essay on ethics of surrogacy

An official website of the United States government

The .gov means it’s official. Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.

The site is secure. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.

• Publications
• Account settings

Preview improvements coming to the PMC website in October 2024. Learn More or Try it out now .

• Advanced Search
• Journal List
• Indian J Community Med
• v.37(4); Oct-Dec 2012

Surrogacy: Ethical and Legal Issues

Pikee saxena.

Department of Obstetrics and Gynecology, Lady Hardinge Medical College and Shrimati Sucheta Kriplani Hospital, New Delhi, India

Archana Mishra

Sonia malik.

1 Department of Obstetrics and Gynecology, Infertility and IVF, South End Fertility and IVF Centre, Holy Angels Hospital, Basant Lok, Vasant Vihar, New Delhi, India

Surrogacy refers to a contract in which a woman carries a pregnancy “for” another couple. Number of infertile couples from all over the World approach India where commercial surrogacy is legal. Although this arrangement appears to be beneficial for all parties concerned,there are certain delicate issues which need to be addressed through carefully framed laws in order to protect the rights of the surrogate mother and the intended parents.

The ever-rising prevalence of infertility world over has lead to advancement of assisted reproductive techniques (ART). Herein, surrogacy comes as an alternative when the infertile woman or couple is not able to reproduce. Surrogacy is an arrangement where a surrogate mother bears and delivers a child for another couple or person. In gestational surrogacy, an embryo, which is fertilized by in vitro fertilization, is implanted into the uterus of the surrogate mother who carries and delivers the baby. In traditional surrogacy, the surrogate mother is impregnated with the sperms of the intended father artificially, thus making her both genetic and gestational mother. Surrogacy may be commercial or altruistic, depending upon whether the surrogate receives financial reward for her pregnancy.

Commercial surrogacy is legal in India,( 1 ) Ukraine, and California while it is illegal in England, many states of United States, and in Australia, which recognize only altruistic surrogacy. In contrast, countries like Germany, Sweden, Norway, and Italy do not recognize any surrogacy agreements. India has become a favorite destination of fertility tourism. Each year, couples from abroad are attracted to India by so-called surrogacy agencies because cost of the whole procedure in India is as less as one third of what it is in United States and United Kingdom (10-20 lakhs).

Is Surrogacy Profitable for All?

At a glance, surrogacy seems like an attractive alternative as a poor surrogate mother gets very much needed money, an infertile couple gets their long-desired biologically related baby and the country earns foreign currency, but the real picture reveals the bitter truth. Due to lack of proper legislation, both surrogate mothers and intended parents are somehow exploited and the profit is earned by middlemen and commercial agencies. There is no transparency in the whole system, and the chance of getting involved in legal problems is there due to unpredictable regulations governing surrogacy in India.

Although in 2005, ICMR issued guidelines for accreditation, supervision, and regulation of ART clinics in India, these guidelines are repeatedly violated.( 2 ) Frustration of cross border childless couples is easily understandable who not only have to cope up with language barrier, but sometimes have to fight a long legal battle to get their child. Even if everything goes well, they have to stay in India for 2-3 months for completion of formalities after the birth of baby. The cross border surrogacy leads to problems in citizenship, nationality, motherhood, parentage, and rights of a child. There are occasions where children are denied nationality of the country of intended parents and this results in either a long legal battle like in case of the German couple with twin surrogate children or the Israeli gay couple who had to undergo DNA testing to establish parentage or have a bleak future in orphanage for the child. There are incidences where the child given to couple after surrogacy is not genetically related to them and in turn, is disowned by the intended parent and has to spend his life in an orphanage.( 3 )

If we look upon the problem of surrogate mothers, things are even worse and unethical. The poor, illiterate women of rural background are often persuaded in such deals by their spouse or middlemen for earning easy money. These women have no right on decision regarding their own body and life. In India, there is no provision of psychological screening or legal counseling, which is mandatory in USA. After recruitment by commercial agencies, these women are shifted into hostels for the whole duration of pregnancy on the pretext of taking antenatal care. The real motive is to guard them and to avoid any social stigma of being outcast by their community. These women spend the whole tenure of pregnancy worrying about their household and children. They are allowed to go out only for antenatal visits and are allowed to meet their family only on Sundays. The worst part is that in case of unfavorable outcome of pregnancy, they are unlikely to be paid, and there is no provision of insurance or post-pregnancy medical and psychiatric support for them. Rich career women who do not want to take the trouble of carrying their own pregnancy are resorting to hiring surrogate mothers. There are a number of moral and ethical issues regarding surrogacy, which has become more of a commercial racket, and there is an urgent need for framing and implementation of laws for the parents and the surrogate mother.( 4 )

Assisted reproductive technology legislation

The Indian government has drafted a legislation, earlier floated in 2008, finally framed as ART Regulation draft bill 2010. The bill is still pending with Government and has not been presented in the Parliament. The proposed law has taken consideration of various aspects including interests of intended parents and surrogate mothers. The proposed draft needs to be properly discussed, and its ethical and moral aspect should be widely debated by social, legal, medical personal, and the society before any law is framed.

The bill acknowledges surrogacy agreements and their legal enforceability.( 5 ) The surrogacy agreements are treated at par with other contracts under the Indian Contract Act 1872 and other laws applicable to these kinds of agreements. Both the couple/single parent and surrogate mother need to enter into a surrogacy agreement covering all issues, which would be legally enforceable. Some of the features of proposed bill are that an authority at national and state level should be constituted to register and regulate the I.V.F. clinics and A.R.T centers, and a forum should be created to file complaints for grievances against clinics and ART centers. The age of the surrogate mother should be 21-35 years, and she should not have delivered more than 5 times including her own children. Surrogate mother would not be allowed to undergo embryo transfer more than 3 times for the same couple. If the surrogate is a married woman, the consent of her spouse would be required before she may act as surrogate to prevent any legal or marital dispute. A surrogate should be screened for STD, communicable diseases and should not have received blood transfusion in last 6 month as these may have an adverse bearing on the pregnancy outcome. All the expenses including insurance of surrogate medical bill and other reasonable expenses related to pregnancy and childbirth should be borne by intended parents. A surrogacy contract should include life insurance cover for surrogate mother. The surrogate mother may also receive monetary compensation from the couple or individual as the case may be for agreeing to act as such surrogate. It is felt that to save poor surrogate mothers from exploitation, banks should directly deal with surrogate mother, and minimal remuneration to be paid to the surrogate mother should be fixed by law.

The surrogacy arrangement should also provide for financial support for the surrogate child in case the commissioning couple dies before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child so as to avoid injustice to the child. A surrogate mother should not have any parental rights over the child, and the birth certificate of the baby should bear the names of intended parents as parents in order to avoid any legal complications. Guidelines dealing with legitimacy of the child born through ART state that the child shall be presumed to be the legitimate child of the married/unmarried couple/single parent with all the attendant rights of parentage, support, and inheritance.

The ART clinics should not be allowed to advertise for surrogacy for its clients, and couples should directly seek facilities of ART Bank. The intended parents should be legally bound to accept the custody of the child/children irrespective of any abnormality in the child/children. Confidentially should always be maintained, and the right to privacy of the donor as well as surrogate mother should be protected. If a foreigner or NRI is seeking surrogacy, they should enter an agreement with written guarantee of citizenship for the child from their government, and they should also appoint a local guardian who would be legally responsible for taking care of the surrogate during and after the pregnancy till the child is delivered to the foreigner couple or reaches their country. Sex-selective surrogacy should be prohibited, and abortions should be governed by the Medical Termination of Pregnancy Act 1971.( 6 )

It seems ironical that people are engaging in the practice of surrogacy when nearly 12 million Indian children are orphans. Adoption of a child in India is a complicated and a lengthy procedure for those childless couples who want to give a home to these children. Even 60 years of Independence have not given a comprehensive adoption law applicable to all its citizens, irrespective of the religion or the country they live in as Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) or Overseas Citizens of India (OCIs). As a result, they resort to the options of IVF or surrogacy. The Guardian and Wards Act, 1890 permits Guardianship and not adoption. The Hindu Adoption and Maintenance Act, 1956 does not permit non-Hindus to adopt a Hindu child, and requirements of immigration after adoption have further hurdles.( 7 )

There is a strong need to modify and make the adoption procedure simple for all. This will bring down the rates of surrogacy. Altruistic and not commercial surrogacy should be promoted. Laws should be framed and implemented to cover the grey areas and to protect the rights of women and children.

Source of Support: Nil,

Conflict of Interest: None declared

Becoming a parent through surrogacy can have ethical challenges – but it is a positive experience for some

Assistant Professor of Practical Theology & Spiritual Care, Emory University

Disclosure statement

Danielle Tumminio Hansen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

View all partners

This article was updated on Jan. 10 2024 .

In her new book, actress Gabrielle Union became the latest celebrity to discuss her decision to become a parent via surrogacy . She joins the ranks of household names such as Neil Patrick Harris, Nicole Kidman, Kim Kardashian, all of whom have hired a surrogate to give birth to their future child.

The publicity Union generated about surrogacy reignited ethical questions about this controversial form of assisted reproduction that range from whether women should be able to sell their reproductive abilities to what it means to be a parent .

There is global disagreement about the ethics of surrogacy. Several countries have banned it, while others have limited its scope. In the United States, laws permitting surrogacy vary by state .

The legal range is due to ethical concerns, ranging from the potential exploitation of surrogates to worries that surrogacy negatively affects the life of the resulting child.

In the decade that I’ve been researching this form of assisted reproduction , I’ve discovered that surrogacy can be exploitative, but it can also be a positive experience when undertaken with appropriate societal support and when all participants practice mutual respect, kindness and empathy. At its best, it can also encourage people to adopt a more expansive view of what it means to be a family.

Myths and fears

One could argue that the concept of surrogacy dates back to a biblical story in the book of Genesis in which Sarah, the wife of Abraham, pleads with him to have children with the slave Hagar because of Sarah’s inability to conceive.

Fast forward to modern times, and surrogacy is now performed predominantly in high-priced in vitro fertilization centers in one of two ways. In “traditional surrogacy,” the fertilized egg belongs to the surrogate. In “gestational surrogacy,” which is more common today , the fertilized egg comes from either the intended mother or a donor. In both cases, that egg combines with a sperm to become an embryo that grows in the surrogate’s womb and not the intended mother’s.

Gestational surrogacy may be preferable because it allows intended mothers to maintain a genetic connection with their child. Others may prefer it because of fears that a surrogate could lay claim to the child with whom she had a biological connection .

The fear that a surrogate will try to steal or adopt a child is one of many legal and ethical fears surrounding surrogacy. In the 1980s, the Baby M Case in the United States attracted much media attention because it tapped into these fears. In this situation, the surrogate named Mary Beth Whitehead attempted to retain custody of the baby she birthed.

The case fueled a stereotype of surrogates as emotionally unstable, defying the reality that surrogates undergo psychological testing before participating in a procedure.

Documented instances of surrogates retaining children are rare. Research shows that surrogates often experience pregnancy and birth differently than they did with their own children . They also often see themselves as heroes or gift givers instead of mothers.

If the public perceives surrogates negatively, intended parents often fare no better. They are often categorized as selfish, desperate and filthy rich, especially when they choose surrogacy without a medical reason .

Those popular images of intended parents fail to account for the reproductive trauma many of them experience prior to turning to surrogacy. Psychologists have shown that the inability to start a family can be a form of reproductive trauma . The decision to hire a surrogate, then, is often the last option for parents who have tried everything else. What is seen as desperation, in other words, is actually, as I’ve proposed in my own research , an attempt to write a happy ending to the story of their reproductive lives.

Ethical concerns about surrogacy

It is true that this way of becoming a parent is expensive, at least in the United States, where use of the technology routinely costs over US$100,000 . The cost is so extreme because intended parents pay health care fees for both themselves and the surrogate, many of which aren’t covered by insurance.

They also have to pay legal fees, agency fees, and compensate the surrogate, which alone can range from $45,000 to $75,000 . Contrast that price tag to one in India prior to its ban on international surrogacy in 2015: Couples who traveled there could expect to spend between $15,000 to $20,000 in total for their surrogacy journey.

The extreme costs of surrogacy in the U.S. limits its availability to the wealthy and to high profile celebrities like Union, raising important ethical questions about whether this is an appropriate use of resources, especially given the possibility of adopting.

In addition to ethical questions about surrogacy’s relation to wealth, feminists are divided on how surrogacy affects women. Some feminists feel that surrogates have a right to choose what to do with their bodies . Others object to surrogacy on the grounds that systemic oppression drives women into surrogacy; or that it’s unethical for women to sell their bodies, arguing that it parallels prostitution .

Cases documented in India support these concerns. Investigative journalist Scott Carney found one prominent Indian surrogacy clinic where surrogates were kept in crowded bedrooms on restricted diets and forced to have caesarean sections in order to streamline the labor and delivery process.

Scholars also worry about surrogacy’s impact on children . Studies suggest that children of surrogates may struggle with their identity , especially if those children are not told of their origins .

Extensive research hasn’t been conducted with children of surrogates. Research by social scientists studying children born via egg and sperm donation largely mirrors the findings of adoption research: Children have questions about their identity, and answers to these questions are often most accessible when children have access to those individuals who are part of their birth story . Yet agencies and governments rarely regulate how surrogates, intended parents and children interact following the baby’s birth.

Finally, many religious groups, most prominently Roman Catholics , object to surrogacy because it results in the destruction of human embryos during IVF cycles and violates their theological conviction that life begins at conception . Roman Catholics encourage heterosexual couples who cannot procreate via intercourse to adopt as an alternative.

[ You’re smart and curious about the world. So are The Conversation’s authors and editors. You can read us daily by subscribing to our newsletter .]

The case for surrogacy

Such objections might lead to the conclusion that there is never a reason to hire a surrogate. But this might be too simplistic. Even with the documented struggles on the parts of both intended parents and surrogates, many are profoundly grateful for the technology.

