(The following essay was written by Gingerbread Witch in 2006. It is being posted in light of recent Victorian law reforms. Gingerbread Witch is happy for it to be viewed and shared, however, anyone seeking to reproduce it as their own work shall face the full extent of her wrath).
Introduction
Throughout history sexuality and reproduction have often been subject to paternalistic regulation. The common ideal in Western cultures is that reproduction will occur when a man and a woman who are married have one or more biological children. If for any reason, such as infertility, marital status or sexual orientation, reproductive practices deviate from this ideal it is often argued that such practices should be regulated against to preserve ‘the family’. Surrogacy provides infertile couples, singles and gay couples with the opportunity to raise children. Australia’s laws surrounding surrogacy are complex and paternalistic, and where surrogacy is allowed it is allowed only to occur in very specific circumstances and only in altruistic arrangements. Commercial surrogacy is illegal in all Australian states.
When should individual rights relating to sexuality and reproduction be regulated against?
Should surrogacy be legal, and if so how should the practice be regulated? In this essay, I will argue that all forms of surrogacy should be legal and that rather than being influenced by moral views, regulation should only occur to prevent harm and should be informed by available evidence and experiences relating to surrogacy. I will provide an overview of how surrogacy came to be understood and practiced as it is today. I will then offer a brief outline of the debate about the regulation of surrogacy. Finally, I will outline the arguments authors who have discussed the issues of prostitution, family, infertility, gender and sexuality to attempt to draw parallels between their arguments and surrogacy.
What is Surrogacy?
Advances in the development of fertility treatments, such as IVF and artificial insemination, over last thirty or so years have led to many debates in societies around the world about how the use and further development of such treatments ought to be regulated. This essentially signifies a debate about the regulation of reproductive rights and autonomy. Surrogacy has been amongst the forms of reproduction that has attracted these kinds of debates, yet surrogacy can hardly be thought of as a reproductive technology in the same way that one would think of IVF as a reproductive technology, as it is quite likely that surrogacy has existed throughout history. Several references to surrogate-like practices can be found in the Bible and in the histories of various cultures (Blyth & Farrand 2005).
Surrogate arrangements can vary widely. In it’s most basic form, surrogacy means that a woman agrees to conceive and carry a child with the intention that she will give up the child at birth to be raised by the commissioning person or couple. Perhaps the reason for the inclusion of surrogacy in the wider debate about reproductive rights is that reproductive technologies have meant that surrogacy can now be accomplished in a wider variety of ways, and has perhaps become more common.
In it’s earliest forms (and undoubtedly even today in some cases) conception within a surrogacy arrangement would have been most commonly achieved through sexual intercourse.
Around the turn of the twentieth century the first modern reproductive technology, artificial insemination, was developed (though it quite possibly could have been practiced earlier) (Blyth & Farrand 2005). Artificial insemination is where the so-called ‘turkey baster baby’ came from (much in the way that IVF created the ‘test tube baby’). For surrogacy, this meant that sperm could be introduced into the surrogate mothers vagina by some means other than sexual intercourse. The later development of IVF meant that conception could take place by fertilizing the egg with sperm outside the body and then injecting the zygote into a woman’s womb (HRCF 2004).
In any case, when the egg used in conception originates from the surrogate mother, it is often referred to a traditional surrogacy. When the egg originates from a source other than the surrogate mother it is called gestational surrogacy (HRCF 2004). Despite the development of IVF, many surrogate mothers continue to conceive via artificial insemination using the sperm of either a sperm donor or an intended father. This can take place either in a private home or in a medical clinic. In this kind of arrangement, the egg obviously comes from the surrogate mother herself. In an IVF arrangement, the egg can either be that of the surrogate mother, an egg-donor or an intended mother, with the sperm being that of a sperm donor or an intended father. This leads to a wide range of possibilities about how a child might be conceived in a surrogacy arrangement as well as the number of people involved in such conceptions.
Commercial Surrogacy: Compensation or Exploitation?
As if all of these issues weren’t enough to consider, there is yet another ingredient added to the surrogacy debate mixture that looks a little funny standing next to the above noted issues. That is, the often made distinction of commercial surrogacy versus altruistic surrogacy. Where discussion about other aspects of the practice tend to revolve around methods, this aspect revolves around the compensation of the surrogate mother for carrying the child. In other words, the distinction between altruistic and commercial surrogacy do not represent two separate forms of surrogacy in the way that gestational and traditional surrogacy do.
Commercial Surrogacy simply means that the surrogate mother is paid for her services in carrying the child. Altruistic surrogacy occurs when there is no money paid to the surrogate mother. From the outset, I’d like to make it clear that those are the main differences between the two forms, yet there are often grey areas to be found in any given case. Surrogate mothers who are paid for their services, may often have altruistic reasons as well which are equal factors in their decisions to become surrogates (Beckman & Ciccarelli 2005). Likewise, surrogate mothers who are defined as ‘altruistic’ may often receive some level of compensation (even if only for medical expenses) presenting commercial elements to the arrangement (Stuhmcke 1996).
