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Applied Ethics
(other than Bioethics)

Surrogacy: Exploitation or Violation of Intimacy?

John Ozolins

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ABSTRACT: In this paper, I argue that if the debate about the morality of surrogacy is couched in terms of respect due to other human beings and the paramount importance of their intimate relationships with one another, then it may be shown that most ordinary instances of surrogacy are morally wrong. Human flourishing cannot be separated from one’s relationships with others and any circumstance which is destructive of such relationships must be considered immoral. The surrogate, unless she is treated as an object or merely as a means to an end, is intimately involved in the relationships between the child and its putative parents and important relationships become ambiguous and so harmed. Furthermore, if this view if rejected, then the feminist argument that surrogacy always involves the exploitation of the surrogate renders it immoral.

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The debate about surrogacy revolves around the following issues: (a) whether it is in the interests of the child involved or in the interests of society; or (b) whether it is exploitative of the birth mother or in the interests of women, as a whole. In considering the issues under (a) it is often argued that children are at risk of harm from having socially constructed family relationships rather than natural ones. Many commentators have likened the experience of children and birth mothers in surrogacy arrangements to children and relinquishing mothers in adoption, and point to the potential psychological and social harm that may result. (1) One argument against surrogacy therefore revolves around the relationships which are involved. Although talk of interests seems to couch the debate in utilitarian terms (2) it is not the only way in which the arguments about surrogacy may be seen. Another way of seeing the debate is in terms of whether surrogacy does harm to the respect due to other human beings, the participants in the surrogacy process and the child who is conceived and brought to term. This involves a consideration of the relationship between the husband and wife (the infertile couple as well as the surrogate and her partner) and the relationship between the child and his or her putative parents. The second argument against surrogacy is concerned with the treatment of a person, generally the surrogate but may include others, as a means to an end. I shall argue that if one takes relationships between persons seriously, then surrogacy will be destructive of intimate relationships. Furthermore, if surrogacy is to avoid this it can only do so by treating the surrogate as a means to an end and not as a person. If this is so, then surrogacy is exploitative and so immoral.

I shall begin with a consideration of the importance of relationships in understanding of what it is to be a human person and how these relationships contribute to what we understand by human flourishing. It is commonly thought that a person alone on a desert island does not have any moral decisions to make because there is no one to be affected by whatever actions she chooses. (3) Whether one agrees with this or not, the salient point is that morality involves the idea of relationships between persons and that we act immorally when we harm others. In injuring others we fail to accord them the respect that they are due as persons and so our relationships with them fail to fully support both our own flourishing as well as theirs. There is a failure to see that the ‘I’ becomes the ‘I’ fully only through the ‘Thou’, that is, through the other. A hallmark of ethical theorising is that moral principles must be universalisable, which means that our moral decision making is not restricted to a realisation of our own wants and needs. Necessarily, we are obliged to respect the wants and needs of others because we respect the person and recognise that it is through their flourishing that we ourselves flourish. We remain attentive to the needs and wants of others by maintaining our relationships with them. (4) Hence if surrogacy harms those relationships which contribute to our flourishing as human persons then it must be considered morally wrong.

MacIntyre (5) argues that one should resist the temptation to think of human life atomistically, and instead to think of it as situated in a unity which encompasses the whole of a life and its social relationships. He remarks that the Aristotelian virtues do not function at all except in the arena of social relationships. That is, in order to make sense of human moral action we have to situate it within the practices, traditions and commitments of the communities within which it is practised. The realisation of human goods, therefore, does not take place in isolation from others.

A similar argument is mounted by Taylor (6) who says that to know who I am is a species of knowing where I stand. My identity, he says, is defined by the commitments and identifications which provide the frame or horizon within which I can try to determine from case to case what is good, valuable, or what ought to be done, or what I endorse or oppose. That is to say, Taylor identifies the self with the moral commitments that one makes. "To know who you are is to be oriented in moral space." (7) Taylor’s view of the self seems to be a very rich notion of what it is to be a person, involving our moral stance and so our relationships with other human beings. I am a self only in relation to others and so for Taylor who I am emerges from conversations with others. The notion of a human life as a narrative inevitably means a consideration of that life in relation to those other human lives with which it is entwined.

In considering the relationships involved in surrogacy, it is worth noting that there are two main levels, those which involve intimate, face to face relationships, Gemeinschaft, and those relationships which are more distant and involve society, Gesellschaft. Within the first set of relationships we locate the relationship between (i) the infertile couple, (ii) the surrogate and the infertile couple, (iii) the child and its genetic and surrogate parents, (iv) the child and any siblings. In addition, we might also consider the wider intimate relationships involving grandparents and other relatives. Within the second set of relationships we might include wider communal relationships, such as those scientists and medical practitioners involved in assisted reproductive technologies, as well as the general community. It is the set of relationships within the first set with which we shall be concerned.