Intended parents often feel surrogates are “ gifts from God ” who help them reach their dream of parenthood. Meanwhile, some surrogates believe their powers of procreation provide them with a unique opportunity to help others. Many surrogates see their ability to create life as a source of power, a profound act of altruism and part of their legacy.

When I spoke with a group of surrogates in Austin, Texas, while conducting research for my book, I found that their stories aligned with the findings of other researchers who discovered that many surrogates had positive experiences in which they experienced themselves as heroes . These women felt empowered because they helped infertile heterosexual couples and gay couples create families. Without surrogacy, these individuals would have no way to have a genetic connection with their children.

The surrogates acknowledged that sometimes intended parents could be difficult, that pregnancy and labor could be challenging, and that it could be confusing when a checkout clerk at the grocery store asked what they were planning to name the baby.

Becoming a parent through surrogacy can, as Union explains , be awkward and humbling, confusing and miraculous all at the same time.

But when surrogates and intended parents can act freely, out of a sense of religious calling and with the support of society , then there is the potential for them to discover that family is not just biological but also social and relational. In those encounters, many experience the technology as life-giving, both metaphorically and literally.

The Candler School of Theology at Emory University is a member of the Association of Theological Schools.

• Reproductive rights
• Business of IVF
• Ethical question
• Religion and society
• Seminaries and religious teaching
• The Association of Theological Schools
• Interdependence
• Assisted reproduction

Executive Dean, Faculty of Health

Regional Engagement Officer - Shepparton

Lecturer/Senior Lecturer, Earth System Science (School of Science)

Sydney Horizon Educators (Identified)

Deputy Social Media Producer

• Search Menu
• Browse content in Arts and Humanities
• Browse content in Archaeology
• Anglo-Saxon and Medieval Archaeology
• Archaeological Methodology and Techniques
• Archaeology by Region
• Archaeology of Religion
• Archaeology of Trade and Exchange
• Biblical Archaeology
• Contemporary and Public Archaeology
• Environmental Archaeology
• Historical Archaeology
• History and Theory of Archaeology
• Industrial Archaeology
• Landscape Archaeology
• Mortuary Archaeology
• Prehistoric Archaeology
• Underwater Archaeology
• Urban Archaeology
• Zooarchaeology
• Browse content in Architecture
• Architectural Structure and Design
• History of Architecture
• Residential and Domestic Buildings
• Theory of Architecture
• Browse content in Art
• Art Subjects and Themes
• History of Art
• Industrial and Commercial Art
• Theory of Art
• Biographical Studies
• Byzantine Studies
• Browse content in Classical Studies
• Classical History
• Classical Philosophy
• Classical Mythology
• Classical Literature
• Classical Reception
• Classical Art and Architecture
• Classical Oratory and Rhetoric
• Greek and Roman Epigraphy
• Greek and Roman Law
• Greek and Roman Papyrology
• Greek and Roman Archaeology
• Late Antiquity
• Religion in the Ancient World
• Digital Humanities
• Browse content in History
• Colonialism and Imperialism
• Diplomatic History
• Environmental History
• Genealogy, Heraldry, Names, and Honours
• Genocide and Ethnic Cleansing
• Historical Geography
• History by Period
• History of Emotions
• History of Agriculture
• History of Education
• History of Gender and Sexuality
• Industrial History
• Intellectual History
• International History
• Labour History
• Legal and Constitutional History
• Local and Family History
• Maritime History
• Military History
• National Liberation and Post-Colonialism
• Oral History
• Political History
• Public History
• Regional and National History
• Revolutions and Rebellions
• Slavery and Abolition of Slavery
• Social and Cultural History
• Theory, Methods, and Historiography
• Urban History
• World History
• Browse content in Language Teaching and Learning
• Language Learning (Specific Skills)
• Language Teaching Theory and Methods
• Browse content in Linguistics
• Applied Linguistics
• Cognitive Linguistics
• Computational Linguistics
• Forensic Linguistics
• Grammar, Syntax and Morphology
• Historical and Diachronic Linguistics
• History of English
• Language Acquisition
• Language Evolution
• Language Reference
• Language Variation
• Language Families
• Lexicography
• Linguistic Anthropology
• Linguistic Theories
• Linguistic Typology
• Phonetics and Phonology
• Psycholinguistics
• Sociolinguistics
• Translation and Interpretation
• Writing Systems
• Browse content in Literature

Bibliography

• Children's Literature Studies
• Literary Studies (Asian)
• Literary Studies (European)
• Literary Studies (Eco-criticism)
• Literary Studies (Romanticism)
• Literary Studies (American)
• Literary Studies (Modernism)
• Literary Studies - World
• Literary Studies (1500 to 1800)
• Literary Studies (19th Century)
• Literary Studies (20th Century onwards)
• Literary Studies (African American Literature)
• Literary Studies (British and Irish)
• Literary Studies (Early and Medieval)
• Literary Studies (Fiction, Novelists, and Prose Writers)
• Literary Studies (Gender Studies)
• Literary Studies (Graphic Novels)
• Literary Studies (History of the Book)
• Literary Studies (Plays and Playwrights)
• Literary Studies (Poetry and Poets)
• Literary Studies (Postcolonial Literature)
• Literary Studies (Queer Studies)
• Literary Studies (Science Fiction)
• Literary Studies (Travel Literature)
• Literary Studies (War Literature)
• Literary Studies (Women's Writing)
• Literary Theory and Cultural Studies
• Mythology and Folklore
• Shakespeare Studies and Criticism
• Browse content in Media Studies
• Browse content in Music
• Applied Music
• Dance and Music
• Ethics in Music
• Ethnomusicology
• Gender and Sexuality in Music
• Medicine and Music
• Music Cultures
• Music and Religion
• Music and Media
• Music and Culture
• Music Education and Pedagogy
• Music Theory and Analysis
• Musical Scores, Lyrics, and Libretti
• Musical Structures, Styles, and Techniques
• Musicology and Music History
• Performance Practice and Studies
• Race and Ethnicity in Music
• Sound Studies
• Browse content in Performing Arts
• Browse content in Philosophy
• Aesthetics and Philosophy of Art
• Epistemology
• Feminist Philosophy
• History of Western Philosophy
• Metaphysics
• Moral Philosophy
• Non-Western Philosophy
• Philosophy of Science
• Philosophy of Language
• Philosophy of Mind
• Philosophy of Perception
• Philosophy of Action
• Philosophy of Law
• Philosophy of Religion
• Philosophy of Mathematics and Logic
• Practical Ethics
• Social and Political Philosophy
• Browse content in Religion
• Biblical Studies
• Christianity
• East Asian Religions
• History of Religion
• Judaism and Jewish Studies
• Qumran Studies
• Religion and Education
• Religion and Health
• Religion and Politics
• Religion and Science
• Religion and Law
• Religion and Art, Literature, and Music
• Religious Studies
• Browse content in Society and Culture
• Cookery, Food, and Drink
• Cultural Studies
• Customs and Traditions
• Ethical Issues and Debates
• Hobbies, Games, Arts and Crafts
• Lifestyle, Home, and Garden
• Natural world, Country Life, and Pets
• Popular Beliefs and Controversial Knowledge
• Sports and Outdoor Recreation
• Technology and Society
• Travel and Holiday
• Visual Culture
• Browse content in Law
• Arbitration
• Browse content in Company and Commercial Law
• Commercial Law
• Company Law
• Browse content in Comparative Law
• Systems of Law
• Competition Law
• Browse content in Constitutional and Administrative Law
• Government Powers
• Judicial Review
• Local Government Law
• Military and Defence Law
• Parliamentary and Legislative Practice
• Construction Law
• Contract Law
• Browse content in Criminal Law
• Criminal Procedure
• Criminal Evidence Law
• Sentencing and Punishment
• Employment and Labour Law
• Environment and Energy Law
• Browse content in Financial Law
• Banking Law
• Insolvency Law
• History of Law
• Human Rights and Immigration
• Intellectual Property Law
• Browse content in International Law
• Private International Law and Conflict of Laws
• Public International Law
• IT and Communications Law
• Jurisprudence and Philosophy of Law
• Law and Politics
• Law and Society
• Browse content in Legal System and Practice
• Courts and Procedure
• Legal Skills and Practice
• Primary Sources of Law
• Regulation of Legal Profession
• Medical and Healthcare Law
• Browse content in Policing
• Criminal Investigation and Detection
• Police and Security Services
• Police Procedure and Law
• Police Regional Planning
• Browse content in Property Law
• Personal Property Law
• Study and Revision
• Terrorism and National Security Law
• Browse content in Trusts Law
• Wills and Probate or Succession
• Browse content in Medicine and Health
• Browse content in Allied Health Professions
• Arts Therapies
• Clinical Science
• Dietetics and Nutrition
• Occupational Therapy
• Operating Department Practice
• Physiotherapy
• Radiography
• Speech and Language Therapy
• Browse content in Anaesthetics
• General Anaesthesia
• Neuroanaesthesia
• Browse content in Clinical Medicine
• Acute Medicine
• Cardiovascular Medicine
• Clinical Genetics
• Clinical Pharmacology and Therapeutics
• Dermatology
• Endocrinology and Diabetes
• Gastroenterology
• Genito-urinary Medicine
• Geriatric Medicine
• Infectious Diseases
• Medical Toxicology
• Medical Oncology
• Pain Medicine
• Palliative Medicine
• Rehabilitation Medicine
• Respiratory Medicine and Pulmonology
• Rheumatology
• Sleep Medicine
• Sports and Exercise Medicine
• Clinical Neuroscience
• Community Medical Services
• Critical Care
• Emergency Medicine
• Forensic Medicine
• Haematology
• History of Medicine
• Browse content in Medical Dentistry
• Oral and Maxillofacial Surgery
• Paediatric Dentistry
• Restorative Dentistry and Orthodontics
• Surgical Dentistry
• Browse content in Medical Skills
• Clinical Skills
• Communication Skills
• Nursing Skills
• Surgical Skills
• Medical Ethics
• Medical Statistics and Methodology
• Browse content in Neurology
• Clinical Neurophysiology
• Neuropathology
• Nursing Studies
• Browse content in Obstetrics and Gynaecology
• Gynaecology
• Occupational Medicine
• Ophthalmology
• Otolaryngology (ENT)
• Browse content in Paediatrics
• Neonatology
• Browse content in Pathology
• Chemical Pathology
• Clinical Cytogenetics and Molecular Genetics
• Histopathology
• Medical Microbiology and Virology
• Patient Education and Information
• Browse content in Pharmacology
• Psychopharmacology
• Browse content in Popular Health
• Caring for Others
• Complementary and Alternative Medicine
• Self-help and Personal Development
• Browse content in Preclinical Medicine
• Cell Biology
• Molecular Biology and Genetics
• Reproduction, Growth and Development
• Primary Care
• Professional Development in Medicine
• Browse content in Psychiatry
• Addiction Medicine
• Child and Adolescent Psychiatry
• Forensic Psychiatry
• Learning Disabilities
• Old Age Psychiatry
• Psychotherapy
• Browse content in Public Health and Epidemiology
• Epidemiology
• Public Health
• Browse content in Radiology
• Clinical Radiology
• Interventional Radiology
• Nuclear Medicine
• Radiation Oncology
• Reproductive Medicine
• Browse content in Surgery
• Cardiothoracic Surgery
• Gastro-intestinal and Colorectal Surgery
• General Surgery
• Neurosurgery
• Paediatric Surgery
• Peri-operative Care
• Plastic and Reconstructive Surgery
• Surgical Oncology
• Transplant Surgery
• Trauma and Orthopaedic Surgery
• Vascular Surgery
• Browse content in Science and Mathematics
• Browse content in Biological Sciences
• Aquatic Biology
• Biochemistry
• Bioinformatics and Computational Biology
• Developmental Biology
• Ecology and Conservation
• Evolutionary Biology
• Genetics and Genomics
• Microbiology
• Molecular and Cell Biology
• Natural History
• Plant Sciences and Forestry
• Research Methods in Life Sciences
• Structural Biology
• Systems Biology
• Zoology and Animal Sciences
• Browse content in Chemistry
• Analytical Chemistry
• Computational Chemistry
• Crystallography
• Environmental Chemistry
• Industrial Chemistry
• Inorganic Chemistry
• Materials Chemistry
• Medicinal Chemistry
• Mineralogy and Gems
• Organic Chemistry
• Physical Chemistry
• Polymer Chemistry
• Study and Communication Skills in Chemistry
• Theoretical Chemistry
• Browse content in Computer Science
• Artificial Intelligence
• Computer Architecture and Logic Design
• Game Studies
• Human-Computer Interaction
• Mathematical Theory of Computation
• Programming Languages
• Software Engineering
• Systems Analysis and Design
• Virtual Reality
• Browse content in Computing
• Business Applications
• Computer Security
• Computer Games
• Computer Networking and Communications
• Digital Lifestyle
• Graphical and Digital Media Applications
• Operating Systems
• Browse content in Earth Sciences and Geography
• Atmospheric Sciences
• Environmental Geography
• Geology and the Lithosphere
• Maps and Map-making
• Meteorology and Climatology
• Oceanography and Hydrology
• Palaeontology
• Physical Geography and Topography
• Regional Geography
• Soil Science
• Urban Geography
• Browse content in Engineering and Technology
• Agriculture and Farming
• Biological Engineering
• Civil Engineering, Surveying, and Building
• Electronics and Communications Engineering
• Energy Technology
• Engineering (General)
• Environmental Science, Engineering, and Technology
• History of Engineering and Technology
• Mechanical Engineering and Materials
• Technology of Industrial Chemistry
• Transport Technology and Trades
• Browse content in Environmental Science
• Applied Ecology (Environmental Science)
• Conservation of the Environment (Environmental Science)
• Environmental Sustainability
• Environmentalist Thought and Ideology (Environmental Science)
• Management of Land and Natural Resources (Environmental Science)
• Natural Disasters (Environmental Science)
• Nuclear Issues (Environmental Science)
• Pollution and Threats to the Environment (Environmental Science)
• Social Impact of Environmental Issues (Environmental Science)
• History of Science and Technology
• Browse content in Materials Science
• Ceramics and Glasses
• Composite Materials
• Metals, Alloying, and Corrosion
• Nanotechnology
• Browse content in Mathematics
• Applied Mathematics
• Biomathematics and Statistics
• History of Mathematics
• Mathematical Education
• Mathematical Finance
• Mathematical Analysis
• Numerical and Computational Mathematics
• Probability and Statistics
• Pure Mathematics
• Browse content in Neuroscience
• Cognition and Behavioural Neuroscience
• Development of the Nervous System
• Disorders of the Nervous System
• History of Neuroscience
• Invertebrate Neurobiology
• Molecular and Cellular Systems
• Neuroendocrinology and Autonomic Nervous System
• Neuroscientific Techniques
• Sensory and Motor Systems
• Browse content in Physics
• Astronomy and Astrophysics
• Atomic, Molecular, and Optical Physics
• Biological and Medical Physics
• Classical Mechanics
• Computational Physics
• Condensed Matter Physics
• Electromagnetism, Optics, and Acoustics
• History of Physics
• Mathematical and Statistical Physics
• Measurement Science
• Nuclear Physics
• Particles and Fields
• Plasma Physics
• Quantum Physics
• Relativity and Gravitation
• Semiconductor and Mesoscopic Physics
• Browse content in Psychology
• Affective Sciences
• Clinical Psychology
• Cognitive Psychology
• Cognitive Neuroscience
• Criminal and Forensic Psychology
• Developmental Psychology
• Educational Psychology
• Evolutionary Psychology
• Health Psychology
• History and Systems in Psychology
• Music Psychology
• Neuropsychology
• Organizational Psychology
• Psychological Assessment and Testing
• Psychology of Human-Technology Interaction
• Psychology Professional Development and Training
• Research Methods in Psychology
• Social Psychology
• Browse content in Social Sciences
• Browse content in Anthropology
• Anthropology of Religion
• Human Evolution
• Medical Anthropology
• Physical Anthropology
• Regional Anthropology
• Social and Cultural Anthropology
• Theory and Practice of Anthropology
• Browse content in Business and Management
• Business Strategy
• Business Ethics
• Business History
• Business and Government
• Business and Technology
• Business and the Environment
• Comparative Management
• Corporate Governance
• Corporate Social Responsibility
• Entrepreneurship
• Health Management
• Human Resource Management
• Industrial and Employment Relations
• Industry Studies
• Information and Communication Technologies
• International Business
• Knowledge Management
• Management and Management Techniques
• Operations Management
• Organizational Theory and Behaviour
• Pensions and Pension Management
• Public and Nonprofit Management
• Strategic Management
• Supply Chain Management
• Browse content in Criminology and Criminal Justice
• Criminal Justice
• Criminology
• Forms of Crime
• International and Comparative Criminology
• Youth Violence and Juvenile Justice
• Development Studies
• Browse content in Economics
• Agricultural, Environmental, and Natural Resource Economics
• Asian Economics
• Behavioural Finance
• Behavioural Economics and Neuroeconomics
• Econometrics and Mathematical Economics
• Economic Systems
• Economic History
• Economic Methodology
• Economic Development and Growth
• Financial Markets
• Financial Institutions and Services
• General Economics and Teaching
• Health, Education, and Welfare
• History of Economic Thought
• International Economics
• Labour and Demographic Economics
• Law and Economics
• Macroeconomics and Monetary Economics
• Microeconomics
• Public Economics
• Urban, Rural, and Regional Economics
• Welfare Economics
• Browse content in Education
• Adult Education and Continuous Learning
• Care and Counselling of Students
• Early Childhood and Elementary Education
• Educational Equipment and Technology
• Educational Strategies and Policy
• Higher and Further Education
• Organization and Management of Education
• Philosophy and Theory of Education
• Schools Studies
• Secondary Education
• Teaching of a Specific Subject
• Teaching of Specific Groups and Special Educational Needs
• Teaching Skills and Techniques
• Browse content in Environment
• Applied Ecology (Social Science)
• Climate Change
• Conservation of the Environment (Social Science)
• Environmentalist Thought and Ideology (Social Science)
• Natural Disasters (Environment)
• Social Impact of Environmental Issues (Social Science)
• Browse content in Human Geography
• Cultural Geography
• Economic Geography
• Political Geography
• Browse content in Interdisciplinary Studies
• Communication Studies
• Museums, Libraries, and Information Sciences
• Browse content in Politics
• African Politics
• Asian Politics
• Chinese Politics
• Comparative Politics
• Conflict Politics
• Elections and Electoral Studies
• Environmental Politics
• European Union
• Foreign Policy
• Gender and Politics
• Human Rights and Politics
• Indian Politics
• International Relations
• International Organization (Politics)
• International Political Economy
• Irish Politics
• Latin American Politics
• Middle Eastern Politics
• Political Methodology
• Political Communication
• Political Philosophy
• Political Sociology
• Political Behaviour
• Political Economy
• Political Institutions
• Political Theory
• Politics and Law
• Public Administration
• Public Policy
• Quantitative Political Methodology
• Regional Political Studies
• Russian Politics
• Security Studies
• State and Local Government
• UK Politics
• US Politics
• Browse content in Regional and Area Studies
• African Studies
• Asian Studies
• East Asian Studies
• Japanese Studies
• Latin American Studies
• Middle Eastern Studies
• Native American Studies
• Scottish Studies
• Browse content in Research and Information
• Research Methods
• Browse content in Social Work
• Addictions and Substance Misuse
• Adoption and Fostering
• Care of the Elderly
• Child and Adolescent Social Work
• Couple and Family Social Work
• Developmental and Physical Disabilities Social Work
• Direct Practice and Clinical Social Work
• Emergency Services
• Human Behaviour and the Social Environment
• International and Global Issues in Social Work
• Mental and Behavioural Health
• Social Justice and Human Rights
• Social Policy and Advocacy
• Social Work and Crime and Justice
• Social Work Macro Practice
• Social Work Practice Settings
• Social Work Research and Evidence-based Practice
• Welfare and Benefit Systems
• Browse content in Sociology
• Childhood Studies
• Community Development
• Comparative and Historical Sociology
• Economic Sociology
• Gender and Sexuality
• Gerontology and Ageing
• Health, Illness, and Medicine
• Marriage and the Family
• Migration Studies
• Occupations, Professions, and Work
• Organizations
• Population and Demography
• Race and Ethnicity
• Social Theory
• Social Movements and Social Change
• Social Research and Statistics
• Social Stratification, Inequality, and Mobility
• Sociology of Religion
• Sociology of Education
• Sport and Leisure
• Urban and Rural Studies
• Browse content in Warfare and Defence
• Defence Strategy, Planning, and Research
• Land Forces and Warfare
• Military Administration
• Military Life and Institutions
• Naval Forces and Warfare
• Other Warfare and Defence Issues
• Peace Studies and Conflict Resolution
• Weapons and Equipment