The Australian Legislative Landscape
Commercial surrogacy has become a rare yet hardly unheard of practice in the United States, where in many states, it is not a criminal offense. In Australia, altruistic surrogacy is legal, though in a highly complex way, in most states, and commercial surrogacy is criminalised in all states. This has meant that Australian’s who wish to access surrogacy services may have to travel overseas to access commercial surrogacy or interstate to access altruistic surrogacy depending on the legislation in the state where they live. For example, in Victoria altruistic surrogacy is legal, however only if both the surrogate mother and one of the intended parents are infertile. After the recent surrogacy birth of the daughter of Victorian Labor MP Stephen Conroy and his wife Paula Benson, there has been a revival of the debate for uniform, or at very least sensical legislation for surrogacy in Australia (Dunlevy 2006).
While there has been some support for reforming surrogacy legislation across Australia, commercial surrogacy is condemned with vigor by many legislatures along with many media commentators and some interest groups (see for example Nader 2006; VLRC 2005; ACTLRC 2003). This points to an interesting contradiction in the debate. Because some Victorian’s have to travel interstate to access altruistic surrogacy, there is a possibility that uniform legislation will be developed across the country. However, the fact that some Australian’s have to travel overseas to access commercial surrogacy does not appear to warrant it the same consideration. I guess we’ll have to wait for a politician to do it first.
The Australian Capital Territory Law Reform Commission (ACTLRC) (2003) has argued that commercial surrogacy should be prohibited, while altruistic surrogacy should be allowed. The report noted that their stance on prohibition of commercial arrangements was not based on the fact that a participant had been paid, but on the chance of exploitation. However, earlier in the report, they recognised that exploitation can occur in any human relationship, as well as within altruistic agreements, and that;
…the days when a paternalistic state would readily intervene to prevent women from making decisions due to the fear that they might be unable to cope with the practical and emotional implications of them are long gone.
However, the ACTLRC (2003) was concerned that in the case of commercial surrogacy, the exploitees may be either desperate commissioning couples coerced into paying excessive sums of money when they are emotionally vulnerable, or ‘young women who were addicted to drugs or gambling or who were simply poor’ when they are financially vulnerable. This points to some judgemental assumptions on the part of the ACTLRC, about surrogate mothers who seek compensation for their services. In any case, the ACTLRC offers no evidence that these concerns are credible enough to criminalise commercial surrogacy.
The ACTLRC (2003) was also concerned that, in commercial arrangements, the parties would be more likely to be strangers, and that this may lead to problems for surrogate mother when it came time to give the baby up. Another concern was that ‘the fact that the children have been born as a consequence of commercial alternate parent agreements might cause unfamiliar complications’ in custody disputes. Finally, the Commission was concerned commercial agreements might open up the possibility that a surrogate might be payed an additional fee, upon birth, which would lure here into giving up her child were she to show a sign of wishing not to. While these are important factors to consider when talking about the regulation of surrogacy, the ACTLRC do not consider them thoroughly enough, effectively placing these issues in the too hard basket.
While in many areas the ACTLRC’s (2003) views were amongst the most balanced and thoughtful views regarding surrogacy in Australian law (by arguing that access to surrogacy should not be based on discriminatory criteria such as marital status or sexual orientation), they became less thorough and convincing when discussing commercial surrogacy. Much of their reasoning for not endorsing decriminalisation of commercial arrangements in Australia was similar to other arguments against surrogacy in general.
Gender, Family and Work
It has been noted that debates about surrogacy in general result in unlikely alliances (Ciccarelli & Beckman 2005). For example many feminists, together with moral conservatives, oppose surrogacy, but for different reasons. Where some feminists argue that surrogacy reinforces traditional gender roles or traditional family forms, moral conservatives argue that surrogacy defies traditional gender roles and poses a threat to traditional family formation. Both groups argue that surrogacy arrangements will have a negative impact on the children who result from surrogacy. Both groups also express high levels of concern that a surrogate mother may find herself unable or unwilling to separate from the child at birth (Beckman & Ciccarelli 2005).
Many responses to surrogacy reflect the paranoid fear that surrogacy is a threat to the ‘traditional’ or ‘nuclear’ family model. The idea that the family is ‘in crisis’ has long been used to justify arguments for the regulation of sexuality and reproduction in Australia. Specifically, promiscuity, the use of contraceptives, abortion, women’s participation in paid work, their use of paid child care, gay liberation, divorce and later the development of reproductive technologies were all issues over which moral conservatives objected to based on the threat such practices posed to ‘the family’ (Gilding 1991 pp. 121-130). Gilding (1991) suggests that these so-called threats were in fact not threats at all, but indications that that the family the family was doing perhaps the only thing it has ever consistently done, changing (pp. 131-32). He contends that ‘there is nothing natural about the family’ (p. 132).
