An Exploration of Issues in Surrogate Motherhood

written by: Shawn Monaghan (Critical on Scribd.com)

November 13, 1995
SUMMARY of Contemporary Theorists in the Field
*Christine Overall (anti-surrogacy anti-legislation)
Surrogate motherhood limits the choices of women, is bad for society as a whole reinforcing
inequality. Contracts should be rendered legally unenforceable.
Compares surrogacy to prostitution. Both are negatively socially stigmatized, involve physically
dangerous elements central to the job performance as well as "considerable legal complications",
and both give the woman little control over the means of production which immediately
translates into little control over her power to earn.
According to Overall statistics show that the majority of women who engage in surrogacy are not
highly educated nor well endowed financially (high unemployment). A significant number (35%
of subject test group) of these women have been pregnant before, having given up either the
child to adoption or not carried the child to term at all (voluntary abortion). The statistician who
supplied this information then "surmised" that these women undertook surrogacy to master their
feelings of loss from abortion and adoption.
Women do not have a free choice to become surrogate mothers because of socialization and
inequality. Surrogate motherhood may limit the choices of women by "obscuring" other possible
and likely better "interpretations of their lives". Overall likens the surrogate motherhood lifestyle
choice to that of the housewife lifestyle choice of the past, as being the only possible "escape
route" for poor women. Furthermore, Overall contends, in allowing the surrogate motherhood
choice for women we may be abandoning "substantive" freedoms for the sake of "formal
freedom" -- surrogate motherhood is not a real 'choice' as women who choose this profession
merely opt for the lesser of two evils.
Not only do women not freely choose surrogacy (economic-social disparity) but it is not a viable
social choice. Parents would not be happy seeing their daughter as a future surrogate career
woman. Surrogacy is on par with blood or organ donation it is not a career choice as she is
merely an incubator not a person performing a job to the best of her unique capabilities -- she is
hiring out her reproductive capacity just as a blood donor is selling her blood for its capacity to
sustain life.
Overall uses a discussion of Marx's comparison of the architect and the bee to demonstrate that
the surrogate mother is more like a bee than an architect in her reproductive labours. Thus as
surrogate mothers women lose their individuality and become interchangeable. The surrogate
motherhood practice negates women as persons as individuals thus rendering free-choice
nonexistent. She merely leases herself out she does not undertake employment -- surrogate
motherhood is not a job.
Overall prefers the fence-sitting position on surrogate motherhood, that is the government
rendering all surrogacy contracts legally unenforceable, thus the government does not give a
false legitimacy to what Overall sees as a dubious at best exercise of reproductive choice, nor
does the complete proscription lead to underground activity that might take the shape of the
"worst fears" of those who oppose surrogacy.
*Lori Andrews (neutral on surrogacy anti-legislation)
Anti surrogate motherhood arguments such as the ones made by Overall and Sherwin will have a
negative effect on pro-choice and women's rights as well as the entire women's rights movement.
She opposes government intervention into women's lives that would take away free choice and
limit their autonomy, thus I interpret her as sharing Overall's position that the government should
not legislate the surrogacy sphere at all.
Andrews argument is quite different from Overall's and Sherwin's in that she argues directly
against each of their arguments on the basis that they detract from the feminist arguments in
almost every other sector of life. For example, Andrews argues that those who say surrogate
motherhood is wrong because of potential risk to women who may not be capable of giving
informed consent (this speaks directly to Sherwin's and Overall's arguments) are asking for the
government to interfere in areas that could readily detract from women's freedoms on many other
issues. If one wishes to cite a lack of informed consent in surrogate motherhood as grounds for
prohibiting the practice (for the woman's own good). This lack of informed consent can be just as
readily translated into prohibiting abortion, for who could possibly make informed consent
without first-hand experience of this unique situation as well.
We must view the choice of a woman to become a surrogate mother as informed otherwise the
results of this argument on women's rights and autonomy will be counter-productive to the entire
women's rights movement. Babies are not sold in surrogacy any more than are they sold in a
caesarean section or an invitro-fertilization, money is given to the surrogate mother or doctor for
services not for the child as a commodity. The child is not being treated as a commodity as it is
treated as offspring not a commodity when the commissioning couple gains custody from the
surrogate mother.