• < Previous chapter
• Next chapter >

17 Is Surrogacy Ethically Problematic?

Leslie Francis is Distinguished Professor of Philosophy, Distinguished Alfred C. Emery Professor of Law, and Director of the Center for Law & Biomedical Sciences at the University of Utah. She recently published Privacy: What Everyone Needs to Know (with John Francis, Oxford 2017) and edited The Oxford Handbook of Reproductive Ethics (2017). She is the author of many articles about disability in philosophy and in law and frequently provides pro bono legal representation for people who are the subject of petitions for guardianship.

• Published: 03 August 2016
• Cite Icon Cite
• Permissions Icon Permissions

Commercial surrogacy is widely criticized as exploitive, as baby selling, or as even trafficking in persons. Less well-explored questions concern whether surrogacy is problematic in itself, a form of bodily labor that it is impermissible for one person to perform for another. This chapter argues first that grounds advanced for judging surrogacy as impermissible bodily labor sweep too broadly. It then rejects claims that surrogacy impermissibly burdens the autonomy of the pregnant woman or the intended female parent, that surrogacy wrongly devalues the child-to-be, or that surrogacy disrespects the parent–child relationship. With appropriate protections against exploitation and coercion, both commercial surrogacy and altruistic surrogacy are ethically appropriate.

Risks of exploitation in surrogacy, especially commercial surrogacy, are impressive, as eloquently documented by Donna Dickenson in this volume. Many commentators also have written about potential harms to the child when gestation is achieved through surrogacy—from commodification in apparent baby selling, to unsafe pregnancy conditions, to unfit parents or parents with abusive conceptions of who or what they want their child to be. 1 Concerns have also been raised about the frequency with which apparently voluntary commercial surrogacy is really a form of trafficking, either of the surrogate or of the child. This chapter will assume that exploitation and its extreme form in trafficking, as well as these forms of harm to the child, are wrongs to be avoided in any permissible surrogacy. If a surrogacy practice inevitably incorporates or creates serious risks of these wrongs, the practice would be wrong. But supposing these harms do not actually exist or could be left aside, is surrogacy itself ethically permissible? Are there ethical reasons to question all surrogacy, even noncommercialized, uncoerced, and altruistic arrangements among family members?

This chapter takes up less well-trodden questions 2 about whether a surrogacy arrangement in which one person carries a pregnancy for another is ethically problematic in itself—and if so, why. Pregnancy and delivery are quintessential bodily labor. One set of arguments tests whether carrying a pregnancy is the type of bodily labor one person ethically may perform for another, whether or not for pay. These arguments contend that surrogacy cannot be a permissible service, no matter how well intended or structured. Another set of questions probes the value and identity of the child, asking whether surrogacy is inevitably akin to baby selling or, if not, devalues the child in some other way. A final set of related questions attends to whether surrogacy properly respects the relationship between the pregnant woman and the child-to-be. The general strategy of the argument is to show that we cannot reject all surrogacy on any of these grounds without also rejecting other practices that we find acceptable. The conclusion is that although there are serious ethical issues about surrogacy arrangements, they can be allayed by how these arrangements are structured and are far outweighed by the interests of infertile individuals or couples in becoming parents.

Most surrogacy today is “gestational” surrogacy, in which neither the surrogate nor her partner contributes the gametes to be used in the pregnancy. I address this form of surrogacy primarily 3 but begin with some remarks about “traditional” surrogacy, because it initiated the practice and has to some extent continued to frame the debates.

Traditional and Gestational Surrogacy

Surrogacy exploded onto the legal scene in the 1988 New Jersey case of Baby M. 4 In this case, Mary Beth Whitehead was the genetic and gestational mother of the child; William Stern was the child’s genetic father; and William and Elizabeth Stern were the child’s intended rearing parents. The pregnancy was achieved by artificial insemination using sperm from William Stern. The surrogacy contract provided that Whitehead was to be paid $10,000 for gestation of the child and doing whatever was necessary to terminate her maternal rights so that Elizabeth Stern would be able to adopt the child. Mary Beth Whitehead’s husband was also a party to the contract; he agreed to do whatever was necessary to rebut presumptions of paternity under state law. After the baby’s birth, Whitehead became emotionally distraught and sought to keep the child; Stern brought suit to enforce the surrogacy contract. The New Jersey Supreme Court ultimately concluded that the surrogacy contract violated the public policy of the state, using instructive reasoning.

Core to the court’s reasoning was New Jersey’s adoption statute. That statute prohibited money payments in exchange for an adoption and imposed strict requirements on the relinquishment of parental rights, which was not permitted until after the child’s birth. The court determined that the surrogacy arrangement employed private contract law to circumvent these restrictions of the adoption statute. In the court’s view, the money was being paid to obtain an adoption and not for personal services, despite provisions in the contract reciting that it was for services. Moreover, the contract was necessarily coercive because it created an irrevocable agreement, prior to birth or even conception, for the surrender of any resulting child, also not permitted for private adoptions under New Jersey state law. Adoption is for humanitarian purposes, the court said; in contrast, the surrogacy arrangement between William Stern and the Whiteheads was an economic arrangement “without regard to the interest of the child or the natural mother.” 5

Several themes stand out in the court’s critique of contractual surrogacy. The first is that carrying a child for another is not an ordinary service that can be the subject of ordinary contract law. The second is that the woman carrying the child as its genetic and gestational mother is the child’s “natural” mother. This relationship can only be terminated under very special conditions of either voluntariness (as with adoption) or malfeasance (as with the termination of parental rights for cause). These themes continue to sound in criticisms of surrogacy arrangements today.

In another early surrogacy case, this time involving gestational surrogacy, the California Supreme Court reasoned quite differently. 6 Mark and Crispina Calvert contracted with Anna Johnson to bear a child created from Mark’s sperm and Christina’s egg. Anna was to be paid $10,000 and was to relinquish all parental rights to the child in favor of the Calverts. Rejecting adoption as a model, 7 the court turned instead to the Uniform Parentage Act’s treatment of the parent–child relationship between natural or adoptive parents and their children. Under that Act, any interested party can bring suit to determine the existence of a mother–child relationship; this includes the genetic mother of the child. Just as fathers can establish paternity by establishing the genetic linkage, so can mothers, reasoned the California court. Cristina’s claim to parenthood was genetic, Anna’s gestational; in that sense both had claims to a maternal relationship with the child. According to the court, California law provided no basis for choosing between the two; thus, the court examined the terms of the surrogacy agreement to establish intended parenthood. According to the court: “although the Act recognizes both genetic consanguinity and giving birth as means of establishing a mother and child relationship, when the two means do not coincide in one woman, she who intended to procreate the child—that is, she who intended to bring about the birth of a child that she intended to raise as her own—is the natural mother under California law.” 8

Like the New Jersey court, the California court uses the language of “natural” motherhood to describe what is also a legal choice—that is, the identification of the legal mother. Unlike New Jersey, however, California contends that the surrogate would not have been able to conceive the child in question without the intentions of the planned parents. The gestational mother is “agreeing to provide a necessary and profoundly important service without (by definition) any expectation that she will raise the resulting child as her own.” 9 The arrangement could be fully voluntary, as at the time of contracting Anna was not expected to “part with her own expected offspring.” 10 The court also opined that it is unlikely that prospective parents would choose to procreate in this way without taking the child’s interests as central.