Changes in the ways that we understand the family reflect a shift in social values to a greater respect for the autonomy and biography of the individual, yet the confusion heightens as these biographies become broader and we are presented with the possibilities and questions that flow from them (Beck-Gernsheim 2002 pp. 6-7). Beck-Gernsheim (2002) suggests that at the heart confusion surrounding the family lies a fluid truth that cannot be grasped by a simple or single model- this is the reality that we are gradually expanding once ‘narrow ways of living’, increasingly motivated by autonomy and choice, while at the same time being faced with the new-burdens of self along with the sometimes painful requirement to negotiate our selves with the expectations our community. She explains that ‘whereas there used to be many exceptions but also impressively solid rules it is now in many respects no longer clear what is the exception and what is the rule’ she further notes that ‘whereas variety used to depend mainly on external circumstance, it today depends mostly upon people’s own choices’ (pp. 13-15).
It is important to remember that a moral position, even if it is a position shared by the majority, can not form an adequate basis for state regulation of a practice on its own.
Blackford (2003) argues that when it comes to the personal lives of individual citizens and the way they choose to conduct their lives, such as their ‘ability to express themselves freely, have consenting sexual relationships, and make reproductive decisions, the state permits freedom of choice unless a compelling reason can be found to do otherwise’. This view supports the legalisation of all forms of surrogacy with appropriate regulation in place that will minimize potential harmful impacts (Blackford 2003).
Moral arguments, even if the majority of citizens support them, are not enough to place limitations on the liberties of minority citizens (Blackford 2003). Blackford (2003) contends that an individual’s ability to make choices can only be justifiably limited or taken away, when they are found to be extremely harmful to society or another individual. He notes that despite ‘the frequent attacks on surrogacy, from both Right and Left, a liberal society places at least the main burden of proof on those who argue that particular conduct should be suppressed by the state’.
Blackford (2003) also claims that despite the arguments of those who claim that surrogacy is immoral, harmful and should be illegal, there are actually many others who argue that surrogacy has the capacity to be a positive practice. The benefits noted by Blackford include the options which surrogacy presents to infertile couples, as well as to single people or gay couples, thus enabling the creation of non-traditional families.
Blackford (2003) argues that those who claim that surrogacy will harm the children who eventuate from the practice are largely speculative and lacking in evidence. Thus, such claims do not provide a sound case for legislative prohibition. Nor, he claims, do the concerns of conservatives that surrogacy will undermine the traditional family model. He notes that many different means of family formation are now accepted in our society, and some further argument would need to be put as to why the state should use its coercive power to attempt to reverse this or make a special exception in the case of surrogacy’.
The idea that a child’s well being will be adversely affected by the nature of his or her conception is another argument often asserted by those who oppose surrogacy. Others, who oppose only commercial surrogacy often use a similar arguments, claiming that a child will be affected by the ‘price paid’ for his or her life. Indeed this is a moral argument for which there is no compelling evidence. While there is not a lot of empirical evidence about this in general, what little evidence is available suggests that this is a false assumption and that children who result from surrogacy are thus far known to adjust as well as children resulting from other forms of reproduction (see for example Golombok, Jadva, Lycett, MacCallum & Murray 2006).
A concern often cited is that surrogate mothers will have incredible difficulty giving the child they have carried over to the commissioning parents at birth (van Zyl & van Niekerk 2000; Anderson 1991). While there have been cases (such as the baby M case) that this has happened, most available evidence does not support that this is a widespread aspect of surrogacy. Beckman & Ciccarelli (2005) have noted that while surrogates often report a few hiccups in the process, or even minor difficulties straight after birth, they are satisfied with their decision to be surrogate mothers.
Anderson (1990) has argued that commercial surrogacy is ‘baby selling’, that it will result in the reproductive capacity of poor women being exploited by wealthier people or that the well-being of the children who result from such arrangements will put at risk (pp. 77-81). However, as noted by Blackford (2003) the assertion that surrogacy is ‘baby selling’ is ‘not correct, either technically or morally. Babies cannot be sold, because they are never property’.
Anderson (1990) has argued that surrogacy, particularly commercial surrogacy, should be criminalised. She believes that commercial surrogacy commodifies women’s work ‘the work of bring forth children into the world’ (p. 80). She argues that pregnancy is partly a social process during which social norms encourage a pregnant woman to bond with her unborn child, but that surrogacy contracts undermine this norm and encourage women to repress this aspect of pregnancy (p. 80). Anderson believes that commercial surrogacy contracts should be criminalised on the grounds that they are exploitative to women and children. She claims that the practice of commercial surrogacy reduces women and children to ‘objects of use’ (p.92). At very least, Anderson suggests that a surrogate mother should not be forced to give up her child (p. 87).
