Commercial Surrogacy

As a case study of Anderson’s view about commodifying shared goods, we’ll look what she says about commercial surrogacy.

We’ll look at a video of one very famous example of commercial surrogacy: the case of Baby M.

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There will be an in-class activity right after the video.

A Case Study: Commercial Surrogacy

In “Is Women’s Labor a Commodity?”, Anderson examines one particular example of commodifying what (probably?) should not be commodified: women’s labor.

Some background:

(Commercial) Surrogacy has become a quite familiar concept for most of us now; we certainly know quite a few celebrities who had their children through surrogacy!

But what made commercial surrogacy a popular issue was the Baby M case in 1988.


Exercise: The Baby M case

Baby M and the Question of Surrogacy

(if the hyperlink doesn’t work, copy & paste this link:

Watch the video first; then go to the course Blackboard page and click “3-3 In-class Activity” under the lecture video.

Click “Create thread” and fill in your answers; click “submit” at the end.

This should take about 5-7 minutes; come back to the lecture video after you submit your response.

Since this activity take place on a discussion forum, you’ll be able to see others’ responses & comment on them. (No need to comment on others’ responses if you don’t want to.)

The Baby M Case

In 1985 New Jersey, Mary Beth Whitehead, entered into a contract with William Stern; for $10,000, Whitehead agreed to be inseminated with Stern’s sperm, carry the pregnancy to term and then yield parental rights to the Sterns.

But after the birth of a girl (”Baby M”), Whitehead had a change of heart.

She chose to forsake the $10,000 and keep the girl; Sterns sued.

The lower state court ruled in favor of the Sterns.

The Baby M Case

But in 1988, the New Jersey Supreme Court reversed that decision.

It invalidated the surrogacy contract itself as an affront to public policy, and called the intended payment “illegal, perhaps criminal, and potentially degrading to women.”

Nonetheless, the court gave custody to the Sterns, saying this was in the best interest of the child.

The situation has changed re: surrogacy after in vitro fertilization became available; nevertheless, this case ignited a public debate on commercial surrogacy and its morality/legal status.

Against Commercial Surrogacy

Anderson raises two points against commercial surrogacy:

Commercial surrogacy degrades children by treating them as if they are commodities.

By commodifying women’s labor, commercial surrogacy de-grades surrogate mothers.

Anderson uses her view about the commodifying shared goods to argue for these points.

Commercial Surrogacy & Children

Anderson: Commercial surrogacy requires us to understand parental rights as property rights.

In the context of parental relationship, the exercise of parental rights includes acts of promoting their shared life as a family and the shared interests of the parents and the child.

Promoting a shared life and shared interests as a family is inherently valuable; that’s why our society respects parental rights in a unique way.

Cf. X is inherently valuable vs. X is instrumentally valuable

Commercial Surrogacy & Children

But in the context of commercial surrogacy, the exercise of parental rights is to exercise one’s property rights over the child—the rights to use and dispose one’s property.

Using and disposing one’s property is not inherently valuable; it is merely instrumentally valuable.

Moreover, treating child as something that could be owned and used degrades child’s status as mere means.

Commercial Surrogacy & Children

One potential question:

“But the child is most likely to be raised in a loving home! So, from the viewpoint of child’s interests, there is no harm done.”

(Anderson) By engaging in this ”transfer,” all of the parties involved in this contract is expressing a certain attitude towards the child; this attitude undermines the norms of the parental love.

Another question:

“But the child is not being directly sold; the surrogate mother simply bears and gives birth to the child on behalf of the parent(s)!”

(Anderson) This causes another ethical problem for commercial surrogacy!

Commercial Surrogacy & Mother

Commercial surrogacy commodifies women’s work of bringing children into the world.

Anderson claims that this work is inherently valuable and is worthy of respect.

Commodifying women’s labor is to degrade this inherently valuable thing to a mere means.

Specifically, applying the norms of the market to women’s labor blocks women from taking the due respect in 3 ways.

Commercial Surrogacy & Mother

The norms of the market alienates the surrogate mother from whatever parental tie she may feel towards the child.

The norms of the market deny the surrogate mother the right to have and exercise her own perspective on pregnancy.

By exchanging the surrogate mother’s non-commercial motivation with commercial means, the norms of the market degrades the surrogate mother.

Can Commercial Surrogacy Be Ethical?

Anderson concludes that commercial surrogacy cannot be ethical since it commodifies what should not be commodified.

But maybe there are some ways to make commercial surrogacy ethical,

by giving the surrogate mother the option of keeping the child; or

by imposing stringent regulations on private surrogate agencies; or

by replacing private surrogate agencies with state-run arrangements.

Anderson: none of them can solve the problem of commercial surrogacy.

Can Commercial Surrogacy Be Ethical?

Giving the surrogate mother the option of keeping the child

Does not change the conditions of the contract; having such an option would only make agencies put more pressure on the surrogate mother.

(b) Imposing stringent regulations on private surrogate agencies

Realistically, it is hard to come up with regulations that could prevent all potential problems.

Moreover, if there are strict regulations on commercial surrogacy, it would be still difficult to determine whether the surrogate mother entered the contract by coercion/manipulation or not.

Can Commercial Surrogacy Be Ethical?

(c) Replacing private surrogate agencies with state-run arrangements

It does not matter that the state runs the practice; the basic conditions of commercial surrogacy still applies.

As long as the surrogate mother is being paid money for her labor, the norms of the market will degrade her labor and the mother herself.


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