Perhaps the difference between the New Jersey and California courts’ analyses hinges on the difference between traditional and gestational surrogacy. Gestational surrogacy may involve a biological relationship between the intended mother and the child that traditional surrogacy does not, the genetic tie; with traditional surrogacy, the intended mother bears no biological relationship with her prospective child. Of course, gestational surrogacy also may involve the use of third-party gametes, in which case neither the surrogate nor the intended mother is a source of the child’s genetic makeup. Subsequent case law in New Jersey does reflect consideration of such genetic ties, at least to some extent. In a case decided in 2000, a sister carried an embryo created from the sperm of her brother-in-law and the egg of her sister who was unable to carry a pregnancy. The intended parents (with the surrogate’s agreement) petitioned for a prebirth order to have the birth certificate list them as the child’s parents. Bowing to the postbirth right of the surrogate not to relinquish the child for adoption for 72 hours after birth, the court refused to issue the requested prebirth order. To support this conclusion, the court relied on the emotional ties created by pregnancy: the intended parents’ “simplistic comparison to an incubator disregards the fact that there are human emotions and biological changes involved in pregnancy.” 11 However, as the window for relinquishment of parental rights opened before the birth certificate needed to be filed at 5 days after birth, the court issued an order permitting the certificate to be changed before filing to list the intended parents as the child’s parents, on condition that the gestational mother agree to relinquish her rights to the child. In a later decision, however, the New Jersey courts declined to extend this strategy to a case of gestational surrogacy in which the parties used a donated egg, so that the intended mother bore no biological relationship to the child and the gestational mother bore only a gestational relationship. 12 The intended parents claimed that application of the Uniform Parentage Act—the statute employed in the Baby M case—to allow the intended (and genetic) father to claim parentage on the birth certificate but not the intended mother violated equal protection, but the New Jersey court found that it did not as it tracked actual biological differences. 13

This reasoning of the New Jersey court that biological ties somehow matter—whether gestational or genetic—persists in some criticisms of surrogacy arrangements. Yet it leaves puzzles about which biological ties matter and why. Moreover, in contemporary surrogacy arrangements involving oocyte donation, neither the gestational nor the intended mother has genetic ties to the child (and the intended father might not have such ties as well). Fuller examination of the services and relationships involved in surrogacy is thus critical to understanding its ethical permissibility.

Surrogacy as Service

Surrogacy is a quintessential act of bodily labor for another. It is physically intrusive, involving pregnancy, birth, and in its gestational form, hormonal stimulation and embryo transfer. Are there reasons for thinking that it is wrongful for one person to perform such invasive bodily labor as a service for another? This section addresses the ethical permissibility of providing gestational services, whether or not in exchange for pay. If it were unethical to perform these services altruistically, it would presumably also be unethical to do so for less compelling economic reasons.

The most sweeping objection to surrogacy doubts the permissibility of one person performing any invasive bodily labor for another. This claim is surely too strong: we permit and even applaud people for donating organs for others or bearing babies in loving relationships where the nongestating partner has the primary desire for the child, both examples of invasive bodily labor performed for the benefit of others. A thought experiment in Judith Jarvis Thomson’s famous abortion article (1971) illustrates. Thomson analogized pregnancy to dialysis with a human being providing the kidney: suppose, she asked, you were kidnapped by a society of violin lovers and attached to a great violinist. The plan was to allow the violinist use of your kidneys for 9 months in a manner that would save the violinist’s life and that would be inconvenient but not physically risky to you. Thomson’s conclusion was that because the violinist had no right to the use of your kidneys, it would be ethically permissible for you to unhook yourself from the arrangement; the analogy was used to show that it does not follow from a claim of the right to life (by the violinist) that there is a right to the means of life. To be sure, a “good Samaritan” might continue to allow the kidney use, and a “minimally decent Samaritan” might do so for a short period of time, Thomson observes; her point is only that allowing the continued kidney use is not morally obligatory. Subsequent commentary on Thomson’s thought experiment has been primarily directed to supposed disanalogies between the hypothetical kidnapping and actual pregnancy. I know of no discussions that have attacked Thomson’s observation that it is ethically permissible for good—or decent—Samaritans to permit the ongoing use of their kidneys in this way. Yet this is exactly what would be questioned if it were thought impermissible to allow one person to provide such invasive bodily labor for another.

A more limited objection contends that it is wrong for one person to provide particularly risky or burdensome invasive bodily labor for another. For example, in organ donation living donors are assessed and rejected if the risks to them are judged to be too high, even if they are willing to consent to the use of their bodies in this way (e.g., Reichman et al. 2011 ). Surrogates are also assessed for risk and—at least in programs complying with professional guidelines—rejected for significant physical or psychological risk ( ASRM Practice Committee 2015 ; Daar , this volume). Thus if surrogates are appropriately screened for risk, it would appear that level of risk does not present a principled distinction between this use of the body of another and other uses that are judged ethically permissible. To be sure, kidney or liver transplants from living donors are performed as life-saving measures for their recipients; carrying a child for another is not typically life saving, although it may be deeply meaningful. But to defend this distinction in this way is to rely on contested judgments about whether assisted reproduction is a sufficiently weighty purpose to override the risks it might impose. One such judgment might be that services that carry a risk of death (as organ donation or pregnancy may in very unusual cases) are only permissible if their goal is to save the life of another. But this judgment would prohibit any rescue that risks the life of the rescuer (no matter how small the risk) to save another from serious but nonfatal harm. Another such judgment might be that reproduction is not a sufficiently important service, but this defense devalues reproductive bodily services in a manner that remains to be argued.

Indeed, we regard as ethically permissible other forms of physical labor for others that are quite risky. Nursing is an example. Over a third of nurses suffer debilitating back injuries primarily attributable to repetitive lifting and transferring of patients ( Brown 2003 ). Residential care workers have similarly high rates of injury ( Harris 2013 ). These injury rates are far beyond those associated with normal pregnancy and birth. Although many lifts and transfers are performed to avoid morbidity such as sores, others are for quality of life reasons such as a nursing home patient’s ability to have meals with others or go outside. Many family members also perform these tasks in order to enable loved ones to remain at home and in the community; although I know of no data studying familial injury rates, presumably they would be at least similar to those of trained professionals performing the same service, likely with better equipment.

Another more limited way to argue against surrogacy as a service is to argue that it is a special form of bodily labor for another that ought not to be compensated but that might permissibly be performed altruistically. As in the example of the New Jersey case described above, intrafamilial surrogacy arrangements or close-friend arrangements may be desirable for some infertile couples ( ESHRE Task Force 2011 ). Implementing this approach are laws prohibiting commercial surrogacy but allowing uncompensated arrangements. 14 This is only an objection to commercialized forms of surrogacy, however; uncompensated surrogacy would remain permissible (as in many countries of the world), unless it is inevitably tied to commercial surrogacy. However, examining arguments offered against commercial surrogacy presents the opportunity to consider whether they extend to noncommercial surrogacy as well.

Compensated Surrogacy

Many jurisdictions prohibit paid surrogacy while permitting supposedly uncompensated versions of the practice. Although my primary focus is the ethics of unpaid surrogacy, examining issues about paid surrogacy can be revealing about unpaid surrogacy.

A threshold problem with drawing the commercial/noncommercial line is the difficulty in distinguishing commercial from purely uncompensated forms of surrogacy ( van Zyl and Walker 2013 ). Although there no doubt are arrangements in which the surrogate receives no form of payment, many surrogacies—including those in jurisdictions that do not permit paid surrogacy—compensate for expenses the surrogate would not otherwise have incurred but for the gestation. These typically include medical expenses, maternity clothes (and perhaps new clothes post birth), compensation for lost wages, and other expenses associated with the pregnancy. Of note, these pregnancy-related expenses are so significant that it would arguably be unfair to the surrogate to expect her to bear them on her own. 15 Moreover, pregnancies do go awry at times, and it would seem especially unfair not to provide a surrogate with insurance against unexpected medical expenses.

Recognizing these issues in distinguishing commercial from noncommercial surrogacy, van Zyl and Walker (2013) argue that neither fully commercialized models nor fully altruistic models are appropriate for understanding the practice. As another reason for rejecting the purely altruistic paradigm, these authors also contend that it fails to take into account the reciprocal obligations parties in a surrogacy arrangement have to one another; for example, the surrogate has obligations to take care during the pregnancy and the intended parents have obligations to treat the surrogate with respect. Instead, van Zyl and Walker defend surrogacy as analogous to helping professions in which altruistic motivations are important, but fair compensation and the legitimate expectations of the parties also are recognized. An additional advantage of the professional analogy, they observe, is that professionals typically have organizations and rules to protect them from unethical conduct—both their own and those of others. On their view, if surrogacy arrangements were subject to proper oversight, it would be appropriate to enforce contracts on which the surrogate agrees in advance to relinquish the child to the intended parents.

Unfortunately, surrogacy also may be cast in altruistic terms when this is not at all what is taking place. Critics of commercial surrogacy such as Dickinson (this volume) rightly demonstrate how blatantly economic surrogate arrangements may be masked as gifts—and how this mischaracterization may conceal exploitation of surrogates. The point is important that misleadingly characterizing surrogacy as a pure gift may devalue the pressures and burdens on the surrogate. But similar concerns apply to regarding family caregivers as altruistic actors—and the ethical response is that these caregivers should be treated fairly and compensated reasonably, not that they should not engage in the care at all.

In assessing paid surrogacy, it is worth noting that we do allow some intimate activities for others to be compensated, so it cannot be the intimacy alone that explains opposition to compensation. Assistants are paid to wash, bathe, feed, and perform bowel care for people who cannot achieve these functions independently. While families often take primary roles in performing these functions—and desire to perform such caregiving functions out of love—on many views they are neither obligated to do this nor thought less of because they rely on help from others who are paid for their work (e.g., Levine 2005 ). Wet nursing as a social practice historically was identified with infant abandonment or with aristocratic women handing off tasks they regarded as unpleasant to the poor, but today it has garnered increased interest in light of evidence about the negative health effects of formula feeding ( Stevens, Patrick, and Pickler 2009 ).

On the other hand, there may be intimate functions that only or primarily families can do, especially functions that rely on close personal knowledge. Hilde Lindemann (2009) , for example, argues that family members have special responsibilities to construct continuing identities with people with dementia. Or there may be functions that should be reserved only to intimates such as the performance of sexual services for people with disabilities. 16 But that some intimate functions are or should be special to families does not show that all are; reasons would still be required for concluding that gestation is a service that can or should only be performed within the familial or close friend relationships that are likely to be the context for noncommercial surrogacy.

Further reasons offered for viewing surrogacy as special in a way that precludes commercialization rest in accounts of the surrogate’s own flourishing, the identity of the child, or the desirability of preserving certain forms of parent–child relationships. Two early and powerful criticisms of surrogacy—by Margaret Jane Radin and by Elizabeth Anderson—both developed arguments that performing this particular kind of intimate bodily labor for another is inconsistent with the pregnant woman’s own flourishing. Writing before the transition from traditional to gestational surrogacy, both authors addressed commercial forms of traditional surrogacy primarily, but with arguments that have more general import.

In her seminal article about commodification of intimate activities, Margaret Jane Radin (1987) defended a view of market-inalienability rooted in human flourishing. On her account, the dividing line between permissible and impermissible commodification lies in core aspects of personhood, freedom, and identity, set in context. Freedom is the power to choose for oneself, and identity is the continuing integrity of the self that is necessary for individuation; these interact in the context of environments in which persons seek to constitute themselves. Surrogacy (along with baby selling and prostitution) should not be subject to purchase and sale in an ideal world, Radin concludes, because they alienate important personal attributes and relationships (p. 1904). A complication for a nonideal world is that some forms of at least partial commodification may be tolerated to avoid even worse injustices. Commercialized sex is problematic because sex should be “freely shared,” not engaged in only if the parties believe it is economically worthwhile. However, there may be nonideal contexts in which selling sex is the best of very bad options for otherwise impoverished or oppressed women. By contrast, babies are not fungible; to sell them is deny their individual identity (p. 1908) and is never ethically permissible, even in the worst of contexts.

Surrogacy, Radin thinks, is a more difficult case for a nonideal world, but she concludes that reproductive services should be market-inalienable even in contexts in which women have few other choices. Her reasoning is that to sell these services is to alienate a core aspect of identity. Much of her concern lies with commercialization, of both child and gestating mother, but some of what she says applies also to surrogacy in which the gestation is not commercialized. In particular, she deploys her understanding of identity to query whether the gestating woman is regarded as a fungible source of something—the child—produced to satisfy the needs or wants of others. Still worse, Radin says, what the surrogate does is embedded in gender hierarchy, at least in traditional surrogacy, where the goal is the father’s but not the intended mother’s genetic child: she is expected to give up her own child, and the intended infertile mother is expected to raise someone else’s child, all to satisfy the intended father’s desire for a genetic heir (pp. 1929-1930). These points—that the surrogate’s body is being used to satisfy the wants of another, and that the desire for a surrogate-borne child (that may or may not be genetically related) is ineluctably gendered—apply even to noncommercial forms of the practice, on Radin’s view.

