Commercial surrogacy and the human right to

autonomy
Ronli Sifris*
Arguments against commercial surrogacy frequently focus on the rights of the
surrogate. For example, those opposed to commercial surrogacy often argue
that surrogacy arrangements amount to the exploitation of women and the
commodification of their wombs. Phrased in the language of rights, such
arguments draw on the right to be free from degrading treatment and the right
to be free from discrimination. In contrast, those who support commercial
surrogacy refute the arguments relating to exploitation and commodification
and cite the right to work and more commonly the right to privacy / autonomy
as the key rights in question. This article focuses on the human right to
autonomy and interrogates whether prohibitions on commercial surrogacy
violate the right of a woman to choose to be a surrogate.

INTRODUCTION
From a human rights perspective, the issue of commercial surrogacy is vexed and complex, giving rise
to passionate arguments relating to the rights of the child conceived through surrogacy, the rights of
the intended parent(s) and the rights of the surrogate.1 Many opponents of commercial surrogacy
fervently argue that the practice violates the rights of the child resulting from the surrogacy
arrangement. For example, John Tobin argues that commercial surrogacy arrangements amount to the
sale of a child, in violation of the United Nations Convention on the Rights of the Child.2 In contrast,
supporters of commercial surrogacy argue that such arrangements do not violate the rights of the child.
For example, Paula Gerber and Katie O’Byrne argue that properly regulated commercial surrogacy
arrangements do not amount to the sale of a child and do not violate the Convention.3
Less commonly expressed is the argument that intended parents have a right to access surrogacy
arrangements, based for example on the right to privacy, the right to found a family and the right to be
free from discrimination enshrined in the International Covenant on Civil and Political Rights,4 as
well as the right to reproductive health and the right to benefit from scientific progress enshrined in the
*
BA/LLB (Hons) (Monash University), LLM (New York University), PhD (Monash University); Lecturer, Monash University
Faculty of Law; Associate, Castan Centre for Human Rights Law. This article, together with the guest editorial and other articles
in this Special Issue, stems from the Monash Law Faculty roundtable discussion that took place in Melbourne in April 2015. The
roundtable discussion was funded by Associate Professor AM Farrell’s Australian Research Council Future Fellowship
Regulating Human Tissue: Principles Institutions and Politics (FT130101768). The support of the ARC is gratefully
acknowledged.
Correspondence to: [email protected].
1
For a discussion of the various human rights perspectives on commercial surrogacy, see Ronli Sifris, Karinne Ludlow and
Adiva Sifris, “Commercial Surrogacy: What Role for Law in Australia?” (2015) 23 JLM 275.
2
Article 35 of the United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577
UNTS 3 (entered into force 2 September 1990) states that: “States Parties shall take all appropriate national, bilateral and
multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.” See
John Tobin, “To Prohibit or Permit: What is the (Human) Rights Reponse to the Practice of International Commercial
Surrogacy?” (2014) 63 Int’l & Comp LQ 317.
3
Paula Gerber and Katie O’Byrne, “Souls in the House of Tomorrow: The Rights of Children Born via Surrogacy” in
Paula Gerber and Katie O’Byrne (eds), Surrogacy, Law and Human Rights (Ashgate, 2015) 81. See also Adiva Sifris’s article in
this Special Issue: Adiva Sifris, “The Family Courts and Parentage of Children Conceived through Overseas Commercial
Surrogacy Arrangements: A Child-centred Approach” (2015) 23 JLM 396.
4
See International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered
into force 23 March 1976) Arts 2, 15, 16, 17, 23, 26.

(2015) 23 JLM 365 365

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International Covenant on Economic, Social and Cultural Rights.5 Others argue that intended parents
may desire to create a child through surrogacy but they have no right to do so.6
The third relevant site for impassioned discourse concerns the rights of the surrogate. Those
opposed to commercial surrogacy frequently argue that surrogacy arrangements amount to the
exploitation of women and the commodification of their wombs.7 Phrased in the language of rights,
such arguments draw on the right to be free from degrading treatment and the right to be free from
discrimination.8 In contrast, those who support commercial surrogacy refute the arguments relating to
exploitation and commodification and cite the right to work and more commonly the right to privacy
/ autonomy as the key rights in question.9 This specific issue, relating to the rights of the surrogate,
forms the focus of this article.
This article begins by providing an overview of the arguments against commercial surrogacy
before turning to an overview of the arguments in favour of commercial surrogacy.10 It then focuses
the discussion on the right to autonomy, considering what is meant by the notion of autonomous
decision-making, analysing the feminist critique of an autonomy-based approach to reproductive rights
and considering the applicability of the right to autonomy in the context of commercial surrogacy.
Ultimately, the article concludes that the right to autonomy enshrined in international human rights
law includes the right to choose to be a surrogate. As a result, regulation which safeguards the rights
and interests of all parties is the appropriate legislative response. In the Australian context, prohibition
only serves to deny the autonomy rights of Australian women and to drive intended parents overseas.11
It should be noted that this article does not delve into the autonomy rights of the surrogate in the
context of conduct during a pregnancy, which is a highly fraught and complicated issue.12

