Contract pregnancy involves a contractual agreement between a commissioning client and a woman who carries the client’s child as a surrogate. In 1978, the first “test tube baby” was born. The egg and sperm of a married couple were mixed outside the body and a successful fertilization took place. The fertilized egg was implanted in the wife who carried it through gestation and delivery. This process of in vitro fertilization was a watershed moment for new reproductive methods or “assisted reproduction technologies” (ARTs). These ARTs allowed married, unmarried, and same-sex couples to have children regardless of their physical capacity or willingness to conceive and carry a child to term. An estimated 30.2 to 120.6 million women between the ages of 20 and 46 are unable to conceive. Of these, 12 to 90.4 million are likely to seek medical assistance in order to have a child.
Commercial surrogacy, which sometimes goes by the names of “reproductive tourism,” “fertility tourism,” or “reproductive outsourcing,” is a form of contract pregnancy that has grown into a highly profitable international industrial market. It involves a contractual agreement, typically arranged by a third party or broker, between the client and the surrogate. The client receives parental rights over a child which may or may not be genetically related. In exchange, the surrogate receives a monetary sum which covers cost of care and a fee for her labors.
In today’s globalized marketplace, it is increasingly common for clients from developed countries to enter into contracts with brokers and surrogates from developing countries. The surrogate industry in India is a prime market in this respect. India’s surrogate industry, which was legalized in 2002 generates an estimated $445 million annually. Surrogate women are typically poor, uneducated women with families of their own. Indeed, there are two reasons why clients from developed countries seek out surrogates from developing countries. First, it is cheaper. Second, whereas in developed countries surrogates enjoy legal rights to appeal even in cases where they have given up those rights via contract, poor women in developing countries lack legal recourse and contracts are not subject to regulatory oversight. Though some developed countries prohibit their female citizens from acting as surrogates for ethical reasons, such as France whose government decries the practice on the grounds that “the human body is not lent out, is not rented out, and is not sold,” globalization has meant that such prohibitions, which are relatively rare, are not slowing down the practice of commercial surrogacy on the international scale.
Is commercial surrogacy ethical? It is often claimed to be by Libertarian-oriented market theorists arguing from a more or less utilitarian perspective. Then, of course, there are always the emotivist, knee-jerk reactionaries. However, there are at least three sound ethical frameworks that can be brought against this practice. They are as follows:
1.) Feminist: In her book, Why Some Things Should not be for Sale: The Moral Limits of Markets, Debra Satz argues that “contract pregnancy places women’s bodies under the control of others and serves to perpetuate gender inequality” (133).
2.) Deontological: The second formulation of the categorical imperative states that human beings must always be treated as and ends and never as a means.
3.) Anthropological: ERD 42 states: “Because of the dignity of the child and of marriage, and because of the uniqueness of the mother – child relationship, participation in contracts or arrangements for surrogate motherhood is not permitted. Moreover, the commercialization of such surrogacy denigrates the dignity of women, especially the poor.”
Another argument can be drawn from Blessed Pope John Paul II’s mediations on the Blessed Virgin Mary: “At the moment of the annunciation, by responding with her fiat, Mary conceived a man who was the Son of God, of one substance with the Father. Therefore, she is truly the Mother of God, because motherhood concerns the whole person, not just the body, nor even just human nature.” And this fiat is not a mere instrument. Rather, “through her response of faith Mary exercises her free will and thus fully shares with her personal and feminine ‘I’ in the event of the Incarnation” (Mulieris Dignitatem II.4).
When I was discussing the issue of commercial surrogacy in one of my classes a student raised his hand and said that all of this would no longer be an issue in ten or twenty years, because, by that time, technology will make it such that they will be able to grow the babies in machines. What does this say about how surrogates are currently viewed? Their motherhood is reduced to their bodies, and their bodies are reduced to machines.
Contemplation of the Blessed Virgin and her fiat reminds us that “motherhood concerns the whole person, not just the body, nor even the human nature.” John Paul II also remarked that reflection upon the person of Mary should invite consideration of all “women who have been wronged and exploited” (MD VI.19). The women who have been wronged by the industry of commercial surrogacy belong in this group. Their dignity is routinely violated by those who have the financial coercive power to do so. When contemplating Mary, we should contemplate them.