*Michael Bayles (pro-surrogacy pro-legislation)

Surrogacy can be seen as wrong only if we can demonstrate harm to the child and/or the
surrogate. Also the likelihood of a viable legal framework should be considered an important
consideration. Surrogate motherhood could be ethically wrong as the gestation is not within a
loving marriage. No grounds, we have seen that unmarried people can raise children just as well
as married people. Psychological harm can occur to the child or the birth mother or even other
pre-existing children of the birth mother. Bayles argues that to deny women the choice of being a
surrogate mother on the grounds that they are being exploited by the practice is to essentially
penalize the victim for the inadequacies of society. Given that poor women may have few other
opportunities to make money (than through surrogacy) it would be even more unjust to deny
them this one among few avenues for securing high fees. Evidence of harm to the participants is
necessary to effectively argue against surrogacy in this and such evidence does not exist.
Harm to children and the birth mother can be expected to be less for a case of surrogacy than for
that of adoption and the amount of harm appears quite small for adoption. Bayles position on the
perception that surrogacy promotes commodification of children is very similar to that of
Andrews (above), except for a different emphasis. Bayles suggests that it is the surrogates
services or parental rights and responsibilities that are being purchased and not the child itself.
Furthermore Bayles claims that since the parental rights that are essentially being purchased in
the surrogacy agreement cannot and do not include property rights over the child, ergo the child
of surrogacy is not a slave any more than any other child . The argument that surrogacy should
not be permitted as many people can not afford the high fees is considered counter productive in
this argument: "In general, one should not accept limitations on otherwise permissible activities
because poor people cannot afford them, but should try to raise i
the income of the poor or
subsidize the activities so that poor people can afford them."
*Alan Rassaby (pro-surrogacy pro-legislation)
Rejection of proscription of surrogacy. There are many analogies to surrogacy that demonstrate
that it can not be seen as morally unethical; organ donation, blood donation, and wet nursing.
Nor are surrogate mothers necessarily seen by society as socially unacceptable or socially
stigmatized. Rassaby uses the example of biblical stories that show surrogate mothers in a
decidedly blessed light. On the access for poor 'commissioning couples' Rassaby has a very
similar argument as Bayles (above). As regards the exploitation of surrogate mothers Rassaby's
argument again closely mirrors Bayles'. Rassaby argues that surrogacy can cause no more
possible harm to mothers and children than adoption (also mirrored by Bayles).
Rassaby sees surrogate motherhood as providing a very important social service to infertile
couples who have exhausted all other viable alternatives. In fact to Rassaby the social service
factor is the primary reason that persuaded him to be in favour of surrogate motherhood.
Rassaby's argument reflects Overall's in giving credence to the assumption that proscription
would lead to black market surrogacy, but he seems either to ignore or to miss the third
alternative that Overall supports, making contracts of a surrogate nature unenforceable.
In fact Rassaby seems to be very much in favour of honouring surrogacy contracts, this is
evidenced by his suggestion that surrogate mothers leave a "valuable deposit" with a third party
agreed upon by herself and the commissioning couple to ameliorate any contract disputes.
Clearly Rassaby sees the legal contract as somehow the automatic eclipse of a natural bond
between birth mother and child as well as any possibility that a child's needs might be better
looked after by someone other than the commissioning couple through a blind contract (blind to
the child's needs). Rassaby in fact supports the idea of careful legislation made in mind of the
best interests of all parties affected, so it is possible that reality could easily take a different shape
than he envisages.

*Susan Sherwin (anti-surrogacy anti-legislation pro-prohibition)

Sherwin questions the appropriateness of the term surrogate mother. It suggests that the
contractual birth mother has only a marginal role in the life of the child, further Sherwin wants to
claim that behind this term is iithe implication that women and mothers are interchangeable
(similar argument as Overall) . Thus she replaces 'surrogate mother' with 'contractual pregnancy',
in so doing she hopes to make plain the true nature of the relationship between those concerned.
Like Overall Sherwin sees contractual pregnancy as harmful to women and society in general.
She is anti-legislation as the government would be giving its tacit approval of a practice that is
likely to do more harm than good to women and society as a whole. One important negative
impact on society could be the support of the view that women's mothering role is
interchangeable, while a man's fathering role must be at base genetic is supported even if he must
turn to strange women to father a truly genetic child. This according to Sherwin is nothing but a
reversion to the historically devalued role of women that is supported by reference to Aristotle's
flower pot analogy to women, whereby women are viewed as interchangeable (and therefore
individually immaterial) to the growth and character of the child they nourish as flower pots are
to the flowers they support.
Sherwin explains that the lack of gender equality in our society makes it impossible for
contractual pregnancy to be acceptable. In fact she claims that acceptance of the practice of
contractual pregnancy would entrench gender equality, something it is clear no feminist could
abide.
Sherwin recognizes that surrogacy is only one among many ghetto choices poor women will
gravitate toward in times of recession but she wants to argue that surrogacy is a unique form of
oppression and deserves special treatment separate from other forms of "demeaning and mind-
numbing employment". Here much like Overall Sherwin wants to explore how surrogacy is a
unique job, demanding much more from the employee than any other job we now know. It is
suggested that even to allow women to be surrogates for pure altruism (thus eliminating
exploitative roles of oppressing the poor) would be to allow women to be exploited for their
socialized role as subordinate inferiors.
Sherwin argues that even if the perfect situation for surrogacy can be shown to be possible, with
the surrogate mother, adopting mother and genetic father all falling into positive roles and
experiences. The impact on the larger society would still be negative not only because such a
situation would be rare at best but because the practice would contribute significantly to the
propagation of sexism along with a plethora of other "isms" that we are currently attempting to
abate (including heterosexism).
Sherwin ends her discussion by questioning the ability of the surrogate mother to enter the
contractual pregnancy with full rationality and autonomy on the basis of societal inequalities
beyond the woman's control. The fact that contracts are legal entities that are best arranged
among roughly equal participants makes surrogate motherhood contracts particularly susceptible
to unjust and unequal results due to inequalities of society in areas of race, gender and class.
Sherwin concludes that prohibition is the only reasonable feminist standpoint on surrogate
motherhood, given that legally sanctioned surrogacy could only entrench current inequalities of
society.