ARGUMENTS AGAINST COMMERCIAL SURROGACY

The key arguments against commercial surrogacy from the perspective of the rights of the surrogate
are that inherent in commercial surrogacy arrangements is the exploitation of the surrogate and that
surrogacy commodifies the surrogate, reducing her to her womb.13 When gestational commercial
surrogacy first became possible, some feminists conflated these arguments, expressing the fear that the
5
See International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3
(entered into force 3 January 1976) Arts 12, 15.
6
See, for example, Liz Bishop and Bebe Loff, “Making Surrogacy Legal Would Violate Children’s Rights”, The Conversation,
21 August 2014 <http://theconversation.com/making-surrogacy-legal-would-violate-childrens-rights-30716>.
7
See, for example, April L Cherry, “The Rise of the Reproductive Brothel in the Global Economy: Some Thoughts on
Reproductive Tourism, Autonomy, and Justice” (2014) 17 U Pa JL & Soc Change 257.
8
The right to be free from degrading treatment is enshrined in: International Covenant on Civil and Political Rights, Art 7;
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10
December 1984, 1465 UNTS 85 (entered into force 26 June 1987) Art 16. The right to be free from gender-based discrimination
is enshrined in numerous treaties, most notably the Convention on the Elimination of All Forms of Discrimination against
Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).
9
See International Covenant on Economic, Social and Cultural Rights, Art 6; International Covenant on Civil and Political
Rights, Art 17.
10
It should be noted that the term “commercial surrogacy” in this article is used to refer to an arrangement where a woman is
compensated for being a surrogate beyond reimbursement of the costs incurred. It should be noted that increasingly the term
“compensated surrogacy” is being used to distinguish between surrogacy as a commercial construct and wholly altruistic
surrogacy. For the purposes of this article, it is not necessary to make the distinction between “commercial surrogacy” and
“compensated surrogacy”.
11
For a discussion of Australian law prohibiting commercial surrogacy and regulating surrogacy in general, see the guest
editorial and other articles in this Special Issue.
12
For example, should a surrogate be prohibited from drinking alcohol or smoking cigarettes while pregnant? If so, where is the
line drawn? Is it for instance permissible for the intended parents to dictate that a surrogate may not go for a jog while pregnant?
It is also relevant to consider the appropriate framework for considering these questions. Is it appropriate to adopt a pure
“freedom of contract” approach or should we take the view that there are some terms / clauses that one cannot agree to?
13
Merryn Elizabeth Ekberg, “Ethical, Legal and Social Issues to Consider When Designing a Surrogacy Law” (2014) 21 JLM
728, 733.

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 Commercial surrogacy and the human right to autonomy

advent of gestational surrogacy would lead to the creation of an underclass of women who would
become society’s “breeders”,14 similar to the dystopian society depicted in Margaret Atwood’s famous
novel The Handmaid’s Tale.15 This extreme reaction demonstrates that often, the argument against
commercial surrogacy is framed in highly emotive language. Sheila Jeffreys, for example, asserts that
surrogates:
suffer not just the exploitation of having their bodies controlled by others – the buyers, agents and
doctors – but then must suffer the psychological effects of having their babies removed. The pain of
poor and often desperate women in other countries who are sometimes repeatedly pimped out to baby
farms by male partners or families for profit is not considered relevant. They are expected to treat their
bodies as factories and their babies as products that are unrelated to their humanness.16
Proponents of the view that commercial surrogacy constitutes exploitation of the surrogate
frequently assert that surrogacy is an option of last resort for financially desperate women and
therefore takes advantage of their desperation.17 In this context, the analogy is often made to sex
work, as many feminists argue that this too amounts to the exploitation of desperate and vulnerable
women.18 This assumption of surrogacy as an option of last resort for desperate women presumes that
no woman would voluntarily choose to relinquish a child that she has carried or accept for another the
health risks inherent in pregnancy and child birth.19 It also links the exploitation argument with the
view that commercial surrogacy constitutes discrimination against women as, according to this
perspective:
surrogacy arrangements exist only because there are women sufficiently economically disempowered to
find becoming a surrogate an attractive way to earn money. Thus according to this argument, it is
gender inequality which “forces” women to resort to supplementing their income through surrogacy.20
In addition to citing gender-based discrimination, those opposed to commercial surrogacy
frequently argue that it also amounts to race-based and class-based discrimination given that intended
parents generally have access to greater resources than women who become surrogates.21 This
argument is particularly poignant in the context of intended parents from developed countries entering
into surrogacy arrangements with women from developing countries,22 although Dorothy Roberts (for
example) expressed these fears in the United States context prior to the growth of commercial
surrogacy in the Global South.23 Further, the small percentage of the overall “surrogacy fee” which is
paid to the surrogate, as compared with other actors in the process such as brokers and clinics, is often

14
See, for example, Gena Corea, The Mother Machine: Reproductive Technologies from Artificial Insemination to Artificial
Wombs (Harper and Row, 1985) 214. This “nightmare vision” has not come to pass: Emily Jackson, Regulating Reproduction:
Law, Technology and Autonomy (Hart Publishing, 2001) 293.
15
Margaret Atwood, The Handmaid’s Tale (Houghton Mifflin Co, 1986).
16
Sheila Jeffreys, “Reject Commercial Surrogacy as Another form of Human Trafficking”, The Conversation, 11 August 2014
<http://theconversation.com/reject-commercial-surrogacy-as-another-form-of-human-trafficking-30314>.
17
It may also be argued that surrogacy is exploitative in the Kantian sense that a human being should not be used as a means
to an end but this is not the argument most commonly invoked by those opposed to surrogacy.
18
Sara L Ainsworth, “Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated
Surrogacy in the United States” (2014) 89 Wash L Rev 1077, 1084. Katha Pollit, for example, uses the term “reproductive
prostitution”: Katha Politt, Reasonable Creatures: Essays on Women and Feminism (1995, Vintage Books) 69.
19
Jackson, n 14, 302-303.
20
Jackson, n 14, 299.
21
Ainsworth, n 18, 1082; Jackson, n 14, 298.
22
Ainsworth, n 18, 1088.
23
Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Pantheon Books, 1997) 150-201.