Along similar lines, Elizabeth Anderson (1990) contends that surrogacy attributes the wrong sort of value—use value—to gestation. Legal rules that deprive the surrogate of any claims to her child, for example by requiring her to relinquish claims prebirth or even preconception, deprive her of what is “hers both genetically and gestationally” (p. 79). Gestational ties are critical to avoid reducing “the surrogate mothers from persons worthy of respect and consideration to objects of mere use” 17 (p. 80). If these ties are not respected, we fail on Anderson’s view to treat the surrogate in accord with principles consistent with her autonomy and her deeply felt emotions (p. 81).

Undoubtedly, surrogacy uses the woman’s body and in this respect treats the body as having a use value. The surrogate’s body is physically essential for the gestation of the resulting child. It is a significant leap from this biological fact, however, to the conclusion that the surrogacy relationship fails ethically to treat her as a subject of respect and consideration. Surrogacy arrangements that are exploitative would surely be ones in which she is not treated with the respect due persons, but this would be true of any exploitative arrangement. Surrogacy relationships in which the intended parents regard the surrogate only as a vessel for the production of their child and not as a person in her own right would also fail to respect the surrogate as a person. But similar concerns apply to many service relationships in which the servant is devalued. Moreover, while these concerns likely attend some surrogacy arrangements—medical tourism suggests illustrations ( Pande 2014 )—there is no reason to think they must attend all.

Concerning the surrogate, some have contended that in entering into a surrogacy arrangement she fails to treat herself with appropriate self-respect and thus devalues herself. This view requires an account of self-respect that would explain why gestating a child with the intention that others be its parents cannot demonstrate sufficient respect for oneself. Cecile Fabre (2006) attributes such a view to certain theories of the integrity of the body found in liberalism. On these liberal views, personal services involving the body are radically different from taxation: while it might be permissible (albeit not for libertarians) to require taxation to meet the material needs of others, it is impermissible to command personal services to the same end. Fabre replies that if there are duties in justice to provide the poor with material goods needed for a meaningful life by means of taxation, there are also duties in justice to provide them with necessary personal services—at least, absent some other reason to differentiate personal services from material goods. But what might these reasons be, and can they be applied to surrogacy? I have already set aside arguments that these services are uniquely burdensome or intimate. Drawing once again from Radin and Anderson, other arguments might be that surrogacy services can never be freely chosen, that these services must compromise the surrogate’s integrity and thus her ability to lead a flourishing life, or that reproduction must be regarded in a special way that surrogacy does not allow.

Radin holds that market-inalienability should apply when needed to protect individual freedom. Some reasons are prophylactic, if in practice prohibiting any surrogacy is necessary to prevent the emergence of coercive surrogacy. Analogous arguments have been made recently about the Swedish law prohibiting the purchase of sex (but not its sale) that prohibition of voluntary prostitution is necessary to root out human trafficking. 18 Actual likelihoods of coercion are an empirical question, but it might be hypothesized that coercive surrogacy is more likely in trans-border arrangements than in domestic surrogacy contracts and in arrangements where there is a great deal of economic disparity between the parties. 19 At a minimum, it is surely important to have adequate protections against exploitation implemented in all surrogacy arrangements. At present, it is questionable whether voluntary self-regulation on the part of reproductive professionals is sufficient to ensure that these protections are implemented and followed. 20

Radin also hypothesizes a kind of domino effect, if permitting commercialized versions of a practice undermines keeping noncommercialized versions intact. It would thus be an argument against commercialized surrogacy if its presence undercuts altruistic surrogacy, at least assuming that it is desirable for altruistic surrogacy to continue. I know of no empirical evidence that this is the case, however, although there surely are concerns about unregulated commercial surrogacy in some US states. Moreover, noncommercial surrogacy (including compensation for expenses and lost wages) is permitted in many nations across the globe and continues despite the availability of commercial forms elsewhere. 21 A concern on the other side is that those who favor noncommercialized surrogacy are more likely to engage a traditional surrogate, which is a far riskier endeavor from a family law perspective. 22

A related reason given by Radin is that a surrogate cannot act freely. But it is unclear why as a general matter decisions to carry a surrogate pregnancy should all be unfree, any more so than other pregnancies. Indeed, surrogate pregnancies have an advantage over as many as half of other pregnancies at least in that they are planned. So it would need to be true that clear, deliberative choices to undergo pregnancy in these circumstances cannot be freely undertaken. Surely with appropriate counseling surrogacy arrangements can be entered into with full information. Appropriate legal protections can give assurances that surrogacy contracts are not adopted as a result of threats or coercive economic need. Categorical views about the types of pregnancies that can be voluntary—such as that only pregnancies within marriage can be voluntary, or that no pregnancies can ever be fully voluntary—would seem to rely on questionable essentialist assumptions about the forms that free reproduction can take.

These points do not take fully into account the possibility that many surrogacy choices arise out of such complex circumstances and emotions that they should be regarded with suspicion. For example, Fabre cites data to the effect that surrogates most frequently enter into the arrangement out of a complexity of emotions, including guilt over prior abortions and other “mistakes” (2006, p. 192). If so, this would provide a reason for concern about whether surrogacy can be seen as evincing appropriate self-respect, or as manifesting problematic self-blame. Other data indicate that the most likely motivation for surrogacy is the altruistic desire to give parenthood to others ( Jadva et al. 2003 ). Here, too, however, there are concerns about whether in intrafamilial arrangements subtle forms of coercion might be operative; for example, a fertile sister might feel guilty about her ability to reproduce when confronted with the pain of a sister who cannot ( ESHRE Task Force 2011 ). Surely these pressures are operative in some surrogacy decisions; whether they are operative in sufficient numbers to say that the practice is unethical is another matter. Moreover, careful counseling can identify many cases of inappropriate pressures, even if some may remain. In assessing the evidence about the likelihood that surrogates are not choosing freely, care must be taken not to assume that reproductive choices must be irrational or subject to emotions so strong as to overwhelm choice.

A related argument made by surrogacy’s critics is that the surrogate fails to recognize the inevitable emotional ties resulting from gestation. Some claims about these ties were hypothesized before gestational surrogacy’s replacement of traditional surrogacy. But even with gestational surrogacy, surely the biological changes associated with pregnancy and birth will generate emotional reactions. It is an empirical matter what forms these emotions are likely to take, how severe they are likely to be, or whether they are likely to interfere with the surrogate’s subsequent life to an extent that suggests that surrogacy is wrong. One recent (albeit small) study indicates that although the immediate postbirth period is difficult, surrogates do not show signs of depression or reduced self-esteem 10 years after birth ( Jadva, Imrie, and Golombok 2014 ). Moreover, surrogates frequently maintain contact with the intended parents and offspring to an extent that they find satisfying. Arguing that the emotional reactions of pregnancy must be so strong or manifested in a parent–child relationship—so that surrogacy is inconsistent with self-respect—would appear at best a risky strategy for feminists who want to avoid essentialist commitments about the nature of women’s emotions.

Another freedom-based concern is that surrogacy contracts may be structured to commit the woman to relinquish the child before birth, or even before pregnancy has been achieved. Critics argue that this precommitment does not respect the woman’s liberty to change her mind about a very important life event. Some contend that women even when they believe they have completed their own families may not be able to anticipate the emotions they will feel upon being expected to surrender the child they have borne after birth, and so should not be committed to this until after the child’s arrival. On this view, no surrogacy contracts could be enforceable unless they provide a window of choice postpartum for the surrogate to decide whether to relinquish her parental rights. These arguments against precommitment were developed when traditional surrogacy was the primary form of the practice; it is understandable that women with genetic ties to the child might feel differently about relinquishment than women without genetic ties as would be the case with gestational surrogacy, as is also illustrated in the case of adoption.

In assessing surrogacy arrangements involving prebirth commitments, it is useful to ask whether surrogacy contracts are unique in the likelihood of subsequent regret, or whether there are other proposed contracts that are judged impermissible because of their unanticipated emotional burdens when the time comes for enforcement. Several doctrines in contract law might be analytically helpful here (see Fabre 2006 , pp. 215–216). On a theory of unilateral mistake, contracts are voidable if one party held a mistaken belief at the time the contract was entered, that party does not bear the risk of the mistake under the contract, and either enforcement of the contract would be unconscionable or the other party had reason to know of the mistake at the time of contracting or was at fault for the mistake. 23 Typical cases of unilateral mistake are sales in which the seller was grossly in error about the nature of the item sold and seeks to undo the deal. In surrogacy, the mistake would be the surrogate’s belief about her future feelings about relinquishing the child and the judgment that enforcement of the contract would be unconscionable would be based on the surrogate’s attachment to the child. Cases in which contracts are voidable for unilateral mistake are very unusual, however, given the aim of contract law to introduce stability into exchange relationships. If surrogacy is different, perhaps the conclusion to be drawn is that surrogate contracts lacking a postpartum window should be unenforceable as unconscionable. This introduces an element of uncertainty into any surrogacy agreement, although in the vast majority of cases the arrangement will conclude as planned. In any event, a determination that freedom requires this limitation on surrogacy contracts is not an argument against surrogacy, but only for structuring surrogacy contracts to give surrogates the liberty to change their minds within a postpartum window.

Yet another reason for rejecting surrogacy is the judgment that surrogacy expresses the wrong sort of regard for one’s reproductive capacities. On this view, the surrogate sees her reproductive capacities as something to be used to produce a child for someone else rather than for her own parenting. It would be question begging to argue that surrogacy is wrong because it is wrong to use ones reproductive capacities for another—whether or not this use is wrong is exactly what is at issue. Radin, Anderson, and other writers argue that reproduction is alienated if the child is for another; the idea here is that reproduction must be linked to the intention to parent (even though there are circumstances such as wartime, privation, or disease in which it seems unlikely that the intention will come to fruition). For example, Stuart Oultram writes that “women who donate eggs arguably do so in an alienated way in so much as they donate to assist others rather than because they want to become parents themselves” (2015, p. 472). Christine Overall advances a similar point in arguing that surrogacy demonstrates inadequate levels of care for the child: “it must be acknowledged that the gestating woman creates the baby not because she wants it for its own sake but precisely in order to give it away; so her caring certainly has strict limits (2015, p. 354). And Carole Pateman (1988) argues that surrogacy is wrong because it detaches women from their reproductive identities.

Now, powerful reasons for linking reproduction to the intention to parent are protection of the resulting child or the parent–child relationship. It is unclear, however, why the parenting intention or the parent–child relation must lie between the gestating woman and the child she bears, and not between the child and the intended parents (notably even in cases in which they are the genetic parents of the child, having contributed the gametes used in in vitro fertilization, or in which neither the surrogate nor the intended parents are genetically related to the child because conception was achieved with a donated embryo). In any event, subsequent sections will take up regard for the child and regard for the parent–child relationship. Here, the issue is why reproduction would be problematic because it is not linked to the gestating woman’s own intention to parent and it is hard to see what an answer would be that is not simply a rejection of surrogacy.

A final possibility is that in becoming a surrogate, a woman compromises her own ability to have a meaningful conception of her good. Conceptual claims to this effect might be that having a child for another cannot be part of a meaningful conception of the good, or that intending to parent a child one bears must be part of a meaningful conception of one’s good. But it is hard to see why these claims are not question begging. Empirical versions of this concern would be that surrogacy is such a commitment that it precludes other activities that are critical to a meaningful conception of one’s good. If surrogacy compromised women’s later capabilities to form partnerships or families, or reduced the likelihood of surrogates pursuing educations or satisfying careers, this would indeed be a weighty concern. But there are ways of selecting surrogates that blunt this objection. Surrogacy could be limited to women who have already had children or to those whose partners consent—although either of these limits might themselves be regarded as impermissible restrictions on reproductive liberty. Moreover, many women become surrogates because they believe that surrogacy will further their conceptions of their good. With commercial surrogacy, women may engage in the practice to provide more than they would otherwise be able to for their own children, or to stay at home with their children rather than entering the workforce in other ways. Some women become surrogates in order to pay for their educations. To be sure, care must be taken that these arrangements are not exploitative. But in practice there surely are contexts in which surrogacy does not detract from and even furthers the surrogate’s well-formed conception of her good.

Surrogacy’s critics also argue that the practice is inevitably gendered, as it imposes the male intended parent’s preferences on the surrogate or compels his partner to raise another’s child. This objection, if it has purchase at all, applies most clearly to situations such as the Baby M case in which the traditional surrogate is artificially inseminated with the intended father’s sperm. Many surrogate pregnancies today involve the gametes of the intended parents or gametes from unrelated donors. In such cases, the genetic tie to the child may be as important to the female partner as to the male. Surrogacy is also a reproductive option for same-sex couples wanting to become parents through means other than adoption. Although surely some pregnancies and some surrogate pregnancies involve gendered pressures to have “his” child, it is by no means necessary for all or many surrogate pregnancies to do so. It would seem particularly odd to make this argument in the cases in which a woman’s oocyte and donated sperm are used, or gametes from neither intended parent are used, or the intended parents are a same-sex couple. At most, the concerns about gender hierarchy seem applicable to surrogacy using sperm from the male intended parent but donated oocytes, as might be the case for older couples seeking to become parents. But this would yield the odd result: that surrogacy is ethically problematic in just the case in which gametes of the male intended parent are used. A far more reasonable position is to screen and counsel surrogates and intended parents to do the best to assure that the choices of all parties are genuinely made in a manner free from pressure.

Surrogacy: The Child’s Interests and Identity

Surrogacy is about assisting in the creation of a baby for another. Many objections to surrogacy contend that it is “baby selling.” In noncommercial surrogacy, these objections do not hold, but other concerns about the baby may apply. Before turning to these other objections, however, it is important to unpack what might be the subject of sale in commercial surrogacy. Here are some possibilities: the child, rights of the child, rights over the child, or gestational services. It is generally agreed that the sale of a human being by another human being is wrong: it treats the person as a commodity, violates the person’s freedom and dignity, and likely subjects the person to oppression or worse. It also treats persons as fungible commodities, exchangeable for other commodities with more desirable characteristics if the price is right. Children are not fungible commodities and must not be treated as such, either by the producing surrogate or by the intended parents. Fabre draws the conclusion that the surrogate must regard the child as more than an object with exchange value, as must the receiving parents. This regard, she thinks, differentiates surrogacy from the case of a celebrity couple having a baby to sell it to the highest bidder, or of parents deciding to put an older child up for bids.

