More on the Downsides of Surrogacy

There’s something weird about the ebb and flow in the media attention to surrogacy.  You seem to get a blast of positive coverage and then, a few weeks later, a corresponding blast of negative coverage.  Right now we are clearly in negative territory, as this article nicely shows.       It’s about the black market for surrogacy that currently exists in China–and apparently exists on a pretty large scale.  (The article quotes an estimate of “well over 10,000 birth a year.”   That is a pretty huge number (though of course, China has an enormous population.)

No one could mistake this for a positive article.   As with most black market enterprises, black market surrogacy is rife with abuse and exploitation.   While the surrogates employed by one agency (Baby Plan) are (to my mind, anyway) surprisingly well-paid ($24,000), the conditions under which they operate seem nightmarish to me: 

the surrogate is installed in a private apartment with a full-time assistant. To make sure she does not get ideas about fleeing with the customer’s fetus, she is cut off from her family and receives daily visits from a psychological counselor

Perhaps the surroundings are comfortable, but it sounds pretty much like prison.   And I wonder (though it isn’t discussed) about what sort of decision-making authority the surrogate retains.   Could she, for example. decide to refuse certain medical procedures?  My guess is that the answer is “no.”    She is, as the article says “coddled but captive.”

[An aside here–I am wondering how the math works out.   The total cost is $240,000.   The surrogate gets $24K and it says the profit is also $24K.   That leaves $192,000 unaccounted for.   There are the expenses of housing the surrogate and her “assistant”, as well as the various medical procedures (which are arranged in Thailand, so there is travel) but I still wonder if the profit isn’t somewhat understated.   This is, as I say, just an aside.]

It seems to me that the whole set-up is surrogacy at its worst.   There’s no chance that there is a positive relationship between the intended parents and the surrogates.   There’s no question but that the surrogates are motivated solely by a need for money.   I’d be shocked if the intended parents planned to tell their children all about the manner of their conception and gestation.

Perhaps I don’t need to go no about this as it seems unlikely I’ll be flooded by people defending the practices described.   I think the real challenge, once you’ve digested the story, is figuring out what one should do about this.  The conditions are as they are in part because surrogacy is illegal and this is a black market.   So it doesn’t answer to say “surrogacy should be banned.”   It already is banned.

I will offer two suggestions, one of which may seem somewhat fanciful, but it’s to make a point.  Fanciful first:   Suppose we all agreed that as a matter of law, a woman who gives birth is the recognized legal mother of a child.   And suppose, too, that culture is influenced by law, so we actually started to think this was true.   I’m not so naïve as to think that this will really change anything–the surrogate can still be forced to give up the child.   But if you thought–just for a few moments– that the surrogate was the mother, these arrangements would look quite different.

I suppose I have two points here.  One is that giving the surrogate more power–and giving her legal parenthood does that–might change how things work.   No guarantees, I know.   But worth a moment’s thought?   The second is that it is the deep-seated belief that the genetic parents are the “real” parents that makes this form of surrogacy at all palatable.  From that perspective–that genetics are what is really important–the surrogate is little more than a vessel and there’s no need for any real interest in her.   This is, in fact, one of my objections to over-reliance on genetics in the determination of parentage.

My second suggestion is more pragmatic–and I’m sure some of you will say way TOO pragmatic.   The way to control these abuses is to legalize surrogacy and regulate it.  I don’t think you can hope to abolish surrogacy by criminalization.  It’s too easy for people to evade the law.  And then you have the black-market problem.   (This is hardly an original analysis.   You see similar arguments in many areas.)

What one can do is regulate surrogacy, mandating particular terms of the agreements (like the surrogate gets to control medical care) and the like.   Again, this isn’t a cure-all.   People can always evade regulation.   But if you gave people a legal option, I think a lot of people might elect to go that route and, overall, I’d say that would be better.



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