By J.Y. Lee.

Surrogacy is a form of third-party assisted reproduction involving a gestational carrier other than the intended parent(s). There are no globally recognized surrogacy laws, but countries around the world often frame the legality of the surrogacy arrangement in terms of whether it is commercial (paid) or altruistic (unpaid).

Of the nations that do not outright ban surrogacy, few permit commercial surrogacy. However, several countries – the United Kingdom, Portugal, and Denmark, to name a few examples – legally allow ‘altruistic’ surrogacies. What are the reasons for this? Common ethical concerns that make commercial surrogacy unpopular include the worry that potential surrogates would be exploited, especially in low and middle-income countries, and that it would commodify pregnancy and childbirth. These concerns are a major part of why India, once a global hub for commercial surrogacy, moved to outlaw it.

The general hope with banning commercial surrogacy might be that once money is taken out of the equation, only those who do not need the money and are motivated by purely ‘altruistic’ aims would volunteer to be surrogates, making the enterprise less morally sketchy on all sides. At least, this is my reading of why the commercial/altruistic distinction prevails – the legal distinction between the two would make sense if it is reasonable to presume that payment for surrogacy can be treated as a placeholder for the moral permissibility of surrogacy.

But is the latter true? In my recent JME article, I say that the commercial/altruistic distinction fails to adequately capture what is or isn’t morally legitimate about surrogacy. As the literature has already pointed out, for example, payment does not inherently corrupt a surrogate’s motivations; and emotional pressure (perhaps by a family member) for surrogates to provide the ‘gift’ of gestational labour is exploitative and oppressive in its own way. Thus, simply separating a paid arrangement from an unpaid one would fail to delineate the context-specific complexity of reasons, motivations, and relationships which do morally constitute whether we should or should not find such instances acceptable. So while concerns about commercial surrogacy may in many cases be well-founded, it strikes me as problematic – to say the least – to legislate for surrogacy on the basis of a heuristic as reductive as the commercial/altruistic dichotomy.

What would be a robust alternative to the commercial/altruistic framework? I go on to argue, in my article, for what I call a virtue-ethical approach to the moral assessment of surrogacy. A virtue ethics inspired framework moves away from the universalizing tendencies of many principlist approaches to bioethics and normative ethics. Instead, it pays special attention to the virtues and particulars of people – their moral dispositions, traits, and so on. My virtue-ethical approach rejects outright the notion that there is some one-size-fits all principle against which we can make moral evaluations of surrogacies. It seems to me to make much more sense, in processes as dynamic and as complicated as surrogacy, to judge not on the basis of whether the surrogate in question is paid or not paid, for example, but on whether the arrangement itself – and all the parties involved – exhibit certain virtue-abiding or non-virtue abiding features relevant for moral assessment.

The language of ethics around surrogacy can easily be captured by virtue considerations: justice, generosity, patience, and compassion all appear to be non-arbitrary details (‘virtues’) we can look for in a surrogacy arrangement to determine whether it is set up well and will be carried out in a morally acceptable way. We would have to ask questions about the multiple actors and their stakes: What is the relationship like between a commissioning parent and the surrogate in question? What moved a potential surrogate to agree to carry out gestational work in the particular instance? How have the parties’ interests and goals evolved throughout the process?

Figuring out answers to these kinds of questions would help us confirm whether the things we tend to intuit or suspect about surrogacies are actually true, or if we have rather missed morally relevant elements of the case as a result of posing payment as the primary proxy for morality. For example, finding out that a paid gestational surrogate commissioned by a gay couple was primarily driven by a desire to help advance their reproductive equality would probably shift negative assumptions about the distorting influence of money on that surrogate.

Of course, virtue considerations may not be sufficient to rule that a surrogacy arrangement is overall morally acceptable. Additional safeguards, like an adequate healthcare environment for the surrogate, is also morally relevant to consider – as would be the case, equally, for the commercial/altruistic model. What the virtue-ethical framework endeavours to do, however, is to enrich our moral approximations of surrogacy arrangements in ways that dichotomies about payment do not.

One might object at this stage that my moral account of surrogacy can hardly inform the legal status of surrogacy. I would maintain, however, that these insights speak in favour of reforms to authorize diverse kinds of virtue-abiding surrogacy arrangements. Although the commercial/altruistic dichotomy appears to have the advantage of simplicity – we can say ‘yes’ or ‘no’ to either one – it has the disadvantage of oversimplifying or even failing to recognize relevant moral variables at the policy level. The task that lies ahead of us for moving beyond the rather limiting commercial/altruistic dichotomy, therefore, is to take seriously the complexity of surrogacy and to open up dialogue about how the ethics between participating agents can be improved and consequently formalized.

Paper title: Surrogacy: Beyond the Commercial/Altruistic Distinction

Author: J. Y. Lee

Affiliations: University of Copenhagen

Competing interests: None declared

Social media accounts of post author:

Twitter – https://twitter.com/jyleephilosophy

Webpage – https://www.jyleephilosophy.com