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Sifris

invoked to bolster the argument that commercial surrogacy is a form of exploitation.24 So too is the
extent to which some surrogacy contracts control the conduct of the surrogate while pregnant.25
The argument that surrogacy represents the commodification of women as it reduces them to their
reproductive capacity is the second primary basis on which feminist opponents of surrogacy argue that
it violates the rights of the surrogate. It is argued that such commodification is harmful as it results in
a dollar value being placed on women’s bodies, in effect treating them as objects to be bought. For
example, Rosalind Pollack Petchesky has expressed the view that “when a woman enters into a
surrogacy contract, she transforms her uterus into an ‘empty vessel’ and alienates ‘the unique
physiological, emotional and creative capacity of her body, that is to say, of herself as a woman’”.26 In
the language of human rights, this argument may translate into an argument that commercial surrogacy
is inherently degrading to the surrogate as it reduces her to the function of her uterus rather than
treating her as an entire human being.27

ARGUMENTS IN FAVOUR OF COMMERCIAL SURROGACY

Many of the arguments supporting commercial surrogacy amount to a refutation of the arguments that
commercial surrogacy constitutes exploitation and commodification of the surrogate. As discussed
above, those opposed to commercial surrogacy frequently argue that paying a woman to be a surrogate
amounts to taking advantage of a woman who is desperate for money. This argument assumes that a
woman would not become a surrogate but for the money that she is paid to do so. Yet, at least in the
context of developed countries, the empirical evidence indicates that money is generally not the only
motive for surrogates to perform this role.28 Secondly, this argument assumes that it is the payment of
money which constitutes the exploitation; this argument reeks of irony as, in this author’s view, a
claim of exploitation is more clearly apparent where there is a failure to compensate women for
providing such a service.29 After all, fertility clinics in Australia charge thousands of dollars for people
to access their fertility services, such as artificial insemination and in vitro fertilisation. As such, to
prevent individual women from charging for the service of being a surrogate, when “big business”
may charge large fees for other assisted reproductive services, and to claim that this is for the
women’s own benefit, seems to be the height of hypocrisy and paternalism.30 As Julie Shapiro notes,
the failure to compensate women perpetuates the patriarchal tradition of failing to pay for “women’s
work”.31 In addition, where commercial surrogacy is prohibited but altruistic surrogacy is permitted
(as is the case in Australia), this may lead to circumstances in which relatives or friends are pressured
to become surrogates due to a lack of other options. For example, in the words of one Australian
fertility specialist:

24
Ainsworth, n 18, 1088. For example, the average cost of surrogacy in the United States is $150,000 with approximately 20%
of this cost being paid to the surrogate and the average cost of surrogacy in India is $50,000 with approximately 10% of this cost
being paid to the surrogate. See Jenni Millbank, “The New Surrogacy Parentage Laws in Australia: Cautious Regulation or ‘25
Brick Walls’?” (2011) 35 MULR 193. It should be noted that this 10% is still significant by relative standards given the differing
average income and cost of living in each country. Accordingly, the lower percentage paid to Indian surrogates represents more
than a year of average earnings whereas the higher percentage paid to surrogates in the United States does not. See
Jenni Millbank, “Rethinking ‘Commercial’ Surrogacy in Australia” (2015) 12 J Bioeth Inq 477 (Millbank (2015)).
25
Ainsworth, n 18, 1090.
26
Rosalind Pollack Petchesky, “The Body as Property” in Faye D Ginsburg and Rayna Rapp (eds), Conceiving the New World
Order: The Global Politics of Reproduction (University of California Press, 1995) 387, 395.
27
The right to be free from degrading treatment is enshrined in: International Covenant on Civil and Political Rights, Art 7;
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art 16.
28
See “Autonomy and commercial surrogacy” below for a discussion of the empirical evidence.
29
Ekberg, n 13, 734.
30
For a discussion of the disconnect between the fees charged by private fertility companies in Australia and the insistence on
altruistic surrogacy, see Millbank (2015), n 24.
31
Julie Shapiro, “Paying for Parenthood? Compensation of Surrogate Mothers and the Legal Assignment of Parental Rights”
(Paper delivered at the Law and Society Association Annual Meeting, Seattle, 29 May 2015).

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 Commercial surrogacy and the human right to autonomy

Everyone gets their knickers so much in a twist about commercial surrogacy, but … I believe that
money is perhaps one of the healthiest motivators you can have for doing most things. One of the things
that we are starting to see is some really unpleasant pressure being put on close friends and relatives to
act as surrogates because commercial surrogacy is banned.32
Another argument in support of commercial surrogacy is that women’s right to work encapsulates
their right to provide this reproductive service for a fee and that this should not be viewed as
problematic simply because pregnancy and childbirth involve some risks to a woman’s health.33 After
all, there are other jobs (such as being a firefighter or a police officer) which are inherently dangerous
but which do not elicit the same negative response as commercial surrogacy (and may not pay as
much money).34 On this point, Jenni Millbank queries: “Why is the ethical debate so often focused on
whether surrogates are paid too much and so rarely on whether they are paid too little? Women who
undertake pregnancies for others in surrogacy arrangements are performing labour (in both senses) and
they are undertaking significant risks.”35 Thus Millbank argues that surrogacy may be viewed as
reproductive labour with appropriate remuneration attached to the provision of this service.36
An additional rights-based argument in support of commercial surrogacy is the pragmatic view
that where commercial surrogacy is prohibited, the practice is driven underground (or interstate /
overseas as the case may be) and that it is in these circumstances that the rights of the surrogate are
most likely to be violated. In contrast, where commercial surrogacy is regulated, legislation can
endeavour to protect the rights of all parties. Accordingly, writing in the context of Washington State
where commercial surrogacy is prohibited, Sara Ainsworth comments that:
whatever the feminist debate over surrogacy, the practice is currently happening and its unregulated
state is what is harmful right now. And additional potential harm will be borne by those with the least
economic resources and the least power – including women in other countries, where legal protections
for women acting as surrogates may be insufficient to ensure their health, dignity and safety.37
Thus in arguing for the regulation (as opposed to prohibition) of commercial surrogacy,
Ainsworth articulates the reality that not only does prohibition increase the risk of exploitation but that
it is those women who are society’s most vulnerable that are the most likely to be subjected to
infringements of their basic human rights.38
Finally, perhaps the most persuasive argument in support of commercial surrogacy as regards the
human rights of the surrogate concerns a woman’s right to privacy / autonomy, which includes her
right to make choices regarding her own life and body.39 Pursuant to this argument, if a woman is
making a free and fully informed decision to be a surrogate, then to prevent her from doing so is in
fact to impinge on her right to autonomy. This article now proceeds to delve into the meaning of
autonomy and its application in the context of commercial surrogacy.