EVALUATION Of Theories on Surrogate iii

Motherhood
My position on surrogate motherhood is quite similar to that of Lori Andrews. Although
women suffer from an unjust social position in our society and the effects seem likely to be
impossible for even the most aware and intelligent of women to make a truly informed decision
regarding such things as surrogate motherhood and prostitution, we cannot say that the
government or the courts are the most qualified to make this decision for all women.
One thing that feminism has stood for over the years is the rights of women for their self-
determination for their autonomy, it does not seem to be a reasonable course of action to now tell
all women that when their personal experiences fall short of being informed in a complex society
that they should stand back and let their betters, their superiors (feminist theorists, doctors,
lawyers, judges, psychologists) make the most appropriate decisions in their best interests. If
such a program is to be adopted it would be impossible for women to make any of their own
decisions merely because whenever they make a decision in our society they do so as members
of a socially disadvantaged group and thus are not qualified unless they have a post-secondary
education to make their own choices with regards to employment relations, abortion or any other
important life decisions that are impacted by societal pressures (read here: almost any decision at
all).
Instead of the elite debating what they should and should not allow the poor unfortunates to do,
for their own good, and then imposing their decisions through the courts and legal system, they
should provide access to education so that women can make the most informed decision for
themselves as possible. If women are not capable and therefore not allowed to decide that which
is best for themselves inivareas like surrogate motherhood, then neither are they qualified to do so
with regards to abortion . The grounds for which women may not be capable of making an
informed decision on surrogacy is that they cannot know what the experience will be like or what
the experience will take from them or mean to them, thus having little experience in the field
they cannot make informed consent, when placed in these terms it appears quite plausible to
extend the anti-surrogacy argument to abortion. Now this is a bad thing not merely because
abortion should be as protected as possible, but because this sort of argument is far too invasive
of women's liberties.
If Sherwin's argument that the practice of surrogacy can only entrench gender inequality in our
society is correct then we should also actively seek to stop women from doing other things which
would add to their inequality. That is, we should not allow women to choose to be housewives as
this can only contribute to the poor social-economic position of women as a whole reinforcing
stereotypes that women should devote all of their energies to their children and the household.
The decision to become a housewife could be considered to be uninformed: Did she research the
husband thoroughly (make sure he is not a known felon or abuser of prior wives)? Did she
interview the prospective husband thoroughly (suitable breadwinner)? What sort of an allowance
will she get from the husband or, will they instead have a joint account (is he a penny pincher,
will he allow her to freely spend on that which she believes is necessary)? Will they undertake a
pre-nuptial agreement allowing for a suitable and fair division of all assets in the event of a
future divorce? Has she put any thought into the possibility of getting a formal education before
having children, in case a divorce occurs quite late on in the marriage whereby she may not be
capable of sustaining herself without great strain and in a female-ghetto job? In this spirit of
thought it seems that women should not be allowed to not go into post-secondary education, that
the practice of women marrying before they develop a career should be proscribed. Sherwin
attempted to argue that surrogate motherhood is uniquely exploitative and should therefore be
dealt with in a wholly separate way from other exploitative practices, after all it is a unique type
of employment that involves intimate contact with a being for an extended period of v
time, there
is the question of, "physiological, hormonal and social changes in a woman's life."
