Moral Institutions and Regulation of Surrogacy

The article talks about surrogacy, the functioning of surrogacy markets, and the moral reservations people have about monetary exchanges in surrogacy.

By Lauren Hall

A gestational surrogate in California is currently suing the man who hired her for custody of at least one of the triplets she delivered in March of this year. She is unlikely to win, but the case brings up some interesting questions about the interplay between markets, technology, and reproduction. (You can see an older discussion of the surrogacy case, prior to delivery of the triplets, here).

The case is a tangle of poorly read or willfully misunderstood contracts, an unprepared (and possibly somewhat delusional) father-to-be, and the pro-life/pro-choice crowd throwing themselves in for good measure. Melissa Cook was hired by a deaf 50-year-old man who lives with his parents to gestate two babies for him, created with his sperm and donated eggs. When one of the embryos split, resulting in triplets, he asked Cook to selectively reduce the pregnancy by aborting one of the fetuses. She refused, despite the contract she signed agreeing to terminate or selectively reduce at the request of the father. The case dragged on until the termination question was solved by the birth of the triplets in March.

After reading the initial summaries of the case, the Wild West of the fertility world does seem to require some kind of intervention and every article I’ve read on the case ends with a call for more regulation. But when I stopped and really thought about it I couldn’t figure out why. Anyone can get pregnant, without a license or permit or proof of adequacy (BHL has dealt with parental licensure before). Why do our intuitions about reproduction change when there’s money or technology (or both) involved?

If we’re being reasonable, our intuitions should probably push us in the opposite direction. Fertility clients and their future children are shielded in some ways from some of the worse aspects of accidental pregnancy. Clients of surrogates have enough money to pay for the service, so they’ve already jumped two hurdles on the path to baseline decent parenting: access to resources and wanting the kids in the first place.

Then I tried thinking through what else, other than children’s best interest, might make us think intervention in fertility decisions is justified.

One obvious variable is markets. Money changing hands seems to make our moral radar go off, even if, as in the case of surrogacy, women are only being reimbursed for expenses (though due to payments for time and suffering, there seems to be some kind of payment taking place). But if it’s money changing hands, why? Why do we seem money as inherently corrupting? Especially in a case like surrogacy where money changing hands actually improves the odds of getting decent parents.

Perhaps the relevant variable is technology, but then what is it about fertility technology that makes us want to regulate something we already do all the time? Fertility clinics are already regulated for safety and efficacy, so further regulation of the ends (rather than the means) of fertility clinics seem unjustified when we don’t regulate those ends in private people’s bedrooms.

If, as I suspect, the central variable is about money exchanging hands, what is it about monetary exchange that also seems to make us want to regulate something we already do all the time?

I can think of a few answers, but am willing to entertain more.

First, we see monetary interactions as having the possibility to corrupt relationships or exploit vulnerable populations. Women, in particular, may be vulnerable to financial incentives to use their bodies in ways that may not be best for them. I think there are legitimate concerns here, but in a system like the U.S. where surrogates are likely to be healthy middle class women, the exploitation card is harder to take seriously. This is more of an empirical question anyway. And so far, the little information we have on surrogates is that they do not see themselves as exploited, even in the developing worldwhere the risk of exploitation is highest. But there is a strong tendency in modern culture to assume women’s choices are not freely made and female vulnerability continues to be an excuse for interfering in a wide range of women’s choices.

Second, maybe we see monetary interactions as commodifying something that is natural or should come from God or that has inherent dignity. This is the Leon Kass argument, and I think it is ultimately problematic, especially in the case of surrogacy. There’s nothing inherently dignified in getting pregnant, just as there is nothing inherently undignified about infertility. Women who can get pregnant easily are worth no more or no less than those who require assistance, and their babies are equally worthy. We don’t decry the money spent on IVF, why should we decry the money spent to support surrogates? The dignity argument seems like an odd combination of our desire that pregnancy occur naturally combined with our desire that if it can’t at the very least no one should get paid for it. Neither of these desires make a lot of moral sense. The idea of the dignity of a “natural” pregnancy in this case seems like a mere extension of the naturalistic fallacy, that pregnancies that happen without intervention are more worthy of respect than pregnancies that require assistance, especially those that require another woman’s womb. (Brennan and Jaworski reject the commodification shibboleth in their book Markets Without Limits, so surrogacy would seem to be a logical extension of their thoughts there.)

Certainly in Melissa Cook’s case, one would have liked to see better screening of potential clients by the clinic and maybe better reading comprehension on the part of the surrogate involved. And my discussion here ignores real moral questions about whether a surrogate can be forced to abort a fetus she is carrying for someone else. None of this means that surrogacy is a slam dunk moral case. But there’s nothing obviously different from a case of accidental pregnancy that would require more state intervention than we provide there. And various states have already solved these problems effectively through case law that commonsensically protects surrogates while reaffirming the parenthood of the people who hire them, California most notably. So cases like Cook’s are extremely rare, which again would seem to undermine any calls for further regulation.

So what’s up? Are there other aspects of this that I’m missing? Are there legitimate reasons to regulate surrogacy, apart from basic safety regulations (assuming even these are necessary)? It is just the newness of the technology? Or the combined punch of technology and markets together?  Or maybe surrogacy is just one example of a situation in which we need to let go of some of our gut moral intuitions and recognize that in the world of markets and fertility (and maybe lots of others) such intuitions may be wrong more often than they’re right.

Note: Thanks to Andrew Jason Cohen and Steve Horwitz for looking over a draft of this and providing some thoughtful suggestions.

*This article was previously published on Bleeding Heart Libertarians