32
Denise Rice, “Surrogacy a Legal Maze”, The Sunday Times (Perth), 17 June 2007, 68. For a further critique of the insistence
on categorising surrogacy as either “commercial” or “altruistic”, see Anita Stuhmcke’s article in this Special Issue:
Anita Stuhmcke, “The Regulation of Commercial Surrogacy: The Wrong Answers to the Wrong Questions” (2015) 23 JLM 333.
33
The right to work is enshrined in International Covenant on Economic, Social and Cultural Rights, Art 6.
34
Jackson, n 14, 302.
35
Millbank (2015), n 24.
36
Millbank (2015), n 24. As an alternative model, Millbank explores the possibility of payment as compensation for the financial
and non-financial costs of being a surrogate.
37
Ainsworth, n 18, 1107.
38
Ainsworth, n 18, 1107. The targeting of marginalised or vulnerable women for restrictions on aspects of their reproductive
freedom may be seen in other contexts as well, such as involuntary sterilisation. See, for example, Ronli Sifris, “Involuntary
Sterilization of HIV-Positive Women: An Example of Intersectional Discrimination” (2015) 37 HRQ 464.
39
The right to privacy / autonomy is enshrined in the International Covenant on Civil and Political Rights, Art 17.

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THE RIGHT TO AUTONOMY

The meaning of “autonomy”

The concept of autonomy, specifically patient autonomy, is today at the heart of human rights
approaches to health care (including reproductive health care).40 Yet what is meant by the term
“autonomy” or “autonomous decision-making” is highly contested.41 That said, “at its most basic, the
liberal concept of autonomy has its roots in the idea that, provided others are not harmed, each
individual should be entitled to follow their own life plan in the light of their beliefs and
convictions”.42 It is generally asserted that there are two prerequisites for autonomy: authenticity
conditions and competency conditions.43 Authenticity conditions require that a decision can truly be
said to belong to the individual, that it can be said to be voluntary and free of coercion. Competency
conditions require that the decision-maker has the capacity to make the decision based on an
understanding of the possible consequences. For example, the law often views minors, people who are
intoxicated or suffer from a severe intellectual disability as lacking the capacity for autonomous
decision-making. The importance placed on this notion that an autonomous decision requires a
decision-maker who understands the nature of the decision and the relevant factors surrounding the
decision is reflected in the medico-legal doctrine of informed consent.44 In the context of
reproduction, the right to autonomy is often equated with the right to bodily integrity: a woman’s right
to decide what will be done with and to her own body.45
The feminist critique of autonomy
Feminist criticism of the emphasis on the right to autonomy is widespread, particularly in the context
of reproduction.46 One basis for this criticism is that autonomy is rooted in liberalism, as it is loosely
grounded on the notion that the state should refrain from interfering in the decisions of its citizens.47
Yet notions of reproductive justice specifically require state interference, for example in the form of
state clinics which provide affordable abortion services.48 Another basis for this criticism is that a
focus on autonomy constitutes a focus on the individual, without consideration of the social context in
which that individual is making her decisions.49 For example, in the United States framework, Ruth
Bader Ginsburg and Reva Siegel have argued that restrictions on abortion violate both the right to
autonomy and the right to equality; they have criticised the much discussed Supreme Court decision of
Roe v Wade50 on the ground that it focused on the right to autonomy to the exclusion of the right to
equality, despite the fact that the right to have an abortion is a prerequisite to women’s capacity to
participate as equals in society.51
40
Thérèse Murphy, Health and Human Rights (Hart Publishing, 2013) 53.
41
Erin Nelson, Law, Policy and Reproductive Autonomy (Hart Publishing, 2013) 12.
42
Jackson, n 14, 2. Autonomy may also be defined as “the prerogative of the individual to live her own life, in accordance with
her own values and desires: to live by her own lights”: see Nelson, n 41, 12.
43
Nelson, n 41, 13.
44
Nelson, n 41, 15-16. For criticism of the view that autonomy may be equated with informed consent, see Susan Dodds,
“Choice and Control in Feminist Bioethics” in Catriona Mackenzie and Natalie Stoljar (eds), Relational Autonomy: Feminist
Perspective on Autonomy, Agency and the Social Self (Oxford University Press, 2000) 213.
45
Nelson, n 41, 62.
46
For a more in-depth discussion of the feminist critique of autonomy, see Nelson, n 41, 21-31.
47
Nelson, n 41, 15-16.
48
For a discussion of the concept of reproductive justice, see Nancy Ehrenreich, “Introduction” in Nancy Ehrenreich (ed), The
Reproductive Rights Reader (New York University Press, 2008) 1, 11, 12, 14.
49
Jackson, n 14, 2.
50
Roe v Wade 410 US 113 (1973).
51
Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v Wade” (1985) 63 NC L Rev 375;
Reva Siegel, “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection”
(1992) 44 Stan L Rev 261.

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 Commercial surrogacy and the human right to autonomy