Unfortunately this argument although it seems quite reasonable is very difficult to defend against
the arguments proposed by Andrews. The results of accepting Sherwin's conclusions in this
argument are that women should be protected from making decisions that relate to their unique
biology, abortion revisited(!). If a woman is not capable of making an informed decision with
regards to surrogacy for physiological and hormonal changes that her body undergoes that are
beyond her control how can we say that a woman can reasonably choose an abortion.
Furthermore, how can it be said that a person is making an informed consent to heart surgeryvi
knowing nothing first-hand of what they will experience during or after the operation.
For women to achieve a true level of equality within our society she must be as free from her
biological determinism as men. Many people argue, as do I, that women have as much ability to
make cogent decisions about their lives despite their physiology (including hormones) as do
men. All that is being claimed is that their is no biologically determined propensity to
irrationality or indecision in women that does not also exist in men.
Furthermore, women should not be allowed to enter traditional careers that would only add to the
current social inequalities of our society, that is women should not be allowed to become
telemarketers, nurses, secretaries, or house cleaners. Intuitively, from my armchair, I would like
to say that it does not seem that a woman choosing to undertake prostitution or surrogate
motherhood is doing that which is in her best interests, but we must accept that perhaps she is
merely choosing a lesser of two evils. In his argument Rassaby vii
said: "Given the choice between
poverty and exploitation, many people may prefer the latter." If one attempts to apply this to
the surrogate mother it seems very applicable. How can we deny an oppressed group (ie. women)
one of the few ladders of escape from the rank of the poor exploited, to the rank of the middle-
class exploited. In opposition to this Overall argued that surrogacy merely adds to the
inequalities of society by reinforcing the female-subordinate role engendered by the
interchangeable and therefore inferior role of females in motherhood as opposed to the clearly
important role of men being the genetic father of his children.
When carefully examined this could very well be a damning legacy of surrogate motherhood but
it seems clear that in the practice of artificial insemination, whereby the sperm is donated
anonymously, the woman's genetic link to the child is clearly defined and the males position is
interchangeable and therefore inferior. Artificial insemination could be said to counteract the
practice of surrogate motherhood at least in so far as a trade-off of interchangeability of mother
and father can be demonstrated. I do not know how prevalent artificial insemination is compared
to surrogate motherhood, but I suspect that the former is a more common practice than the latter.
Given that women are currently holding the short end of the stick, regarding equality, our social
arithmetic should result in at least a rough equality of social impact between the two practices,
given that the interchangeability of men (artificial insemination) is a more common practice than
the interchangeability of women (surrogate motherhood). It seems that my position must be quite
accurate considering the differing kind of investment required of men and women to carry out
these practices, that is, men spending several minutes a few times a week to make a donation
versus women devoting their bodies for more than 9 months. The law of averages dictates that
from the sheer quantity and quality of involvement artificial insemination is more accessible and
therefore a more prevalent practice than surrogate motherhood.
I concur with Sherwin on the need for a just contract to be between roughly equal parties:
So long as women must make their reproductive decisions under conditions of inequality and
limited autonomy, it is a mistake to look only at the particular moment of reproductive decision-
making and call it rational or autonomous. Affluent men set the terms of participation for both
their wives and the contracting birth mothers in this non-conventional reproductive arrangement;
the cooperation of the women involved cannot be separated from the matter of their relative
economic and social disadvantage.

