE MOTHERING 31 practice: there are reports that they fear their mother will give them away, too. But surely we can make clear to children the kinds of distinctions that distinguish the practice from slavery or baby-selling in the first place. Although we must try to forsee what might harm children, I cannot help but wonder about the double standards implied by this speculation. The first double standard occurs when those who oppose surrogacy (and reproductive technologies generally) also oppose attempts to reduce the number of handicapped babies born.33 In the latter context, it is argued that despite their problems handicapped persons are often glad to be alive. Hence it would be paternalistic to attempt to prevent their birth. Why then d o we not hear the same argument here? Instead, the possible disturbance of children born of surrogacy is taken as a reason to prevent their birth. Yet this potential problem is both more remote and most likely involves less suffering than such ailments as spina bifida, Huntington’s Disease or cystic fibrosis, which some do not take to be reasons to refrain from ~hildbearing.~~ Considering the sorts of reasons why parents have children, it is hard to see why the idea that one was conceived in order to provide a desperately-wanted child to another is thought to be problematic. One might well prefer that to the idea that one was an ‘accident’, adopted, born because contraception or abortion were not available, conceived to cement a failing marriage, to continue a family line, to qualify for welfare aid, to sex-balance a family, or as an experiment in childrearing. Surely what matters for a child’s well-being in the end is whether it is being raised in a loving, intelligent environment. The second double standard involves a disparity between the interests of women and children. Arguing that surrogacy is wrong because it may upset children suggests a disturbing conception of the moral order. Women should receive consideration at least equal to that accorded children. Conflicts of interest between the two should be resolved according to the same rules we use for any other moral subjects. Those rules should never prescribe sacrificing one individual’s basic interest at the mere hint of harm to another. zy zyxwv 33 To avoid the difficulties about abortion added by the assumption that we are talking about existing foetuses, let us consider here only the issue of whether certain couples should risk pregnancy. 34 There is an interesting link here between these two aspects of reproduction, as the promise of healthier children is, I think, one of the strongest arguments for contracted pregnancy. zyxw zyxwvuts zyx zyx zyxwvutsr I n sum, there seems to be no reason t o think that there is anything necessarily wrong with ‘surrogate mothering’, even the paid variety. Furthermore, some objections to i t depend on values and assumptions that have been the chief building blocks of women’s inequality. Why are some feminists asserting them? Is i t because ’surrogacy’ as currently practiced often exploits women? IS ‘Sc! RKOG.ATE MOTH ERI N C ’ W R O N G I N C E RT.4 I S S I TL‘A T I 0N S? Even if ’surrogate mothering‘ is not necessarily immoral, circumstances can render i t so. For instance, i t is obviously wrong to coerce women to engage in the practice. Also, certain conditions are unacceptable. Among them are clauses in a contract that subordinate a woman’s reasonable desires and .judgements to the will of another contracting party,’’ clauses legitimating inadequate pay for the risks and discomforts involved, and clauses that penalize her for the birth of a handicapped or dead baby through no fault of her own. Such contracts are now common.j6 O n e popular solution to the problem of such immoral contracts is a law forbidding all surrogacy agreements; their terms would then be unenforceable. But I believe that women will continue to engage in surrogate mothering, even if i t is unregulated, and this approach leaves them vulnerable to those who change their mind, or will not pay. Fair and reasonable regulations are essential to prevent exploitation of women. Although surrogate mothering may seem risky and uncomfortable to middle-class persons safely ensconced in healthy, interesting, relatively well-paid jobs, with adequate regulation i t becomes an attractive option for some women. T h a t these women are more likely than not to be poor is no reason to prohibit the activity. :IS I suggested earlier, poor women now face substantial risks in the workplace. Even a superficial survey of hazards in occupations availablc to poor women would give pause t o those who would prohibit surrogacy on the grounds of risk.’3i Particularly shocking is the list of harmful substances arid conditions t o which working women are routinely exposed. For zyxwv zyxw zyxwvutsrqponmlkjihgfed 1 -1 LVhat this may consist 0 1 naturally requires much