Yet a support for autonomy and an insistence that women have a right to autonomy need not be
made at the expense of other rights or at the expense of acknowledging the social context of women’s
lives.52 For instance, it is possible to insist that the state refrain from interfering with women’s
reproductive decisions and at the same time act to ensure that those decisions are made within a
framework of reproductive justice. For example, insisting on state-funded parental leave may mean
that a woman chooses to continue with a pregnancy that she would otherwise terminate. She should
still have the right to terminate if she so chooses, this is a question of autonomy, but the state should
act to remedy the factors which lead vulnerable women to terminate pregnancies that they would in
fact prefer to continue. Similarly, it is possible to insist that the state refrain from interfering with
women’s reproductive decisions and at the same time act to remedy the conditions of inequality which
may influence these decisions. For example, insisting on adequate state-funded child care may mean
that a woman chooses to continue with a pregnancy that she would otherwise terminate. As with the
above example, the principle of autonomy dictates that she should have the right to terminate her
pregnancy but the principle of equality may dictate that the state should act to “level the playing field”
in which the decision is made.53
Many feminists and bioethicists are working to redefine autonomy to take account of the reality
that women are both individually and socially situated at the same time.54 Thus the notion of
“relational autonomy” has begun to gain traction. In the words of Catriona Mackenzie and Natalie
Stoljar:
The term “relational autonomy”, as we understand it, does not refer to a single unified conception of
autonomy but is rather an umbrella term, designating a range of related perspectives. These perspectives
are premised on a shared conviction, the conviction that persons are socially embedded and that agents’
identities are formed within the context of social relationships and shaped by a complex of intersection
social determinants, such as race, class, gender, and ethnicity. Thus the focus of relational approaches is
to analyse the implications of the intersubjective and social dimensions of selfhood and identity for
conceptions of individual autonomy and moral and political agency.55
Accordingly, as the name suggests, relational autonomy adopts a perspective on autonomy which
views individual, group and institutional relationships as integral to a person’s decision-making
process.
However, in addition to gaining some support among feminists,56 the concept of “relational
autonomy” has also been criticised. Erin Nelson, for example, offers the following criticism:
First, and most obviously, relational autonomy and autonomy are not irreconcilable. There is no reason
why autonomy (as it has generally been conceived) cannot take context – including relationships – into
account. It is perhaps the case that traditional accounts of autonomy seem not to do so, or do not do so
very well. But that does not mean that they cannot do so. Secondly, and more importantly, I think that
the “relational autonomy” label is actually unhelpful in furthering our understanding of autonomy.
Because it tends toward the notion that autonomy inheres in relationships rather than persons, it can be
understood to mean that if you are not in the right kinds of relationships – or if you are in the “wrong”
kinds – you cannot be autonomous … Lastly, I think that there is a risk that relational theories of
autonomy could be used to justify paternalistic ideas and arguments about which decisions can
legitimately count as autonomous.57

52
Jackson, n 14, 4.
53
For a discussion of inequalities inherent in the experiences of African-American women in the context of reproduction, see
Roberts, n 23.
54
Nelson, n 41, 23.
55
Catriona Mackenzie and Natalie Stoljar, “Introduction: Autonomy Reconfigured” in Catriona Mackenzie and Natalie Stoljar
(eds), Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self (Oxford University Press, 2000) 4.
56
See, for example, Jennifer Nedelsky, “Reconceiving Autonomy: Sources, Thoughts and Possibilities” (1989) 1 Yale JL &
Feminism 7; Pamela Laufer-Ukeles, “Mothering for Money: Regulating Commercial Intimacy” (2013) 88 Ind LJ 1223, 1250;
Susan Sherwin, “A Relational Approach to Autonomy in Health Care” in Susan Sherwin et al (eds), The Politics of Women’s
Health: Exploring Agency and Autonomy (Temple University Press, 1998).
57
Nelson, n 41, 29 (citations omitted).

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Instead of endorsing the concept of “relational autonomy”, Nelson adopts what she refers to as a
“nuanced and contextualised concept of autonomy” which is not solely focused on the individual but
which takes the social into account.58 Similarly, Emily Jackson argues that “while liberalism’s critics
have tended to invoke a particularly narrow and impoverished conception of autonomy, a broader and
richer understanding of reproductive autonomy may be both descriptively accurate and normatively
desirable”.59 Ultimately, whether one believes in autonomy as well as other principles such as
equality, a redefined version of autonomy such as relational autonomy, or in a richer and more
nuanced conception of the traditional notion of autonomy, it is clear that few feminists are willing to
throw autonomy out with the proverbial bath water.60 Thus this begs the question: how does the right
to autonomy fit within the context of commercial surrogacy?
Autonomy and commercial surrogacy
An approach which prioritises the surrogate’s right to autonomy and bodily integrity would permit
commercial surrogacy based on a woman’s right to decide what to do with her own body. As Jackson
argues, “people who have freely entered into a surrogacy contract should not have their clearly
expressed wishes ignored”.61 Accordingly, it is useful to consider the empirical evidence to determine
the extent to which a decision to become a surrogate does in practice constitute an autonomous
decision.62 A distinction is often made between commercial surrogacy in the Global North versus
commercial surrogacy in the Global South. Therefore, the following discussion is structured along
these lines.
The experiences of surrogates in the Global North
In a ground-breaking article, Karen Busby and Delaney Vun consider nearly 40 empirical research
studies on the characteristics and experiences of women who have been surrogates.63 The vast
majority of these studies concern the experiences of surrogates in the Global North. Accordingly, this
discussion draws on their analysis of the data to conclude that in countries like the United States, the
decision to become a surrogate is generally an autonomous decision, made without coercion or undue
influence, by women who welcome payment but are not desperate for the money.64 Therefore, while
there are undoubtedly exceptions, it seems fair to conclude that in most circumstances a woman’s
decision to be a surrogate is a legitimate exercise of her right to autonomy and bodily integrity. In
light of the economic, social and cultural similarities between Australia and countries like the United
States, it seems reasonable to infer that, should prohibitions on commercial surrogacy in Australia be
removed, the experiences of Australian women would be similar.
So who are the women who become surrogates? Do they share any common characteristics?
Studies consistently demonstrate that most women who agree to become surrogates are Caucasian,
Christian, with children of their own, aged between their late twenties and early thirties.65 They have
varying degrees of education and most are from working-class backgrounds.66 Significantly, in the
58
Nelson, n 41, 30.
59
Jackson, n 14, 2.
60
It should be noted that some feminists claim that autonomous decision-making is not possible in certain contexts. For
example, some feminists assert that consent to infertility treatment is a myth given the stigma of infertility and social pressures
surrounding parenthood. See, for example, Joan C Callahan and Dorothy E Roberts, “A Feminist Social Justice Approach to
Reproduction-assisting Technologies: A Case Study on the Limits of Libertal Theory” (1995-96) 84 Ky LJ 1197, 1227.
61
Jackson, n 14, 1-2.
62
Although this is a case-specific question, it is nevertheless possible to reach a generalised conclusion by looking at the
empirical research while acknowledging that there may be individual cases which do not accord with such a generalisation.
63
All of the empirical studies are peer-reviewed and all but one are published in academic journals or by academic presses:
Karen Busby and Delaney Vun, “Revisiting The Handmaid’s Tail: Feminist Theory Meets Empirical Research on Surrogate
Mothers” (2010) 26 Can J Fam L 13.
64
Busby and Vun, n 63.
65
Busby and Vun, n 63, 42.
66
Busby and Vun, n 63, 43.