For this reason Overall supports prohibition

viii
of surrogacy contracts, whereas I believe a
prohibition would be unfair to women .
I believe the only responsible conclusion would be that surrogacy contracts should be rendered
unenforceable
ix
by the law, I intend this in the full spirit of the Warnock Committee cited by
Overall . In this way women involved in surrogate motherhood would not totally lose this ladder
of escape from poverty it would merely be a less attractive ladder, and the commissioning couple
could not legally demand the child from the surrogate mother. The elimination of any but
"private persons" in a surrogate motherhood agreement would be rendered illegal, abolishing a
multifarious regimen of possibly oppressive institutions. The unenforceability mechanism would
lessen the popularity of surrogacy as well as help pave the way for a society of greater equality.
Thus it can be said that women can be capable of making reasonable decisions for themselves,
but considering the circumstances that occur due to social inequalities their agreement should not
be considered to be of a legally contractual nature involving equals. In this way women are
allowed a free choice and self-determination without allowing others to take advantage of their
oppression by further and greater oppression. Clearly, it would be nice if women were truly
social and economic equals with men but given the fact that there are inescapable social
inequalities this compromise could be a reasonable and hopefully fair accommodation of the
unconventional circumstances involved in surrogate motherhood agreements. It would be a far
better thing if we could merely say, "we don't want women to turn to surrogacy for financial
need, so let's just abolish poverty!". Unfortunately, after having said this we must realize that we
live in a very un-Utopian society and the process of eliminating poverty is not going to happen
anytime soon -- perhaps one day, meanwhile women and other groups of poor people must find a
way to subsist and rise above levels of mere subsistence.
This type of solution to contracts, rendering them unenforceable, made between people within
unequal social groups could be applied to other relations besides surrogate motherhood and
could possibly become a useful cornerstone in the arsenal of society to overturn inequalities that
plague an optimistically egalitarian society.
THE ROLE OF CHILDREN
Bayles suggests that it is the surrogates services or parental rights and responsibilities that are
being purchased and not the child itself. Furthermore Bayles claims that since the parental rights
that are essentially being purchased in the surrogacy agreement cannot and do not include
property rights over the child the child is not a slave or commodity. I must differ with Bayles on
this as if the surrogate mother contract includes a clause that arranges for transfer of the child
born to the birth mother and this contract is considered legally enforceable and there is money
involved as terms of the contract, the child is bought pure and simple. If the contract were
considered legally unenforceable (even though involving money) the transfer of the child could
be attained in a way very much like adoption. If legally the surrogate mother must turn the child
over to the commissioning parents one has to ask what the legal standing is of the couple. It
would seem that the legal standing of the couple is through fulfilment of the contract which
provides for payment of a sum to the surrogate mother in return for the child this seems like the
sale of a child to me. True the child of surrogacy is not a slave any more than an adopted child or
any other child for that matter, so its treatment at the hands of the couple cannot be any different
than a 'normal' child.
Andrews suggests that babies are not sold in surrogacy any more than are they sold in a
caesarean section or an invitro-fertilization, money is given to the surrogate mother or doctor for
services not for the child as a commodity. This analogy is not very appropriate for there is no
similarity of situation between invitro-fertilization or caesarean section for the lawful and orderly
transfer of the child (delivery of the goods). The analogy of a wet-nurse is perhaps most
illustrative. In this example the wet-nurse's body could be said to be commodified as she is
providing a service of sustaining the life of the child in a 'natural' way, but the child is in no way
commodified by this process as it is not transferred in any way, it is not a good in itself. If, in a
surrogacy agreement the transfer of child were not contractually provided then a custody suit
might ensue at the child's birth and the child might be awarded to the couple based on its needs
and the surrogate mother's inability to provide for such, or the reverse might occur, this situation
would not be seen as a commodification of the child and might perhaps be the fairest method of
arranging for custody.
For a legally binding contractual surrogate motherhood agreement the child is a good that is the
product of the labour of the birth mother. In this situation the contract will often include a clause
that allows for the delivery of the good, this good is undoubtedly the child. Thus it would appear
that the legally unenforceable mechanism that I adopted above also proves to be a satisfactory
solution to the commodification of the child, in this instance the couple would need to adopt the
child in order to attain custody and their would be no legally viable contract involved.
WHAT IF TRUE ...
It appears rather unfortunate that the legally unenforceable mechanism, could leave surrogate
mothers unprotected in the event that they arranged to birth a child for a couple and the couple
refused to pay her even after she allowed a transfer of custody. Although this eventuality does
not seem very likely to occur. Furthermore, it seems like a bit of a mechanization on my part to
consider the child as not being treated as a commodity merely because there is no legally binding
contract. These complication could cause me to change positions from day to day given my
mood. Some days when I feel especially righteous about commodification I would support the
idea of surrogacy only on a strictly voluntary and unpaid basis, this way it would be merely the
altruism of the birth mother and nothing else that motivates her actions -- and the child is
unequivocally not being sold or bought. On other days I might consider that commodification is
more a thing of spirit than of letter, intentions of those involved should be considered as to
whether they are commodifying the child, and it should be reasonable for the couple to reimburse
the expenses undertaken by the surrogate out of a sense of mutual kindness and a desire to help
out their fellow human as they in turn are being helped -- after-all poverty is a terrible and unjust
thing no person should have to suffer it and every possible avenue should be allotted to those
seeking a way out (not to mention those too lost to try).

i From Bayles' article p.26 top-left.

ii But not similar enough for my conscience to merely express one or the other in this summary.
iii My terminology of choice as to what exactly surrogate motherhood involves is quite well
described by Sherwin p 183
iv Andrews p 209
v Sherwin p 188
vi This argument courtesy of Andrews p 210 middle
vii Rassaby p 103
viii Given the argument described by myself earlier that surrogacy is one of the few escape
ladders for women in poor conditions.
ix Overall p130