In considering whether surrogacy is morally licit, it may be argued that there can be fewer moral objections where the infertile couple are the genetic parents of the child, that is, in a straightforward case of gestational surrogacy. Arguments for surrogacy may face fewer objections in the case of gestational surrogacy because the child is presumed to be incontrovertibly the child of the parents commissioning the surrogate to carry their child for them. (8) That is, it is presumed that the relationships between husband and wife and surrogate and child are clear.

Suppose a woman wishes to help another by bearing a child for her. She carefully considers her action and its likely effect on others and then freely decides to bear the child for the other woman. The woman may be a gestational surrogate or may contribute the oocyte and the infertile woman’s husband the sperm. Alternatively, the embryo may be formed by IVF from her own oocyte and donor sperm. Again, the question that is raised concerns the status of a child who is the genetic child of the surrogate and her husband, if he was the sperm donor. The child in fact is a child of that marriage. On the other hand, if the infertile woman and her husband supply both ovum and sperm, then the child is their genetic child. The surrogate’s role is limited to gestation. To say this, however, should not be taken to mean that the relationship between the birth mother and the child is to be viewed lightly. Many feminists argue that this relationship is at least as important as the genetic relationship. (9) If so, then the issue of parenthood is blurred. It is the importance of the various relationships involved in surrogacy and the harm which is done to the persons whose relationships are made so ambiguous that is of moral significance here.

An important consideration is the significance and strength of the relationship between the infertile woman and her husband or partner and whether the presence of the surrogate as a third party in the relationship constitutes a destructive element which erodes the intimacy which exists in an exclusive, committed relationship. (10) If we argue that the surrogate must not be treated as merely a means to an end, then she must be recognised as a person. Recognising someone as a person means that we cannot treat them as only serving to carry out a function. In using descriptive language about the role of the surrogate, it is easy fail to convey the intimate relationship which the surrogate has with the child she is carrying. The surrogate does not just bear a child, but the child who is to be in an intimate relationship with the commissioning couple (that is, the couple seeking and arranging the surrogacy, irrespective of whether it is a commercial arrangement or not). The child is in an intimate relationship with the surrogate and so also is the surrogate with the infertile couple. This suggests that the exclusive relationship between the commissioning couple is no longer so, since there is another intimately involved in the having of their child. This involvement is different from any other individual who might be said to have a relationship with the couple, since the involvement is directly with what is the most intimate expression of their love. When couples seek out a surrogate it is not to extend their relationship to include a third adult person, but to cement their relationship by extending it to include a child. A couple intent on having a child at all costs sacrifices the exclusive bond between them and both their relationship and that with their child is compromised. Doing this intentionally is morally wrong.

The desire to have a child of "one’s own" is a couple’s desire to embody, out of the conjugal union of their separate bodies, a child who is flesh of their separate flesh made one. (11) This is a very powerful image: the notion that a child is produced through the union of a man and woman who have determined that this is the way in which they will express their love for one another. It is a means of making their love incarnate. Surrogacy cuts across this, even though in the case of gestational surrogacy the child is the genetic offspring of the infertile couple. The involvement of a third person from whose flesh this child is produced means that the child is linked with another whose presence in the intimate conjugal relationship compromises that relationship. Kass believes that the largely universal taboos against incest, and the prohibition against adultery, suggest that clarity about who your parents are, clarity in the lines of generation, clarity about who is whose, are the indispensible foundations of family life. Clarity about origins is crucial for self-identity, itself important for self-respect. (12)

Surrogacy comes between the union of husband and wife in a crucially fundamental way so that obtaining a child by this means is immoral. At present, technology is making great strides in keeping premature babies alive at earlier and earlier stages of development and it is not inconceivable that full ectogenetic gestation will be possible in the not too distant future. Suppose now that an infertile couple are told that ectogenetic gestation is available, but great secrecy is needed since the technology needs to be trialled. They are offered the chance to take part in this trial. Assuming that the couple are able to conceive in the normal way, but the woman is unable to carry the child, there does not seem to be any moral objection to ectogenetic gestation, since we can regard it as an extension of the technology used to keep premature babies alive at earlier and earlier stages. The couple gratefully agree to be part of the trial. Unbeknowns to them, however, the reproductive technologist involved with their case has not in fact perfected ectogenetic gestation (it is still some way off, but he needs results to keep his research work going and the funds flowing in) and has secretly arranged for a surrogate to be paid to carry the child. In this case, we would have to say that the union between husband and wife has not been affected. Although we might not regard the surrogacy arrangement as moral for other reasons, it is not immoral because a third party has come between the conjugal union of the married couple.