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 Commercial surrogacy and the human right to autonomy

studies reviewed by Busby and Vun, financial distress was not an impetus for any of the women to
enter into surrogacy arrangements.67 Further, women who become surrogates tend to score within
normal ranges on standardised psychological tests, tend to be non-conformist independent thinkers and
are more likely to be extroverts.68 In addition, of the studies analysed by Busby and Vun, the idea of
becoming a surrogate was consistently found to have stemmed from the woman herself, with no
evidence of pressure or coercion.69 Accordingly, Busby and Vun conclude that:
The profile of surrogate mothers emerging from the empirical research in the United States and Britain
does not support the stereotype of poor, single, young, ethnic minority women whose family, financial
difficulties, or other circumstances pressure her into a surrogacy arrangement. Nor does it support the
view that surrogate mothers are naively taking on a task unaware of the emotional and physical risks it
might entail. Rather, the empirical research establishes that surrogate mothers are mature, experienced,
stable, self-aware, and extroverted non-conformists who make the initial decision that surrogacy is
something that they want to do.70
So what motivates women to become surrogates? Interestingly, the research indicates that while
surrogates expect to be compensated for the service that they provide, money is rarely the sole reason
for entering into a surrogacy arrangement and is often not even the primary reason.71 As mentioned
above, there is no empirical research which supports the view that women are becoming surrogates
because they are facing financial distress.72 Further, the studies indicate that the desire to help people
to have a child is in fact the primary motive for the majority of women who decide to become
surrogates.73 Other motivating factors include a sense that surrogacy is a “calling”, that it is
empowering, that it is a way of making a unique contribution, or simply a desire to be pregnant again
without raising another child.74
The empirical evidence indicates that surrogates generally have a positive experience of
surrogacy, with many actively involved in the choice of intended parent(s).75 Further, provided they
have access to appropriate advice and support, surrogates are able to set clear boundaries and
expectations regarding conduct during the pregnancy and decisions which may have to be made
throughout the pregnancy.76 In addition, the research indicates that surrogates generally do not think
of the child as their own and therefore do not generally experience difficulties relinquishing the
child.77 Busby and Vun conclude from this that the:
lack of regret and distress expressed by women who choose to be surrogates indicates that they make
their decisions with informed consent, an understanding of what the surrogacy arrangement requires and
a confidence that they can carry through with their initial decision to participate in the surrogacy.78
To sum up, Busby and Vun’s analysis of the existing empirical research indicates that concerns
relating to exploitation and commodification of surrogates is unfounded. The vast majority of
surrogates make an informed, autonomous decision to enter into a surrogacy arrangement and do not
67
Busby and Vun, n 63, 44.
68
Busby and Vun, n 63, 46.
69
Busby and Vun, n 63, 50.
70
Busby and Vun, n 63, 51-52.
71
Busby and Vun, n 63, 53-55. It should be noted that one cannot completely discount the possibility that many surrogates are
in fact financially motivated but express other motivations for becoming a surrogate which they perceive to be more socially
acceptable or to reflect better on them.
72
Busby and Vun, n 63, 55.
73
Busby and Vun, n 63, 55.
74
Busby and Vun, n 63, 57-58.
75
Busby and Vun, n 63, 63.
76
Busby and Vun, n 63, 67.
77
Busby and Vun, n 63, 49, 68, 69.
78
Busby and Vun, n 63, 73.

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regret this decision.79 Therefore, it seems that in the context of the Global North, inherent in
respecting a woman’s rights to autonomy is respect for her right to enter into an arrangement to
become a surrogate.

The experience of surrogates in the Global South

Within the Global South, India is the primary destination for reproductive tourism.80 India’s popularity
in this sphere can be explained partly by the lack of regulation, partly by the cost savings (as
compared with a surrogacy arrangement in the United States) as well as the high quality of available
medical care.81 As a result, the surrogacy industry in India is booming, with an estimated turnover of
more than US$400-500 million per annum.82 Therefore, this discussion focuses on the experience of
Indian surrogates. In contrast to the above discussion relating to the experiences of surrogates in the
Global North, it is submitted that (in light of the economic, social and cultural differences between
Australia and countries like India) it is unlikely that, should prohibitions on commercial surrogacy in
Australia be removed, the experiences of Australian women would be analogous to those of women in
countries like India. Nevertheless, when considering the question of autonomy in the context of
commercial surrogacy generally, it is essential to include a discussion of the experiences of women in
the Global South.
Despite the volume of surrogacy arrangements that have taken place in India, there is a dearth of
empirical research which considers the experiences of Indian surrogates. As such, many of the claims
of exploitation and commodification of Indian surrogates are based largely on speculation and
assumptions. This discussion draws on the work of Amrita Pande, one of the few examples of
empirical research conducted in India which focuses on the experiences of Indian surrogates. Pande
interviewed 42 surrogates as well as doctors and other actors at a clinic in Anand, a city in the Indian
State of Gujarat between 2006 and 2011.83 All of the surrogates were married with children and aged
between 20 and 45.84 Their education ranged from illiterate to high school educated with one
surrogate having a university degree.85 Many of the surrogates reported family incomes below or
around the poverty line and in most cases the money earned through surrogacy was equivalent to
almost five years of family income.86