But if we distinguish such sales regarding the person as a fungible commodity—in which there is a paid transfer of all rights and duties over the person as object—from the sale of more particular rights of or over the person ( Fabre 2006 , p. 190; Hanna 2010 ), whether these other forms of sale are objectionable is more complex. Parenthetically, it should be noted that there are other cases in which the use value of a child is coupled with respect for the child in his or her own right. Consider the creation of so-called replacement babies for a child who has died ( Encyclopedia of Death and Dying 2016 ) or savior siblings for a child in need of stem cell replacement after high-dose chemotherapy ( Sheldon and Wilkinson 2003 ). Although these practices are ethically controversial, many contend that they are ethically permissible as long as the resulting child will be raised in a loving fashion.

The impermissibility of the sale of rights of the person depends on what those rights are and the process of sale. Many rights of persons—ordinary property rights, for example—are subject to sale at the discretion of the person. Other rights—liberty rights, rights to be a property owner, or rights to nondiscrimination—are judged on many political theories not to be alienable in this way. Commercial surrogacy presses whether the child’s right to particular parents could be subject to sale. But a core question about surrogacy is whether the child has a right to be raised by a gestational parent—or instead whether genetic or social ties are the basis for the child’s right to be parented by the persons with those ties. From the claim that the child has a right to be parented, or the weaker claim that the child has a right to be assured that his or her needs will be met and that she will be afforded the opportunities requisite for a meaningful life, it does not follow that the child has a right to be parented by her gestational parent. It would, of course, follow that the child’s rights to adequate parenting, welfare, or opportunities must be protected in any surrogacy arrangement and that surrogacy arrangements without such protections are impermissible.

An additional complication about the child’s rights is that children cannot act for themselves. This complication does not mean that rights of the child cannot be alienated, but it does mean that any alienation must be subject to conditions that protect the interests of the child and that hold open critically important choices for the child to make at a later time to the extent possible (e.g., Davis 1997 , Feinberg 1980 , Mills 2003 ). To be permissible, surrogacy arrangements must respect these constraints. In this regard, there is an important dispute about whether children should be told the circumstances of their conception or gestation, including information about the identity of gamete donors or surrogates. This issue is considered by Glenn Cohen’s contribution to this volume.

In commercial surrogacy, another possible object of sale is the gestating parent’s parental rights over the child. Elizabeth Anderson, for example, has argued that parental rights of genetic parents should not be bought or sold (1990, p. 79). In considering whether selling these rights is objectionable, it is worth noting that some sales of rights over persons may be permissible, depending on the context and the rights in question. Although most political philosophies agree it is wrong for persons to sell themselves into slavery, or to be sold into slavery, it is not so clear that it is wrong for people to buy themselves out of slavery or for others to do so on their behalf, thus extinguishing the rights of slaveholders. (Of course, this would only be an issue in partial compliance theory, as slavery itself is wrong.) Radin contends that it is wrong for parents to sell their rights to a child, because it is in effect selling the child (1987, p. 1904). But this raises the question whether sale of these particular rights over a child treats the child as an object of sale; I have argued earlier that it need not do so if the rights and interests of the child are protected.

Yet another possibility is that it wrongs the gestational parent for her parental rights to be subject to sale. Surely it does when the circumstances of sale are coercive, but it is a different question whether it does so in other cases. The preceding section argued that the sale of gestational services is not a wrong to the surrogate if it occurs in a context in which she is adequately protected. Such sales need not interfere with her liberty, her integrity, or her ability to lead a meaningful life if they are structured in ways that protect her adequately. Leaving for the next section whether commercial surrogacy appropriately respects the parent–child relationship, similar reasoning can be applied to the sale of parental rights.

A further question is whether the gestational surrogate has parental rights to sell or to give away in the first place. Why parental rights should attach exclusively or at all to the gestational parent is itself at issue in surrogacy. Elizabeth Anderson argued about traditional surrogacy that a “consent-intent” conceptualization of parenthood—that the intended parents are the possessors of parental rights—makes parenthood arbitrary. Instead, she argues for recognition of genetic ties as determinative of parenthood: in recognizing these ties, she says, “we help to secure children’s interests in having an assured place in the world, which is more firm than the wills of their parents … [it] does not make the obligation to care for those whom one has created (intentionally or not) contingent upon an arbitrary desire to do so” (1990, p. 79). This view, however, would vest parental rights in the surrogate only when she is the genetic parent, which she will not be in cases of gestational surrogacy where the genetic parents will either be the intended parents or donors. It would seem implausible to assume that vesting parental rights in this way will be most protective of children. This suggests that the determination of where to locate parental rights is a normative choice, constructed rather than determined by some “natural” feature such as gestation or genetics. For a variety of historical reasons, among them identifying stable sources of parenting for children, legal regimes have identified gestating women and their partners during gestation as the legal parents of the child, but there is nothing inevitable about this location. On the other side of gestational parenting is the argument that the failure to recognize the role of the intended parent devalues the role of persons in initiating reproductive projects ( Robertson 1996 ; see also Oultram 2015 ).

In addition to stable parenting and protection of the child’s interests, another issue that has been raised about surrogacy is the child’s identity. Understanding identity is far beyond the scope of this discussion, but it should be noted briefly that there are many different accounts of identity not at all linked to genetics or gestation. Especially important here are views of identity as social (e.g., Appiah 2014 , 2005 ). Such accounts may link identity to nation, culture, race, sex, disability, or religion, among other social constructions. To hold that children’s identity is violated if their genetic parents do not raise them is to ignore the complexity of these matters. And it is also, of course, to reject any reproduction in which gamete donation plays a part, as well as adoption. Children need identities, but it is far from clear that these must be identities constructed by their genetic parents.

The Relationship of Gestating

A final set of criticisms of surrogacy claims that it has a mistaken view of the parent–child relationship. The surrogate interacts with the baby in carrying it, these critics argue, and this relationship is not respected if the child is given away. In this respect, pregnancy is a unique form of labor. Overall writes: “The situation of a pregnant woman is radically different from the situation of a factory worker. The factory worker brings only his skill and labor to the factory; he does not provide the materials on which he labors or the environment in which he labors. The pregnant woman, on the other hand, is, herself, the environment in which her reproductive labor is performed. She also provides the materials out of which the child is created” ( Overall 2015 , p. 357). Earlier sections of this chapter have considered the interests of the surrogate and the child separately; the view to be explored here is that the pregnancy itself creates a relationship that is not properly respected by relinquishment of the child. On this view, there must be overriding reasons—such as the incapacity of gestators—to warrant sundering this relationship, but these reasons do not obtain in surrogacy.

But why should gestation be regarded as ethically weighty in this way? To be sure, 9 months of interaction with a fetus (assuming the pregnancy is carried to term) has effects on the woman’s body and emotions that must be taken into account. And the child in utero has experiences, too; there is evidence that after birth children respond in particular ways to prebirth experiences. These facts may be taken to have metaphysical significance, as Hilde Lindemann (this volume) explores. But whether these considerations yield the conclusion that the gestational relationship should have overriding ethical force is another matter.

This chapter has addressed objections to surrogacy that do not depend on exploitation or commercialization. It has argued that reasons offered for claims that surrogacy wrongs the surrogate, the resulting child, or the parent–child relationship would rule out other practices widely regarded as permissible, devalue the desire of infertile couples to become intended parents, or assume the impermissibility of surrogacy. The examination of these arguments does reveal important cautions about surrogacy, however. Care must be taken to assure that all parties are well informed as to risks. Both surrogates and intended parents must be carefully evaluated. Interests of the child in adequate parenting must be assured. Although payment for surrogacy is not per se problematic, exploitation is a risk of surrogacy; the protections in place today in at least some jurisdictions may not be adequate safeguards, especially when surrogacy is commercialized. Finally, protection of the woman’s choice about matters important to identity and relationships is a reason for giving her the option to relinquish any parental claims she might have after birth.

For example, Christine Overall (2014) has recently proposed a system of parental licensing for people using surrogates.

A symposium issue of the Washington Law Review published in December 2014 does consider whether commercial surrogacy should be more widely available in light of the decision of the US Supreme Court rejecting California’s ban on same-sex marriage. The contribution by David Orentlicher to this volume contains an excellent summary of state laws concerning surrogacy, including limits on traditional surrogacy and commercial surrogacy.

For an argument that legal preferences for gestational surrogacy mistakenly limit the liberty of surrogates and intended parents, and impose greater risks and costs on all parties, see Shapiro (2014) .

In the Matter of Baby M , 109 N.J. 396, 537 A.2d 1227 (N.J. 1988).

109 N.J. at 425.

Johnson v. Calvert , 19 Cal. Rptr.2d 494, 851 P. 2d 776 (Cal. 1993) (en banc).

851 P.2d at 784.

851 P.2d at 782.

851 P. 2d at 787.

A. W.H & P.W. v. G.H.B ., 339 N.J.Super. 495, 503 (2000).

In re T.J.S., 212 N.J. 334, 54 A.3d 263 (N.J. 2012).

Ibid. at 336 (Hoens, J., concurring) (per curiam).

Washington is an example, West’s RCWA 26.26.101, 26.26.230. By comparison, organ donation is another example of bodily use in service of another that many believe ought not to be commercialized, even leaving aside risks of exploitation; this view is implemented in the prohibition on organ sales in the United States and elsewhere.

Shapiro (2014) extends this fairness concern in arguing that compensation isn’t the important issue for feminist analysis of surrogacy; instead, power dynamics and exploitation are critical to judgments of forms of surrogacy.

For a discussion of the difference between use value and exchange value, see Dickenson , this volume.

Jeffrey Kirby (2014) explains why current transnational practices are coercive and how they might be rendered less so.

For an excellent discussion of protections for surrogates, see ASRM Ethics Committee 2013. Although ASRM requires its members to subscribe to the standards and principles of the Society, this does not prevent nonmembers from engaging in activities that ASRM would find unethical.

The European Society of Human Reproduction and Endocrinology, for example, takes the position that noncommercial surrogacy is the only permissible form of the practice, including payment for medical expenses not otherwise covered, expenses of pregnancy, and lost wages ( ESHRE Task Force 2005 ).

I owe this point to Judith Daar.

Rest. (2d) Contracts § 153.

Anderson, E.   1990 . Is women’s labor a commodity?   Philosophy & Public Affairs 19, no. 1: 71–92.

Google Scholar

Appiah, K. A.   2014 . Lines of descent: W.E.B. du Bois and the emergence of identity . Cambridge, MA: Harvard University Press.

Google Preview

Appiah, K. A.   2005 . The ethics of identity . Princeton, NJ: Princeton University Press.

Brown, D. X.   2003 . Nurses and preventable back injuries.   American Journal of Critical Care 12, no. 5: 400–401.

Davis, D.   1997 . Genetic dilemmas and the child’s right to an open future.   Hastings Center Report 27, no. 2: 7–15.

Encyclopedia of Death and Dying . 2016 . Replacement children,   Encyclopedia of Death and Dying , http://www.deathreference.com/Py-Se/Replacement-Children.html .

ESHRE Task Force on Ethics and Law. 2011 . Intrafamilial medically assisted reproduction.   Human Reproduction 26, no. 3: 504–509.

ESHRE Task Force on Ethics and Law. 2005 . Surrogacy.   Human Reproduction 20, no. 10: 2705–2707.

Ethics Committee of the American Society for Reproductive Medicine. 2013 . Consideration of the gestational carrier: A committee opinion.   Fertility & Sterility 99: 1838–1841.

Fabre, C.   2006 . Whose body is it anyway? Oxford, UK: Oxford University Press.

Feinberg, J.   1980 . The child’s right to an open future. In Whose child? Children’s rights, parental authority, and state power , ed. W. Aiken and H. LaFollette . Totowa, NJ: Rowman & Littlefield.

Hanna, J. K. M.   2010 . Revisiting child-based objections to commercial surrogacy.   Bioethics 24, no. 7: 341–347.

Harris, S. 2013. Injury, illness rates among nursing, residential care workers triple U.S. Average. http://www.shrm.org/hrdisciplines/safetysecurity/articles/pages/injury-illness-rates-nursing.aspx .

Jadva, V. , S. Imrie , and S. Golombok . 2014 . Surrogate mothers 10 years on: A longitudinal study of psychological well-being and relationships with the parents and child.   Human Reproduction 30, no. 2: 373–379.

Jadva, V. , C. Murray , E. Lycett , F. MacCallum , and S. Golombok . 2003 . Surrogacy: The experiences of surrogate mothers.   Human Reproduction 18: 2196–2204.

Kirby, J.   2014 . Transnational gestational surrogacy: Does it have to be exploitative?   American Journal of Bioethics 14, no. 5: 24–32.

Levine, C.   2005 . Acceptance, avoidance, and ambiguity: Conflicting social values about childhood disability.   Kennedy Institute of Ethics Journal 15, no. 4: 371–383.

Lindemann, H.   2009 . Holding one another (well, wrongly, clumsily) in a time of dementia. Metaphilosophy 40, no. 3–4: 416–424.

Mills, C.   2003 . The child’s right to an open future?   Journal of Social Philosophy 34, no. 4: 499–509.

Oultram, S.   2015 . One mum too few: Maternal status in host surrogate motherhood arrangements.   Journal of Medical Ethics 41, no. 6: 470-473.

Overall, C.   2015 . Reproductive ‘surrogacy’ and parental licensing.   Bioethics 29, no. 5: 353–361.