We are now faced with the situation that in order to conform to the insistance that no third party be allowed to come between the husband and the wife the surrogate becomes objectified. The surrogate is not regarded as a third person coming between the husband and wife, but rather as, in our example, a "hired artificial womb" or " artificial baby carrier". If now we consider the case where the infertile couple hire a real (natural) surrogate, but treat her as merely a "breeder", (13) then we fail to treat her as a person, but merely as an object or a means to an end. She becomes like the artificial womb. From this point of view, she is no longer a third party intruding on the unity of the spouses. This concern for the unity of the spouses seems to be why artificial insemination of a surrogate in cases where the wife cannot supply a fertile ovum is preferred, rather than natural insemination, since it does not involve any relationship with the surrogate, but the price of this seems to involve treating her as a thing. There are now other reasons to claim that surrogacy is morally illicit, not the claim that it involves interference in the conjugal relationship, but the failure to treat the surrogate as a person.

There are in these objections at least two individuals who are being treated as means to an end, the surrogate mother and the child. Charlesworth argues that the child is not being considered as a means to an end because in surrogacy arrangements the child is being brought into existence because the infertile woman wants the same as the fertile woman does, namely to have child and so does not claim a right to have a child any more than the fertile woman does in the same circumstances. Charlesworth sees no difference in the intentions of the two women. (14) There is, however, one major and obvious difference and that is that the infertile woman cannot have a child in the same way that the fertile woman can. (15) In an ideal situation, as we have seen, a couple will want to bring a child into existence as a manifestation of their love for one another and out of a disinterested wish to give life to a new human being. An infertile couple who want to do the same are not wanting something illicit. The difference is that it is not possible for the infertile couple, except through the use of a surrogate. This is a relevant difference, since it involves a third party in the relationship. It is this third party that is being used as a means to an end. There is no doubt that the presence of a third party will bring a degree of ambiguity, at the very least to the relationship between the husband and wife. The assumption by Charlesworth seems to be that the surrogate mother has no relevance whatever to the infertile couple and the child that will result. This is a devaluing of the surrogate and so is misguided. To argue that one does not have a relationship with the person that bore one is false. The person who carried a child has an intimate relationship with that child which cannot be ignored or devalued. (16)

Many feminist writers argue that surrogacy is so exploitative and oppressive of women that it is not morally licit in any circumstances. Rowland, for example, points out that it is assumed that genetics determine the most important relationships, that a woman who has carried a child for nine months is somehow less connected to the child than a woman who is genetically a child’s mother. There is an assumption that if a woman carries a child from an egg which is not her own, then the child is not her own. Rowland claims that women’s experiences contradict these views. She notes that both a birth mother and a social mother have formed a relationship with the child, whereas a genetic donor has not necessarily done this. (17) Szikla says that attempts to reject the birth mother’s undeniable experience of relationship with her developing baby make use of a number of alienating phrases which serve to disconnect the birth mother with the child. For example, she is said to provide an endocrinological vehicle", she performs nothing more than "a basically gestational role, etc. Language is used to reduce and denigrate the miracle of life which she carries within her. Szikla makes the point that reproductive technology reinforces the belief that women must pursue every possible avenue available to them in order to have a child because the only proper form of parenting is biological. Szkila quotes Margaret Radin as warning against commercial surrogacy because it could make both women and children be seen as having only monetary value and so alienating them from their personhood in a way that brings about an inferior conception of human flourishing. (18) That is, women and children are seen as commodities.

Both the woman whom supplies the ovum and the woman who gestates the child have a claim to being the mother of the child and there does not seem to be any easy way to determine which of the two contributors should be considered the mother — the woman who supplies the ovum or the woman who carries the child. Both have a claim to being the mother of the child. If neither claim can be dismissed, then surrogacy by its very nature must involve three people and so either the notion of an exclusive bond between a husband and wife is destroyed or if this is to be preserved, then the surrogate has to be treated as a commodity. (19) Even if we were to find a satisfactory resolution to this dilemma, there are larger questions concerning the identity of the individual. Personhood is not solely determined by either genetic or biological makeup. Identity is constructed in addition to these from one’s social relationships. It is these which become problematic for someone with two mothers. It might be argued that it leads to a richer set of relationships, but on the other hand, it might lead, as it often does for children of migrant families living in a foreign culture, to ambiguity and a sense of alienation from those with whom he or she ought to be intimately connected. The child does not have a complete knowledge of the complex web of interrelationships which contribute to his or her identity. (20)