79
Busby and Vun, n 63, 80-81.
80
It should be noted that the Indian government has recently signalled its intention to ban foreigners from entering into
surrogacy arrangements in India. See, for example, <http://www.smh.com.au/world/india-to-introduce-bill-barring-foreigners-
from-seeking-surrogates- 20151030-gkniqw.html>.
81
Amrita Pande, “Transnational Commercial Surrogacy in India: Gifts for Global Sisters?” (2011) 23 Reprod Biomed Online
618, 619-620.
82
Louise Johnson, Eric Blyth and Karin Hammarberg, “Barriers for Domestic Surrogacy and Challenges of Transnational
Surrogacy in the Context of Australians Undertaking Surrogacy in India” (2014) 22 JLM 136, 145; Laufer-Ukeles, n 56, 1266;
Barbara Stark, “Transnational Surrogacy and International Human Rights Law” (2012) 18 ILSA Journal of International and
Comparative Law 369, 370. It should also be noted that an anonymous online survey of intended or current Australian parents
through surrogacy conducted in 2012 found that India was the country most commonly used for surrogacy arrangements: see
Sam Everingham, “Use of Surrogacy by Australians: Implications for Policy and Law Reform” in Alan Hayes and
Daryl Higgins (eds), Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute
of Family Studies, 2014).
83
Amrita Pande, “Not an ‘Angel’, Not a ‘Whore’: Surrogates as ‘Dirty’ Workers in India” (2009) 16 Indian Journal of Gender
Studies 141, 149 (Pande (2009a)); Amrita Pande, “It May be Her Eggs but It’s My Blood’: Surrogates and Everyday Forms of
Kinship in India” (2009) 32 Qualitative Sociology 379, 382 (Pande (2009b)); Amrita Pande, “This Birth and That: Surrogacy
and Stratified Motherhood in India” (2014) 4 Philosophia 50, 52 (Pande (2014)).
84
Pande (2009a), n 83, 150.
85
Pande (2009a), n 83, 150.
86
Pande (2009a), n 83, 150.

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 Commercial surrogacy and the human right to autonomy

Accordingly, it seems clear that “transnational commercial surrogacy in India is shaped by

profound inequities in power”.87 Yet the power differential may not always be as large as many would
assume. For example, one of the surrogates interviewed by Pande recounts how she rejected a couple
that wanted to enter into a surrogacy arrangement with her. She states:
There was another couple from Delhi that we were introduced to first. But we somehow didn’t like
them. They didn’t seem to have any love for Shalin [Raveena’s infant son]. You need to have love for
children before you decide to come in and look for a surrogate. We took a risk but we said no to them.88
Thus the question may be asked, does the general existence of a power differential necessarily
mean that surrogates are exploited? Or does a focus on the power differential represent a paternalistic
approach which diminishes the respect that should be accorded to the decision of a woman to become
a surrogate? After all, it is clear that Indian surrogates may benefit substantially from the arrangement;
in the words of one surrogate, “[w]e need the money and they need the child” thus from this
perspective the arrangement is mutually beneficial.89 These are some of the complexities inherent in a
consideration of whether commercial surrogacy in India violates the human rights of the surrogate.
The payment to the surrogate of a relatively large amount of money is only the first of a number
of factors that make an analysis of surrogacy in India from the perspective of the rights of the
surrogate highly complex. On the one hand, surrogacy has become a means of survival and a
temporary occupation for some poor rural women.90 More than that, surrogacy enables poor women to
earn an amount of money which can significantly alter the course of their lives. For example,
according to Pushpa, a woman who had entered into her second surrogacy arrangement: “I built one
house with the money I got the first time.”91 Thus in many ways surrogacy has an empowering effect
on the surrogates.92 Further, the women themselves do not view themselves as “mere receptacles”,
they do not feel as though they are reduced to the state of their uterus.93 Rather, they view themselves
as contributing to the identity of the child through “blood and sweat”.94 On the other hand, the offer of
a sum of money “too large to refuse” may be viewed as in fact removing the capacity of these women
to make a real choice.95 After all, as already mentioned, Pande’s research indicates that all of the
surrogates interviewed became surrogates out of financial desperation.96 This raises the quandary of
whether the compensation in fact constitutes “coercive compensation” such that women are being paid
an amount of money which compels them to act against their own best interests.97
As an added layer of complexity to this question of choice, Pande’s research also revealed that, as
a result of the stigma attached to surrogacy in India, many of the surrogates downplayed the element
of choice in their decision to become surrogates claiming that “it was not in my hands, so I cannot be
held responsible, and should not be stigmatised”.98 Such claims make it very difficult to gauge the
extent to which the decision of an individual woman to become a surrogate was or was not an
autonomous decision. Indeed, some may argue that it is not in fact possible to make an autonomous

87
Pande, n 81, 623.
88
Amrita Pande, “‘At Least I am Not Sleeping With Anyone’: Resisting the Stigma of Commercial Surrogacy in India” (2010)
36 Feminist Studies 292, 305.
89
Pande (2009a), n 83, 157. Another example of a similar point is the following comment: “Ironically, Mark and Allan
mortgaged their home to hire a surrogate, while the fee she received enabled her to pay off her own home loan”: see
Katharine Chatfield, “Home Sweet Home”, Sunday Telegraph Magazine, 1 August 2010, 13.
90
Pande, n 88, 293.
91
Amrita Pande, “Commercial Surrogacy in India: Manufacturing the Perfect Mother-Worker” (2010) 35 Signs 969, 988.
92
Pande (2009b), n 83, 386; Pande, n 88, 305.
93
Pande (2009b), n 83, 383; Pande, n 91, 985.
94
Pande (2009b), n 83, 383.
95
See, for example, Laufer-Ukeles, n 56, 1271.
96
Pande (2014), n 83, 53; Pande (2009b), n 83, 391; Pande, n 88, 301; Pande, n 91, 975, 988.
97
Shapiro, n 31.
98
Pande (2009a), n 83, 162. See also Pande, n 88, 301.

