Surrogate Tourism and Reproductive Rights

Abstract

Commercial surrogacy arrangements now cross borders; this paper aims to reevaluate the traditional moral concerns regarding the practice against the added ethical dimension of global injustice. I begin by considering the claim that global surrogacy serves to satisfy the positive reproductive rights of infertile first-world women. I then go on to consider three powerful challenges to this claim. The first holds that commercial surrogacy involves the commodification of a good that should not be valued in market terms, the second that it involves the exploitation of the labor of disadvantaged women, and the third that it depends on the illegitimate privileging of positive rights over negative rights. I reject the first of these challenges and argue that global surrogacy arrangements are indeed exploitative on the dual basis of what I call intracontractual injustice and intercontractual coercion. The latter, I contend, depends on a preexisting negative rights violation, which cannot be permitted for the sake of satisfying another's positive reproductive entitlement. I conclude not in favor of a global ban but with suggestions on how developing nations that permit commercial surrogacy might better protect the negative reproductive rights of their female citizens, thereby making them less vulnerable to exploitation.A growing trend in medical tourism threatens the battle for global gender justice, namely that of developed-world couples contracting Indian surrogates to gestate their children. The practice of global commercial surrogacy might be defended on the grounds that, in countries where surrogacy-for-pay is illegal, the reproductive rights of infertile women are being violated as they are being denied access to the means by which to have genetically related offspring. The implication is problematic, however, insofar as satisfying one woman's positive right of access necessarily involves the use of another woman's body and reproductive labor. The fact that the surrogates in question are poor women from the global south with limited employment options aggravates the issue. We thus face a conflict of rights magnified by border crossings in a condition of global injustice: in satisfying a developed-world woman's reproductive right to access surrogacy as a solution to the problem of infertility, are not developing-world women's rights to make reproductive decisions free of coercion being violated?

Hidden from view: Canadian gestational surrogacy practices and outcomes, 2001-2012

“…51,52 While Canada's AR registry tells us about gestational surrogacy, little is known about other surrogacy practices. This study lacks the insights that would be gained by having information on surrogate and intended parent characteristics, and foreign and traditional surrogacy practices, nonetheless its findings lend weight to the demands made by legal experts, [15][16][17][18]29,38,54 ethicists 19,52 and intended parents [11][12][13] for a re-examination of the legal status of surrogacy arrangements, revision to provincial parentage laws, and review of federal AHR Act surrogacy provisions.…”

“…Lack of data, 15 social stigma associated with infertility, 16 perception of legal uncertainty about surrogacy, [15][16][17] and reproductive tourism 18,19 have been cited as factors contributing to a shortage of reliable and comprehensive information about Canada's surrogacy practices. This paper seeks to fill this knowledge gap, and in so doing, it raises several troubling questions about the fertility treatments gestational surrogates receive.…”

Caring Relationships: Commercial Surrogacy and the Ethical Relevance of the Other

“…Indeed, the financial incentive for women in the "global south" to enter into a surrogacy arrangement is extremely high. A woman who works as a surrogate can assure the livelihood of her family for five years; furthermore, she is able to offer her own children a better future by sending them to school (Karandikar et al 2014;Panitch 2013). Besides the status of financial compensation in surrogacy arrangements, other conditions are problematic as well.…”

Transnational Surrogacy and the Justice Condition of Nonexploitation

“…This concern should play an equally large role in our normative assessments of transnational exploitation (Panitch 2013a). I have argued elsewhere that the share of gains enjoyed by gestational LMIC surrogates is unfair relative to the benefits enjoyed by less vulnerable surrogates in the developed world, and that no account of exploitation in TGS is sufficient that does not depend on an intertransactional assessment of justice (Panitch 2013b;2013c).…”

“…To do so it must demand the performance of a series of comparative analyses: first, a comparison of the surrogate's overall benefits relative to her burdens; second, a comparison of the surrogate's overall gains relative to the share of overall gains enjoyed by her co-transactor; and finally, a comparison of the distribution of benefits enjoyed by the LMIC surrogate relative to those enjoyed by a non-LMIC surrogate. It is not imperative from the point of view of justice that strict identity be achieved in the distribution of gains within or across arrangements, and it is very likely that the educational, regulatory, and empowerment initiatives Kirby proposes would go a long way toward improving the ability of surrogates and the members of their social group to demand what they are rightly owed (Panitch 2013b;2013c). But what I hope to have conveyed here is that in order to have us properly identify the injustice in exploitative TGS arrangements, Kirby's heuristic requires an additional (or alternative) condition that would have us engage in both intra and inter comparative assessments thereof.…”