Borrowing from the union movement’s assertion that labour is not commodity, Anderson (1990), in the title of this article and in her conclusion supports her argument that commercial surrogacy should be criminalised because ‘women’s labor is not a commodity’ (p, 92), yet she fails to reflect the meaning behind that idea. While the union movement may value that labour is not a commodity it does not contend that this means workers should not be payed for the work they perform, or that paid work should be criminalised! Anderson’s argument does not reflect the notion that women’s labour is not a commodity; it reflects the idea that women should not be paid for what is traditionally known as women’s work. This idea has been around for a long time, and fits the idea that only men’s work is worthy of compensation, thus implying that in order for a woman to be payed, she must participate in men’s work, that is work performed in ‘public’ rather than in ‘private’. Thus, it makes sense to bring up prostitution in this discussion, as it also raises similar arguments.
Many of the arguments made for the criminalisation of prostitution (which are very similar to the arguments made for the criminalisation of commercial surrogacy) are not enough to justify legislative prohibition of prostitution. Nussbaum (1999) argues that taking money for work we do with our bodies is acceptable and reminds us that almost everyone does it (p. 276). She views criminalisation of prostitution as being more dangerous and harmful to prostitutes than prostitution itself, as it gives women, who already have very few options, even less options, and forces them to work in conditions where their safety and health is put at increased risk, and to do their jobs in a society that views them as criminals (pp. 288-294).
Nussbaum (1999) believes that the genuine cause of the stigmatisation of prostitution has more to do with class and gender stereotypes. She explains that historically there were certain types of services, skills or talents for which it was inappropriate to expect payment. These were generally activities that involved a lot of thought or spiritual reflection (i.e. teaching, art, performance). This view was based on the aristocratic belief that ‘those with inherited land wealth can perform these activities without stigma [as there is not a need for them to make money-the cause of stigma], and others can not’ (pp. 278-280). This, together with widely held ideas that women were inferior to men, that their sexuality should thus be controlled by men, that their bodies should be covered up and that their work should be conducted strictly in the private realm, points to the long history of class and gender stereotypes which, in many ways, remain living when we criminalise prostitution (Nussbaum 1999 p. 280). As noted by Nussbaum (1999) when ‘we consider our views about sexual and reproductive services, then we must be on our guard against two types of irrationality: aristocratic class prejudice and fear of the body and its passions’ (p. 280).
Similarly to Nussbaum, Sorensen (1991) argues that the criminalisation of surrogacy essentially criminalises women ‘just as other ways in which women use their bodies have been criminalised’. She notes that surrogacy involves women who are making choices about the ways they use their bodies. She further explains that to criminalise women for participating in surrogate motherhood, or ‘to make moral judgements about them, is either to punish them for their poverty, or to make a very patronising assessment of their ability to make choices’.
Arguments that contend that commercial surrogacy will result in poor women being exploited assume that surrogate mothers who receive payment for their services will be poor. Most people work for money, but this does not mean that people who work are poor. Indeed, fair payment for work, even where it is a job that a person enjoys doing, intends to reduce exploitation in the (no pun intended) labour market. Indeed, some people in ‘unskilled’ labour are paid unfairly, thus increasing their level of exploitation, while others in similar ‘unskilled labour’ are paid fairly, and perform their work in good conditions. We would not conclude that the latter are exploited, or even poor. Insofar that Nussbaum’s arguments relating to prostitution offer the basis for the argument that the state should not intervene on women’s choices to exchange payment for their sexual or reproductive services, it must be remembered that surrogacy is different in that surrogate mothers often find meaning and positive fulfillment in their experiences of surrogacy. Nussbaum’s arguments would apply more heavily to surrogates who are highly disadvantaged, and for whom the altruistic incentive is low, not that these two factors must exist together.
Conclusion
I have shown that arguments supporting the criminalisation or highly paternalistic regulation of surrogacy tend to rely heavily on various moral positions (and that indeed sometimes these positions contradict one another). Some of these positions maintain that surrogacy is a threat to the family while others contend that surrogacy reinforces patriarchal structures and gender roles. Moral positions never provide a sound justification for prohibiting individuals to flourish in whatever way they so choose unless such choices inflict on the rights of other individuals to do so or present a pervasive threat of harm. Surrogacy, whether commercial or altruistic, does neither and should therefore be decriminalised in Australia. The development of quality regulation of surrogacy should be heavily guided by available evidence and experiences of those who’s voices are thus far largely missing from the debate; surrogate mothers, parents and where possible the children who result from surrogacy arrangements.
References
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