The topic at hand is the moral status of commercial global surrogacy, an activity in which one party commissions another party from a foreign country to carry an embryo to term. The guiding inquiry of the paper is whether there is a moral problem with commercial global surrogacy. I will discuss both the concept and the practice of commercial global surrogacy, and try to show that the concept of commercial global surrogacy is not necessarily and inherently morally wrong, but contend that the paradigm example of practical (practice-related) concerns for moral problems in commercial global surrogacy does show that the practice has room for improvement.
The first discussion will be wholly conceptual. The purpose of this is to show that the concept of surrogacy is often conflated with its practice, and that this confuses the discussion of its moral status. Now, an act which is necessarily and inherently morally wrong is something which is wrong definitionally, or wrong analytically according to what it entails. Murder, for example, is an act which is necessarily and inherently morally wrong because murder is a species of killing whose differentia consist in its being-wrong. It is definitionally wrong and hence there can be no morally acceptable form of murder – and so we know if any instance of “murder” does not seem wrong, we know we have misapplied the term. Commissioning a hitman to kill your spouse because they leave the toilet seat up is a more complicated act which is analytically wrong because it entails being the ultimate cause of an undeserved harm or a definitionally wrong act, namely, murder, without being the proximate agent. Taking part in commercial global surrogacy is not in concept such an act, nor does it consist in being the ultimate cause of such acts.
The act “commissioning a foreign surrogate” should be thought of as a species of “commissioning a foreign laborer.”[i] Its differentia is only in the type of labor contracted, which is a special kind of reproductive labor, which involves contracting someone to bear a child on behalf of another person, who is of foreign nationality.[ii] This is clearly not definitionally wrong in the sense that murder is, and it is hard to see how it is analytically wrong in the sense that commissioning a hitman to kill your spouse is wrong. Objections on conceptual grounds that are not mindful of the scope of this differentia either entail objecting to broad swathes of practices which are uncontroversially unproblematic or attribute more to the concept of global commercial surrogacy than is necessarily in the concept. Most would-be conceptual objections are of these kinds (though they can be raised as practical objections to particular instances of commercial surrogacy). Pointing this out shows that such conceptual objections are merely prejudicial and misled intuitions, perhaps the results of uncritically applied ideology or an irrational aversion that should be overcome rather than yielded to.
Two common conceptual objections to commercial global surrogacy that fall under these categories are “it is wrong to contract a person/woman for the use of their body” and “global commercial surrogacy relationships are necessarily exploitative to some degree.” The first example is a case of problem 1 – this objection problematizes every labor contract in concept, which is untenable. The second is a case of problem 2 – global commercial surrogacy in concept says little about either party beyond their disparate nationality; it says nothing about their actual nationality, the parties’ relationship, their responsibilities, circumstances, number, genders, sexualities, or economic status.
Examples of objections that are not conceptually misled are “it is wrong for a woman to contract out the use of her womb” or “it is wrong to commission someone to bear a child because the act of childbearing is in some way ‘sullied’ by economic incentive.” However, the claims of why a womb ought to be considered more sacred than the rest of the body, or how the act of childbearing gains its sacrosanct status as a special kind of labor seem impossible to justify without first holding prejudicial beliefs about the body and its functions that are derived from mere custom and not any necessary moral differentia of the womb or the act of childbearing. It may be enticing to agree that “it just seems wrong.” But it is not philosophical to do so.
The narrow conceptual dialectic above, while important to the discussion, hardly encompasses the full breadth of the moral concerns about commercial global surrogacy. Henceforth the discussion will be largely on practical (practice-related) terms. The paradigm case for practical concerns in commercial global surrogacy is that of the first world, relatively wealthy couple that commissions a surrogate from the developing world, especially a surrogate from the ranks of India’s lower class.
The surrogate contracted in such a paradigm case is uneducated and from a terribly impoverished community which is ill-served by its government. She typically has few, more likely no, realistic opportunities to claim economic agency for herself and attain upward economic mobility for herself and her family. Her realistic aspirations are circumscribed to the domain of subsistence, well below what the first world may consider acceptable. She also faces hardship and stigmatization. The commissioning couple is, aside from their childlessness, presumed to be entirely well-off financially and emotionally, placing them in a social position that is better in almost all measurable respects. The couple would have to pay many times more to commission an American surrogate over the Indian surrogate, but the amount they pay is still worth up to five to ten years of wages otherwise attainable for the surrogate – enough to buy a house or a college education outright. Is the commissioning couple exploiting the Indian surrogate by commissioning her for a far lower price than the American?
Vida Panitch, in her 2013 paper[iii], argues that the practice of commercial surrogacy in the paradigm case is an exploitative although mutually beneficial relationship, not because the commissioning couple has a duty to rescue the surrogate or because the commissioning couple is engaging in coercion, but because the commissioning couple is taking advantage of the space created by an abdicated duty by the state to the surrogate (of education, etc, to raise her bargaining power) in order to secure her services for less than they are worth (p.11-12). However, I would rather say that her society has failed to provide the minimum education and means for her to raise her economic value as a laborer – not the state. Thus I can avoid the highly problematic conclusion that Panitch reaches, namely, that we should rely upon the catastrophically corrupt Indian government[iv] and its catastrophically corrupt regulatory arms[v] as the means of affecting positive change in the economic lives of Indian surrogates (p.13). Instead, we should consider this an issue that global women’s advocacy groups can help to alleviate by, for example, providing education and enrichment for underserved Indian communities, educating surrogate contractors on the conditions in which these surrogates live, and advocating on behalf of surrogates to their surrogate agencies.
In the meantime, we should not by any means advocate for a moratorium on an economic practice which, while in one sense exploitative, is mutually beneficial, is not directly coercive, is not in concept morally wrong, and is often the only option for many underprivileged Indian women seeking a means of escaping the vicious cycle of generational poverty and providing their children to means to do so.
Notes and References
 I believe it is worth noting that this is the global surrogacy arrangement that receives the most attention, but it is not by any means the only one that exists, which is another reason objections on the grounds of this particular arrangement are not acceptable as conceptual objections (they fall under category 2 objections). For example, Chinese parents often contract American surrogates who are by no reasonable standards coerced into doing so.vi
[i] I assume few would claim “being contracted as a surrogate” is, conceptually, the morally problematic side of an arrangement of global surrogacy. This is because many (mistaken) objections lean on the commissioning couple’s relative position of economic power as contractor and the possible exploitative relationship thereby implied. However, if commercial surrogacy per se and in concept is problematic, then it is reasonable to think that both parties are at fault – perhaps not equally responsible, but inarguably complicit, in the way that both contractor and contracted in the hitman contract are equally responsible.
[ii] Other reproductive labors broadly defined include egg, sperm, or mitochondrial contribution, nannying, operating a day care center, and even food preparation.
[iii] Panitch, Vida. 2013. “Surrogate Tourism and Reproductive Rights.” Hypatia, Volume 28, Issue 2
Spring 2013, pp274–289.
[iv] Singh, Nirvikar. “The trillion-dollar question.” The Financial Express, Dec 19, 2010, http://www.financialexpress.com/archive/the-trilliondollar-question/726482/0/. Accessed 12 March 2017.
[v] Murthy, Raja. “Cops turn robbers on India’s roads.” Asia Times, August 27, 2009, http://www.atimes.com/atimes/South_Asia/KH27Df03.html. Accessed 12 March 2017.
vi Watson, Ivan and Young, Connie. “California mom, Chinese dads: The story of an American surrogate.” CNN Money, August 24, 2015, http://money.cnn.com/2015/08/24/news/surrogacy-china-american-mom/. Accessed 12 March 2017.