additional elucidation. See Susan Ince. ‘Inside the Surrogate Industry’, Test-Tube Libmen, rd. Rita :\rditti. Renate Duelli Klein, and Shelley ,\linden. (London: I’andora Press. ’‘ 1984). I‘ See, for example, .Jranne LLigcr Stellman. Ikbmen i Itbrk, Ilbmen‘j Health, ( N e w York: Pantheon 1977). SURROGATE MOTHERING 33 instance, cosmeticians and hairdressers, dry cleaners and dental technicians are all exposed to carcinogens in their daily work. (Stellman, Appendixes 1 and 2) Most low-level jobs also have high rates of exposure to toxic chemicals and dangerous machinery, and women take such jobs in disproportionate numbers. It is therefore unsurprising that poor women sicken and die more often than other members of society.38 This is not an argument in favour of adding yet another dangerous option to those already facing such women. Nor does it follow that the burdens they already bear justify the new ones. On the contrary, it is imperative to clean u p dangerous workplaces. However, it would be utopian to think that this will occur in the near future. We must therefore attempt to improve women’s lot under existing conditions. Under these circumstances i t would be irrational to prohibit surrogacy on the grounds of risk when women would instead have to engage in still riskier pursuits. Overall’s emphatic assertion that contracted pregnancy is not a ‘real choice’ for women is unconvincing. Her major argument, as I suggested earlier, is that it is a n immoral, alienating option. But she also believes that such apparently expanded choices simply mask an underlying contraction of choice. (p. 124) She also fears that by ‘endorsing an uncritical freedom of reproductive choice, we may also be implicitly endorsing all conceivable alternatives that an individual might adopt; we thereby abandon the responsibility for evaluating substantive actions in favour of advocating merely formal freedom of choice.’ (p. 125) Both worries are, as they stand, unpersuasive. As I argued before, there is something troubling here about the new and one-sided emphasis on risk. If nothing else, we need to remember that contracted pregnancy constitutes a low-tech approach to a social problem, one which would slow the impetus toward expensive and dangerous high-tech solutions.39 A desire for children on the part of those who normally could not have them is not likely to disappear anytime soon. We could discount it, as many participants in debate about new reproduc- zy zy zyxwvut zyxwvu zyxwv zyxwvuts 3H See George L. Waldbott, Health Effects OJ Encironmenfal Pollulanfs, (St. Louis: T h e C.V. hlosby C o . , 1973); Nicholas Ashford, Crisis in the I.tbrkplace: Occupational Disease and Injury, (Cambridge: MIT Press, 1976); Cancer and the Worker, T h e New York Academy of Science, 1977); Environmental Problems in Medicine, ed. William D. McKee, (Springfield, Ill.: Charles C. Thomas, 1977). ’” These are the ones most likely to put women in the clutches of the paternalistic medical establishment. Exploitation by commercial operations such as that of Noel Keane could he avoided by tight regulation or prohibition altogether of For-profit enterprises. zy tite technologies do. rlfter all, nobody promised a rose garden to infertile couples, much less to homosexuals or to single women. Nor is i t desirable to propagate the idea that having children is essential for human fulfilment. But appealing to the sacrosancity of traditional marriage or of blood ties to prohibit otherwise acceptable practices t h a t would satisfy people’s desires hardly makes sense, especially when those practices may provide other benefits. N o t only might contracted pregnancy be less risky and more enjoyable than other jobs women are forced to take, but there are other advantages as well. Since being pregnant is not usually a full-time occupation, ‘surrogate mothering’ could buy time for women to significantly improve their lot: students, aspiring writers, arid social activists could make real progress toward their goals. b‘omen have until now done this reproductive labour for free.“’ Paying women to bear children should force us all to recognize this process as the socially useful enterprise that i t is, and children as socially valuable creatures whose upbringing and welfare are critically important. In short, ‘surrogate mothering’ has the potential to empower women and increase their status in society. T h e darker side of the story is that it also has frightening potential for deepening their exploitation. ‘The outcome of the current warfare over control of new reproductive possibilities will determine which of these alternatives comes to pass. zyxw zyxwvu zyxwvu zyxwv zyxwv Department of Philosophy Hamilton College, Clinton, il’.Y zyxwv *’ ‘l‘he implications of this tact remain to be tiill) understood: I suspect that they are detrimental to women a n d children, but that this is a topic for a n o t h t r paprr.