In considering the issue of surrogacy, we find ourselves on the horns of a dilemma. Assuming that the relationship between the infertile woman and her partner is a marriage relationship or a fully committed one and part of treating the surrogate as a person involves having a relationship with her, we find that surrogacy erodes the exclusive union between the infertile couple. Solving this by rejecting the notion that the relationship between the couple ought to be exclusive changes the model of marriage and family with which we have been working. Much further argument would need to be given to show that alternative models, such as surrogacy implies, satisfactorily enable human flourishing to occur. In any case, this solution seems to be at odds with the very reasons why infertile couples seek treatment for their infertility — they are not seeking extra partners in their relationship. If we assume that there is no relationship to be had with the surrogate then we reduce her to the status of a "baby carrier" a "breeder", a means to an end. In either case, we arrive at the conclusion that surrogacy is in all of the usual cases morally wrong.

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(1) Wallace, M. "Surrogacy", Discussion Paper, Attorney General’s Department, ACT Government, Canberra, 1993, 6

(2) This is because it is characterised in terms of the interests of those involved and suggests that the issues can be resolved by satisfactorily maximising the overall utility of surrogacy.

(3) We need not agree with this view. A person alone on a desert island is still linked with other human beings through family relationships. One could still harm those relationships by, for example, thinking evil thoughts about others. A theist would certainly argue that because there is a personal relationship with God, one is never alone and so relationships can always be harmed.

(4) This is not to suggest that we are obliged to always act in accord with the needs and wants of others for these may be contrary to human flourishing.

(5) McIntyre, A. After Virtue, 2nd Ed., London: Duckworth, 1985, 204ff.

(6) Taylor Charles, Sources of the Self, Cambridge, Mass.: Harvard University Press, 1989, 27

(7) Taylor, Op. Cit., 28

(8) This depends on assuming that genetic parenthood determines who the real parents of the child are and this is far from settled, as feminist arguments show. Nevertheless, it is true to say that conventionally paternity is usually settled by conducting genetic tests. By extension, it is assumed that maternity is conventionally settled by conducting genetic tests and so parenthood is settled by genetic tests. The picture is, however, much more complex than this, since it fails to take into account the social and relational nature of parenthood.

(9) Christine Szikla says that attempts to reject the birth mother’s undeniable experience of relationship with her developing baby make use of a number of alienating phrases which serve to disconnect the birth mother with the child. (3) For example, she is said to provide an endocrinological vehicle", she performs nothing more than "a basically gestational role, etc. Language is used to reduce and denigrate the miracle of life which she carries within her. See Szikla, C. "Surrogacy, Why Women Lose", http://www.readings.com.au:8080/~wise/RT2.htm

(10) It is reasonable to assume that such a relationship is implied as existing between the infertile woman and her partner, since they presumably seek surrogacy as a means of strengthening their own relationship through carrying out the role of parents. If they do not, then it seems to me we return to the question of whether the child is seen as a means to an end.

(11) Kass, Leon R. ""Making Babies’ Revisited" in Shannon, T. A. (ed.) Bioethics, 3rd Ed. Mahwah, New Jersey: Paulist Press, 1987, 464

(12) Ibid., 466

(13) As Rowland refers to women who are exploited as surrogates by commercial interests who broker surrogacy agreements in America. See Rowland, R. Living Laboratories, Sydney: Pan MacMillan Publishers Australia, 1992, 172.

(14) Charlesworth, M. Op. Cit., 83

(15) Without wishing to give a complete Aristotelian argument in support of this point, the following provides a sketch. If we consider the infertile woman as having a certain form, that is, having certain attributes, we can claim that one of her attributes, different from the fertile woman is that she lacks the potential to have a child. She cannot actualise a child and so it is not possible for her to have the same intention to have a child as fertile woman. We cannot ignore the intermediate steps which are needed to bring about the having of a child for the infertile woman. It is not enough to merely focus on the final end.

(16) Rowland, for example, regards the potential for depersonalisation strong, quoting the case of a woman who said of her sister (in an a case of altruistic surrogacy), "We are just using Jacki as a suitcase really, an incubator to carry it. At the end of the day it’s our child". Rowland, R. Op. Cit., 164

(17) Ibid., 164-166

(18) Szikla, C. "Surrogacy, Why Women Lose",http://www.readings.com.au:8080/~wise/RT2.htm, 3-6

(19) Another solution is to say that this dichotomy does not hold and that there is nothing wrong with a ménage à trois (or à quatre, if both sperm and ovum are donated). This solution, however, changes our conceptions of marriage and radically alters the context in which the problem is being discussed in this paper.

(20) See Mitchell, J.D. "In Vitro fertilisation: The Major Issues - A Comment", Journal of Medical Ethics, Vol. 9, 1983, 196-199, who makes a similar point.

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