Pande, A.   2014 . Wombs in labor: Transnational commercial surrogacy in India . New York: Columbia University Press.

Pateman, C.   1988 . The sexual contract . Cambridge, UK: Polity Press.

Practice Committee of the American Society for Reproductive Medicine and Practice Committee of the Society for Assisted Reproduction Technology [ASRM Practice Committee]. 2015 . Recommendations for practices using gestational carriers: A committee opinion.   Fertility & Sterility 103, no. 1: e1–e8.

Radin, M. J.   1987 . Market-inalienability.   Harvard Law Review 100: 1849–1937.

Reichman, T. W. et al. 2011 . Living donor hepatectomy: The importance of the residual liver volume.   Liver Transplantation 17, no. 12: 1404–1411.

Robertson, J. A.   1996 . Children of choice: Freedom and the new reproductive technologies . Princeton, NJ: Princeton University Press.

Shapiro, J.   2014 . For a feminist considering surrogacy, is compensation really the key question?   Washington Law Review 89, no. 4: 1345–1373.

Sheldon, S. and S. Wilkinson . 2003 . Should selecting savior siblings be banned?   Journal of Medical Ethics 30, no. 6: 533–537.

Stevens, E. E. , T. E. Patrick , and R. Pickler . 2009 . A history of infant feeding.   Journal of Perinatal Education 18, no. 2: 32–39.

Thomson, J. J.   1971 . A defense of abortion.   Philosophy & Public Affairs 1, no. 1: 47-56.

van Zyl, L. and R. Walker . 2013 . Beyond altruistic and commercial contract motherhood: The professional model.   Bioethics 27, no. 7: 373–381.

• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Institutional account management
• Rights and permissions
• Get help with access
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

University of Birmingham

Surrogacy is often thought to be a ‘treatment’ option for the infertile or an alternative to adoption, and so to be celebrated in fulfilling people’s desires to be parents. However, surrogacy also brings a wealth of more complex ethical issues around gender, labour, payment, exploitation and inequality.

As a philosopher at the University of Birmingham, I am interested in ethical issues such as these. Further, as recently appointed Chair of Surrogacy UK’s  (SUK) Ethics Committee, I help the organisation think more about the ethics of their internal procedures and external public policies.

Take the issue of payment: surrogacy involves literal labour (physical and often emotional effort in both gestating and birthing). However, many see it as distinct from labour (working in a factory or teaching a class). This raises an ethical question around whether surrogacy is different from other kinds of paid work and, if it isn’t, shouldn’t we remunerate surrogates?

Some philosophers argue that surrogacy is unique when compared to other work. For instance, they claim that women are intimately connected to their reproductive capacities and bodies (so pregnancy and birth are special and should not be bought), or that being pregnant requires an unusual time commitment (unlike other kinds of work, the woman works for 24 hours a day, seven days a week, for nine months).

Others argue that there is equivalence to traditional work. Various occupations demand control over the body (ballerinas and astronauts are heavily controlled in what they can eat and how much they exercise, just as surrogates are) and longevity of work (writing a book can take longer than gestating and delivering a baby). All this work should be paid, so the argument goes.

In my own research, I have argued that what partly constitutes this difference is the ‘product’ of this labour. It is not an inanimate object, like a doll on a production line, or even a one-off performance by a ballerina. It is a living human child. The labour of the surrogate and the ‘result’ of the labour together put surrogacy at a different point on a spectrum of various types of ‘work’. To avoid concerns about commodification here, we should resist payment.

Ethics also come into play when thinking about the gendered nature of surrogacy and intended parenting. Biologically, the surrogate has to be someone with the capacity to gestate and give birth – usually a woman . As gendered labour, surrogacy triggers important feminist concerns, such as about bodily autonomy, vulnerability, inequality and rights.

For example, whether women who are surrogates maintain autonomy over their body when they are carrying a foetus for another individual or couple, or when decisions are being made about what happens to that foetus when there is disagreement. I think about the complexity of these sorts of questions and defend the importance of protecting and promoting women’s autonomy in my broader work on feminist conceptions of autonomy.

Intended parenthood raises feminist concerns too, such as on gendered roles and expectations. This includes whether women in particular feel that being mothers is critical to being ‘proper’ women (and hence why they might pursue surrogacy if they cannot carry their own children). Likewise, women might feel breastfeeding is what ‘real’ mothers (and women) do (and why intended mothers – ie, women who are not pregnant – might want to induce lactation).

Interestingly, at SUK’s annual conference in September, it was noted that lactation can be induced in men using a similar process as for non-pregnant women. ( It has been used for a transgender woman who wanted to breastfeed recently too .) For feminists worried about unequal gender roles in parenting in general, this could be further ammunition for dispelling myths about women as ‘natural’ carers because of their biological capacities.

A final ethical issue to mention is exploitation. The UK, Ukraine, US, Australia and India have different regulations about surrogacy. Some countries see the surrogate, while others the intended mother, as the legitimate mother. Some favour altruistic forms of surrogacy, while others allow commercial forms. Some countries give parental rights to intended parents before or at the birth of the child, while others only after six weeks.

There are good reasons to worry about a country-specific approach to surrogacy, as outlined in the recent Conversation article I wrote with my colleague, Dr Gulzaar Barn. In particular, the country-specific approach opens up the potential to exploit legal loopholes, intended parents, and, ultimately those doing the majority of the labour – surrogates.

Despite the inevitable difficulties of securing a global agreement, concerns about exploitation – of all parties, but especially the most vulnerable – provides a significant reason to push for a global approach to surrogacy arrangements.

These are just three ethical puzzles of surrogacy. All of the themes, and more beyond, require careful consideration since what we think about each is not just philosophically intriguing but is likely to have implications for how we believe our practice, laws and policy should be shaped. As the UK is currently reviewing its legislation on surrogacy , giving attentive thought to these issues is a particularly timely demand on all of us.

If you are interested in discussing such themes more, SUK is currently looking for members to serve on its Ethics Committee. For more information and details about how to apply, visit their website .

Featured staff

Dr Herjeet Marway

Academia.edu no longer supports Internet Explorer.

To browse Academia.edu and the wider internet faster and more securely, please take a few seconds to  upgrade your browser .

Enter the email address you signed up with and we'll email you a reset link.

• We're Hiring!
• Help Center

Ethical and philosophical issues arising from surrogate motherhood

2019, Fundamental and Legal Problems of surrogate motherhood. Global perspective, P. Mostowik (ed.)

Related Papers

THE MORALITY OF SURROGATE MOTHERHOOD (ISSUES IN CONTEMPORARY ETHICS)

Adaeze Best G. UkaChukwu

Surrogacy refers to a contract in which a woman carries a pregnancy 'for another couple'. Quite a number of infertile couples from all over the world approach places where commercial surrogacy is officially legal, especially India. Although, this arrangement appears to be beneficial for all parties concerned, there are no certain delicate issues which need to be addressed through carefully framed laws in order to protect the rights of the surrogate mother and the intended parents. In this paper, we try to examine the morality of surrogate motherhood. We examine the interpretation of a 'surrogate pregnancy' in the views and arguments put forward by ethicists, surrogate agencies and even surrogate mothers themselves. We also look at the implications of surrogacy.

Caucasian journal of science

Rukiye Türk

Italian Sociological Review

Debora Viviani

Undoubtedly, the title of this issue of Italian Sociological Review could be read as a dogmatic defense of the practice of surrogate motherhood as well as of gestational surrogacy – but it is not. On the contrary, this issue represents an attempt to give voice to the individuals and their ideas, representations and experiences about surrogacy rather than to social ideologies, ontologies or theories. Instead of judging – as an a priori assumption – that surrogacy is always bad , the articles outline the conditions thanks to which surrogacy can be a good way to have a child – or to help someone to have their child. [...]

Review of European Studies

Tatiana Izbienova

maria aluas

Surrogacy, nowadays considered a form of assisted reproductive technology (ART), has historical roots that can be traced to ancient times. Although surrogacy is still the exception rather than the rule when it comes to ARTs, its rising popularity has attracted the curiosity and concerns of the media and society, who were unfamiliar with it beforehand. The advent of the first baby born after in vitro fertilization conception in 1978 offered many opportunities for infertile couples wanting a child of their own, one of which was the possibility of resorting to a gestational or traditional surrogate mother, instead of relying solely on adoption. The purpose of this article is to analyze the morality of surrogate motherhood through three apparently contrasting ethical theories: kantian deontology, utilitarianism, the rawlsian theory of justice. We will try to apply these concepts to three famous surrogacy cases and analyze their strong and weak points. Abstract Introduction

ADEBANKE REBECCA ADEWUMI

Adebanke Adewumi

Having a child is the ultimate happiness in life. Surrogacy as one of the methods of assisted reproductive technology (ART) like other methods has provided solutions to the challenges faced by involuntarily childless especially couples who are financially buoyant. Existing social and health protection rights to the surrogate mother covers the rights of the child in surrogacy arrangements. This project critically examines the grounds that exists to statutorily regulate or streamline who could access or provide surrogacy services and to protect the best interests of the consumers and children that may result from accessing the procedures. The surrogacy agents from the clinic claim that most of the commissioning mothers had missing uterus. However, other reasons for the commissioning parents to opt for surrogacy includes long term illness like diabetes, dysfunctional sexual organ etc There are some legal and ethical issues arising from the surrogacy arrangements. It seems not to be ethical for someone to create a human life with the intention of relinquishing it. This appears to be the primary concern for surrogate arrangements since the surrogate mother is providing germinal material only upon the assurance that someone else will take responsibility for the child she helps to create. The surrogate mother provides her ovum with the clear understanding that she has to avoid responsibility for the life she creates and she has to dissociate herself from the child in exchange of some other benefit such as money. In such a way, at the deepest level surrogate arrangements cannot be viewed as ethical, because they involve a change in motive for giving birth for the sake of some other benefits (money). On the other hand, using a surrogacy service when the biological mother cannot bear the child is no more morally objectionable than employing others to help educate, train, or otherwise care for a child. This paper seeks to address the legal and ethical issues of surrogacy as a method of assisted reproductive technology and examines the relevant domestic and international legislations, instruments and cases on this issue. Having a child is the ultimate happiness in life. Surrogacy as one of the methods of assisted reproductive technology (ART) like other methods has provided solutions to the challenges faced by involuntarily childless especially couples who are financially buoyant. Existing social and health protection rights to the surrogate mother covers the rights of the child in surrogacy arrangements. This project critically examines the grounds that exists to statutorily regulate or streamline who could access or provide surrogacy services and to protect the best interests of the consumers and children that may result from accessing the procedures. The surrogacy agents from the clinic claim that most of the commissioning mothers had missing uterus. However, other reasons for the commissioning parents to opt for surrogacy includes long term illness like diabetes, dysfunctional sexual organ etc There are some legal and ethical issues arising from the surrogacy arrangements. It seems not to be ethical for someone to create a human life with the intention of relinquishing it. This appears to be the primary concern for surrogate arrangements since the surrogate mother is providing germinal material only upon the assurance that someone else will take responsibility for the child she helps to create. The surrogate mother provides her ovum with the clear understanding that she has to avoid responsibility for the life she creates and she has to dissociate herself from the child in exchange of some other benefit such as money. In such a way, at the deepest level surrogate arrangements cannot be viewed as ethical, because they involve a change in motive for giving birth for the sake of some other benefits (money). On the other hand, using a surrogacy service when the biological mother cannot bear the child is no more morally objectionable than employing others to help educate, train, or otherwise care for a child. This paper seeks to address the legal and ethical issues of surrogacy as a method of assisted reproductive technology and examines the relevant domestic and international legislations, instruments and cases on this issue. ABSTRACT Having a child is the ultimate happiness in life. Surrogacy as one of the methods of assisted reproductive technology (ART) like other methods has provided solutions to the challenges faced by involuntarily childless especially couples who are financially buoyant. Existing social and health protection rights to the surrogate mother covers the rights of the child in surrogacy arrangements. This project critically examines the grounds that exists to statutorily regulate or streamline who could access or provide surrogacy services and to protect the best interests of the consumers and children that may result from accessing the procedures. The surrogacy agents from the clinic claim that most of the commissioning mothers had missing uterus. However, other reasons for the commissioning parents to opt for surrogacy includes long term illness like diabetes, dysfunctional sexual organ etc There are some legal and ethical issues arising from the surrogacy arrangements. It seems not to be ethical for someone to create a human life with the intention of relinquishing it. This appears to be the primary concern for surrogate arrangements since the surrogate mother is providing germinal material only upon the assurance that someone else will take responsibility for the child she helps to create. The surrogate mother provides her ovum with the clear understanding that she has to avoid responsibility for the life she creates and she has to dissociate herself from the child in exchange of some other benefit such as money. In such a way, at the deepest level surrogate arrangements cannot be viewed as ethical, because they involve a change in motive for giving birth for the sake of some other benefits (money). On the other hand, using a surrogacy service when the biological mother cannot bear the child is no more morally objectionable than employing others to help educate, train, or otherwise care for a child. This paper seeks to address the legal and ethical issues of surrogacy as a method of assisted reproductive technology and examines the relevant domestic and international legislations, instruments and cases on this issue.

Tasneem Vanak

Liezl L van Zyl

Abstract The aim of this article is to establish whether there is anything intrinsically immoral about surrogacy arrangements from the perspective of the surrogate mother herself. Specific attention is paid to the claim that surrogacy is similar to prostitution in that it reduces women's reproductive labour to a form of alienated and/or dehumanized labour.