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decision to enter into such a stigmatised predicament. Similarly, language which speaks of the
decision to become a surrogate as a decision of the family, for the benefit of the family, renders the
autonomy of the decision questionable.99 At the same time, Ainsworth warns that “it is important to
point out that western feminist critique must recognise its cultural distance when critiquing the
experiences and practices that affect women in India”.100 Given the different emphasis which different
cultures place on the role of the individual within the family, with Western cultures being particularly
focused on the individual and other cultures more focused on the collective good, this may be an
example where it is difficult to impose a Western understanding of the concept of choice (or indeed
informed consent) upon women in India. That said, stories of active coercion of women to be
surrogates by family members are clearly very concerning.101
Another aspect of the surrogacy arrangements discussed in Pande’s work, which may be looked at
from different perspectives, is the fact that the fertility clinic in question provides accommodation for
the surrogates. On the one hand, this may be viewed as an example of excessive surveillance and
control over the movements and choices of these women.102 For example, the women are not allowed
to have sexual relations with their husbands103 and the control relates not only to the women’s conduct
while pregnant but extends to the way in which the women give birth, with a clear preference given to
birth by caesarean section.104 On the other hand, it may be viewed in a positive light in that the
woman are provided with healthy food, medical support, computer classes, English language lessons
and other forms of vocational training.105 The facilities also include a television and a prayer room.106
According to one surrogate: “[t]his doesn’t feel like a hostel at all. This is more like a home. As long
as we are inside the house we can move around freely, watch TV, sleep. We even have a prayer room
where we all pray in the mornings and evenings.”107
What of the surrogacy contract itself? From an autonomy-based perspective, there are a number
of aspects which may be troubling. For example, at the clinic where Pande conducted her research, the
surrogacy contracts are in English, a language few of the surrogates can read, and they are only
informed about the details of the medical process once they agree to become surrogates.108 It should
be noted that the existence of a contract per se is not necessarily detrimental to the surrogate. In fact,
Pande points out that the absence of a contract may be detrimental, as it leaves unclarified important
issues including the surrogate’s remuneration.109 In other words, commercialising the transaction may
actually give the surrogate greater bargaining power.110 The key issue here is the fact that surrogacy is
an unregulated industry in India, thus much depends on the ethical standards of the individual
clinics.111 This is highly concerning given that clinics have a financial incentive to behave unethically,
for example to transfer multiple embryos to increase the likelihood of a pregnancy.
99
Pande, n 88, 303; Pande, n 91, 988; Pande, n 81, 621-622.
100
Ainsworth, n 18, 1087.
101
See, for example, Stephanie Nolan, “Desperate Mothers Fuel India’s ‘Baby Factories’”, The Globe and Mail, 13 February
2009.
102
Pande, n 88, 295.
103
Pande, n 91, 981.
104
Pande (2014), n 83, 55.
105
Pande, n 91, 989.
106
Pande, n 91, 981.
107
Pande, n 91, 983.
108
Pande (2009a), n 83, 147; Pande, n 91, 976.
109
Pande, n 91, 987.
110
Pande, n 91, 987.
111
Louise Johnson, Eric Blyth and Karin Hammarberg point out that while there are guidelines in place, these are not
enforceable and there is evidence of non-compliance. For example, while some clinics respect the wishes of a surrogate to only
have one embryo transferred, others do not offer a choice: see Johnson, Blyth and Hammarberg, n 82, 145.

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 Commercial surrogacy and the human right to autonomy

To sum up, surrogacy in India is highly complex. It is a form of labour which provides the
surrogates with remuneration that amounts to approximately five years total family income.112 This
has the potential to be both empowering and to change the course of their lives. At the same time, the
lack of regulation means that individual clinics are relied upon to determine and maintain ethical
standards, an approach which may result in, for example, difficulties relating to the nature and quality
of the consent being given.113 Pande eloquently articulates the complexity when she states:
in the case of a developing country like India, where surrogacy is fast emerging as a survival strategy,
it makes little analytical sense to battle about the morality of surrogacy. By analyzing surrogacy as a
new form of labor, we can develop some knowledge of the complex realities of women’s experience.
Further, by identifying commercial surrogacy as labor, and by simultaneously recognizing the women as
critical agents, we can deconstruct the image of the victim that is inevitably evoked whenever bodies of
third-world woman are in focus.114
While acknowledging that poverty may influence a woman’s decision to become a surrogate, this
is an argument for addressing poverty and not for denying women their right to choose to be a
surrogate, especially when this decision may have significant beneficial effects on their lives (such as
enabling the building of a house or the attainment of much needed medical treatment). Concerns such
as those relating to coercion or unethical conduct by clinics which may call the nature and quality of
women’s consent into question are serious; but the appropriate response to these challenges is proper
regulation rather than removing this choice from women altogether.
CONCLUSION
This article argues that the right to autonomy enshrined in international human rights law includes the
right to choose to be a surrogate. This right should be protected by the domestic laws of individual
countries which should include appropriate safeguards to ensure that such a decision is a free and fully
informed decision. The empirical research suggests that in the Global North, the decision to become a
surrogate is generally an autonomous decision. In the Global South, the empirical evidence reveals a
more complex landscape. According to Pande’s research in India, for example, surrogacy may be
empowering for the surrogate and may provide her with an otherwise unattainable level of financial
security. At the same time, financial desperation coupled with social and cultural norms that frequently
seem to conflict with notions of true informed consent reveal a highly complex landscape rendering
this issue a legal and ethical minefield. What is clear, however, is that Australia’s current approach
which embraces the prohibition of commercial surrogacy is a paternalistic approach that denies the
autonomy rights of Australian women. Further, it is submitted that (were such prohibitions to be lifted)
economic, social and cultural similarities indicate that the experiences of Australian surrogates would
be more similar to the documented experiences of surrogates in other countries of the Global North
(such as the United States or the United Kingdom) than countries like India. Given the progressive
global increase in commercial surrogacy arrangements, including transnational surrogacy, this is not
an issue that will disappear so long as the ostrich keeps its head in the sand. Accordingly, regulation,
not prohibition, is the appropriate legislative response.

112
For a discussion of surrogacy as a form of labour, see Amrita Pande, n 88, 293; Pande, n 91, 971.
113
For a discussion of different forms of consent in the health care context, see Bernard M Dickens and Rebecca J Cook, “Types
of Consent in Reproductive Health Care” (2015) 128 IJGO 181.
114
Pande, n 91, 972.

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