Journal Philosophy of Law

himmaturojuli rosyid ridlo

Uterine rental (Surrogate Mother) is where a woman makes a gestational agreement with a husband and wife. The surrogate mother is willing to bear the seeds of a married couple by receiving certain rewards. Uterine rental occurs because the wife can not conceive because of something that happened to her womb. This study uses normative law research methods using normative case studies in the form of legal behavior products by reviewing Law No. 36 of 2009 concerning Health, Government Regulation (PP) No. 61 of 2014 concerning Reproductive Health, the Civil Code, and Law No. 1 of 1974 concerning Marriage. The results of this study are 1. Uterine rental is a pregnancy outside the natural way that can only be done to married couples bound by a legal marriage and experience infertility or infertility to produce offspring 2. All forms of surrogate mother agreements in Indonesia are null and void because they contradict the existing laws and regulations. 3. A child born to a Surrogate Mother...

RELATED PAPERS

O Estado de São Paulo

Simon Schwartzman

Adinda Humaira Arizona

FEMS microbiology …

Sylvain Quessy

medicalforum.ch

Anna Wirz-justice

International Journal of Medical Research and Review

Sudhir Sane

Synergismus Scyentifica Utfpr

Letícia Cristina Antunes

African Handbook of Climate Change Adaptation

Danieli Reis

Masyarakat, Kebudayaan dan Politik

Mahdi Malawat

American Medical Informatics Association Annual Symposium

Cynthia Phelps

Zanipa Bekmambetova

Iqbal Djawad

Indian Journal of Forensic Medicine & Toxicology

jenan hussein

American Journal of Animal and Veterinary Sciences

Yael Filipiak

Research, Society and Development

Camila Menezes

African Journal of Tourism Hospitality and Leisure Studies

joseph njoroge

Donald Kester

Lori Eckhardt

Research Journal of …

zaini sakawi

tyghfg hjgfdfd

2018 IEEE 7th World Conference on Photovoltaic Energy Conversion (WCPEC) (A Joint Conference of 45th IEEE PVSC, 28th PVSEC & 34th EU PVSEC)

Fotis Mavromatakis

30_ FYCM _Mahesh Laware

Mathilde Poussin

Franklin Deiber Buitrago Echeverry

RELATED TOPICS

•   We're Hiring!
•   Help Center
• Find new research papers in:
• Health Sciences
• Earth Sciences
• Cognitive Science
• Mathematics
• Computer Science
• Academia ©2024

Does money affect the morality of surrogacy?

By J.Y. Lee.

Surrogacy is a form of third-party assisted reproduction involving a gestational carrier other than the intended parent(s). There are no globally recognized surrogacy laws, but countries around the world often frame the legality of the surrogacy arrangement in terms of whether it is commercial (paid) or altruistic (unpaid).

Of the nations that do not outright ban surrogacy, few permit commercial surrogacy. However, several countries – the United Kingdom, Portugal, and Denmark, to name a few examples – legally allow ‘altruistic’ surrogacies. What are the reasons for this? Common ethical concerns that make commercial surrogacy unpopular include the worry that potential surrogates would be exploited, especially in low and middle-income countries, and that it would commodify pregnancy and childbirth. These concerns are a major part of why India, once a global hub for commercial surrogacy, moved to outlaw it .

The general hope with banning commercial surrogacy might be that once money is taken out of the equation, only those who do not need the money and are motivated by purely ‘altruistic’ aims would volunteer to be surrogates, making the enterprise less morally sketchy on all sides. At least, this is my reading of why the commercial/altruistic distinction prevails – the legal distinction between the two would make sense if it is reasonable to presume that payment for surrogacy can be treated as a placeholder for the moral permissibility of surrogacy.

But is the latter true? In my recent JME article , I say that the commercial/altruistic distinction fails to adequately capture what is or isn’t morally legitimate about surrogacy. As the literature has already pointed out , for example, payment does not inherently corrupt a surrogate’s motivations; and emotional pressure (perhaps by a family member) for surrogates to provide the ‘gift’ of gestational labour is exploitative and oppressive in its own way. Thus, simply separating a paid arrangement from an unpaid one would fail to delineate the context-specific complexity of reasons, motivations, and relationships which do morally constitute whether we should or should not find such instances acceptable. So while concerns about commercial surrogacy may in many cases be well-founded, it strikes me as problematic – to say the least – to legislate for surrogacy on the basis of a heuristic as reductive as the commercial/altruistic dichotomy.

What would be a robust alternative to the commercial/altruistic framework? I go on to argue, in my article , for what I call a virtue-ethical approach to the moral assessment of surrogacy. A virtue ethics inspired framework moves away from the universalizing tendencies of many principlist approaches to bioethics and normative ethics. Instead, it pays special attention to the virtues and particulars of people – their moral dispositions, traits, and so on. My virtue-ethical approach rejects outright the notion that there is some one-size-fits all principle against which we can make moral evaluations of surrogacies. It seems to me to make much more sense, in processes as dynamic and as complicated as surrogacy, to judge not on the basis of whether the surrogate in question is paid or not paid, for example, but on whether the arrangement itself – and all the parties involved – exhibit certain virtue-abiding or non-virtue abiding features relevant for moral assessment.

The language of ethics around surrogacy can easily be captured by virtue considerations: justice, generosity, patience, and compassion all appear to be non-arbitrary details (‘virtues’) we can look for in a surrogacy arrangement to determine whether it is set up well and will be carried out in a morally acceptable way. We would have to ask questions about the multiple actors and their stakes: What is the relationship like between a commissioning parent and the surrogate in question? What moved a potential surrogate to agree to carry out gestational work in the particular instance? How have the parties’ interests and goals evolved throughout the process?

Figuring out answers to these kinds of questions would help us confirm whether the things we tend to intuit or suspect about surrogacies are actually true, or if we have rather missed morally relevant elements of the case as a result of posing payment as the primary proxy for morality. For example, finding out that a paid gestational surrogate commissioned by a gay couple was primarily driven by a desire to help advance their reproductive equality would probably shift negative assumptions about the distorting influence of money on that surrogate.

Of course, virtue considerations may not be sufficient to rule that a surrogacy arrangement is overall morally acceptable. Additional safeguards, like an adequate healthcare environment for the surrogate, is also morally relevant to consider – as would be the case, equally, for the commercial/altruistic model. What the virtue-ethical framework endeavours to do, however, is to enrich our moral approximations of surrogacy arrangements in ways that dichotomies about payment do not.

One might object at this stage that my moral account of surrogacy can hardly inform the legal status of surrogacy. I would maintain, however, that these insights speak in favour of reforms to authorize diverse kinds of virtue-abiding surrogacy arrangements. Although the commercial/altruistic dichotomy appears to have the advantage of simplicity – we can say ‘yes’ or ‘no’ to either one – it has the disadvantage of oversimplifying or even failing to recognize relevant moral variables at the policy level. The task that lies ahead of us for moving beyond the rather limiting commercial/altruistic dichotomy, therefore, is to take seriously the complexity of surrogacy and to open up dialogue about how the ethics between participating agents can be improved and consequently formalized.

Paper title : Surrogacy: Beyond the Commercial/Altruistic Distinction

Author: J. Y. Lee

Affiliations : University of Copenhagen

Competing interests : None declared

Social media accounts of post author:

Twitter – https://twitter.com/jyleephilosophy

Webpage – https://www.jyleephilosophy.com

Comment and Opinion | Open Debate

The views and opinions expressed on this site are solely those of the original authors. They do not necessarily represent the views of BMJ and should not be used to replace medical advice. Please see our full Blog Terms and Conditions .

All BMJ blog posts are posted under a CC-BY-NC licence

BMJ Journals

The Ethics of Surrogacy: Understanding the Surrogate Debate

Katharine Chan, MSc, BSc, PMP

From Khloé Kardashian to Chrissy Teigen, more and more celebrities are speaking openly about using surrogates to carry their children. This celebrity trend has prompted the topic of surrogacy to become more commonly discussed by the general public.

For those who struggle with infertility or face barriers in creating their families, this normalization of surrogacy has helped reduce the stigma around it. However, there remain ethical and moral factors that must be considered by intended parents before making this decision.

To help you make this important decision, we’ve laid out the ongoing debates surrounding the ethical issues of surrogacy. We will consider costs, fair pay for labor, surrogates’ rights, and other moral and societal stances around how we talk about and treat surrogates.

What is Surrogacy?

Surrogacy is a reproductive arrangement in which a woman, known as a surrogate or gestational carrier, becomes pregnant and carries a child for another individual or couple, known as the intended parents. There are two primary types of surrogacy:

• Traditional Surrogacy: In traditional surrogacy, the surrogate uses her own egg and is artificially inseminated with the sperm of the intended father or a donor. This means the surrogate is genetically related to the child she carries.  
• Gestational Surrogacy: In gestational surrogacy, the surrogate does not provide the egg. Instead, an embryo is created through In Vitro Fertilization (IVF) using the eggs of the intended mother or egg donor and the sperm of the intended father or sperm donor. The resulting embryo is then transferred to the surrogate’s uterus. The surrogate in gestational surrogacy is not genetically related to the child.

Surrogacy is often sought by individuals or couples who are unable to conceive and carry a pregnancy themselves due to various reasons, such as fertility issues, medical conditions, or same-sex couples.

Surrogacy is a complex process involving legal, medical, emotional, and ethical questions. The laws surrounding surrogacy vary by both country and state, and these laws can impact the rights and responsibilities of all parties involved.

Ethical Considerations of Surrogacy

Surrogacy is a complex and emotionally charged topic with several ethical and moral considerations. Here are some key points to consider:

Autonomy and Informed Consent

Surrogates must provide informed consent . It’s crucial to ensure that the surrogate fully understands what consent means including the process, risks, and potential emotional challenges. They should have the autonomy to make decisions about their bodies. It is important to have a  surrogacy contract that protects the rights and autonomy of the surrogate mother.

Intended parents must respect the autonomy and informed consent of the surrogate. They should ensure the surrogate fully understands the process, potential risks, and emotional challenges. All parties should willingly participate in the surrogacy arrangement.

Surrogacy Costs

Surrogacy is costly; it can be unaffordable for those with limited financial resources and/or lower socioeconomic situations.

We spoke with  Jeff Hu , Director of  SurrogateFirst about the costs of surrogacy in the USA. He explained that the financial burden of surrogacy is the biggest challenge for intended parents. Most intended parents will be under budget, resulting in even more financial stress down the road.

Hu shared that currently, there aren’t many options in terms of financing from traditional lenders.

“There is a lack of assistance in the form of private scholarships or financial support from the government and employers are not providing sufficient infertility benefits to their employees,” explained Hu.

Hu shared that the cost of surrogacy ranges between $150,000 to $200,000. This includes the following:

• Medical care (IVF cycles, medical clearance, doctor visits)
• Total compensation of the surrogate (including base compensation and variable costs)
• Egg donation if necessary (egg donor compensation and agency fee)
• Professional services (surrogacy agency fee, lawyers, psychological review)
• Insurances (health and life)

“The cost variations are based on the intended parents’ requirements as well as the number of transfers it takes to conceive and have a healthy delivery,” explained Hu.

Compensation for the Surrogate

Surrogates are often compensated for their time, effort, and the physical demands of pregnancy. Hu explains that surrogates are paid for more than just carrying a baby. Compensation is comprised of cash-based compensation, benefits and other circumstantial occurrences.

“Surrogates are compensated for the time and effort it takes to qualify to become a surrogate, and the pain and suffering it takes to carry a full-term pregnancy; as well as to be protected from any medical costs and potential loss (of life or reproductive function),” adds Hu.

Ethical concerns can arise if the compensation is perceived as  exploiting the financial vulnerability of the surrogate and/or making  pregnancy and childbirth a commodity . This could compromise the voluntariness of the agreement.

The Journal of Medical Ethics discusses how  altruistic surrogacy (unpaid surrogacy) and commercial surrogacy (paid surrogacy) affect the morality of the practice. The journal argues that if  commercial surrogacy were to be eliminated, the ethical issues surrounding surrogacy may be reduced. Individuals who chose to become surrogates would be “motivated by purely ‘altruistic’ aims,” rather than driven by money.

Surrogate’s Health and Well-being

Intended parents have a responsibility to protect the surrogate’s physical and emotional well-being throughout the pregnancy. Ethical surrogacy contracts should include safeguards to protect the surrogate’s health and ensure proper  prenatal care , address  health concerns , and be prepared for potential complications.

Surrogates may face long-term emotional, psychological, or physical impacts from the surrogacy process. Ethical surrogacy considers these potential long-term consequences and offers support.

Surrogate’s Rights and Decisions About Their Body

Surrogates should have the right to make decisions about their bodies. Ethical surrogacy respects a woman’s right to decide when and how to become pregnant and carry a child.

Intended parents should treat the surrogate mother with respect and dignity. This includes valuing her as a partner in the surrogacy journey, recognizing her sacrifices, and providing emotional support.

Hu provides an example of the surrogate’s decision to be vaccinated:

“[Vaccination] has now become a standard question to confirm upfront with the surrogate. Again, it is 100% the decision of the surrogate to determine. Some intended parents and clinics require mandatory vaccination to become medically cleared, and some do not.”

Pregnancy Termination

What happens if there are complications during the pregnancy or concerns about the health of the child?

Hu shares that asking the surrogate about their termination stance and having a clear understanding of this is crucial before finding an intended parent match.

“It is 100% the surrogate’s decision if they have a No Termination stance or if they will leave it to the doctor’s discretion if medically necessary, or if they allow termination at the full discretion of the intended parents,” he explains.

Relationship with the Child and Future Considerations

Some surrogacy arrangements involve traditional surrogacy where the surrogate’s own egg is used. In such cases, the surrogate may have a biological connection to the child. Ethical concerns can arise about the  surrogate’s relationship with the child .

Honesty and transparency are crucial. Intended parents should be forthright about their intentions, including their desires for a relationship between the surrogate and the child, if any.

Intended parents should also think about the long-term consequences of surrogacy, including how they will explain the surrogacy to the child, family, and friends.

Legal Protections and Parental Rights

Surrogacy laws vary from one place to another. Ethical surrogacy ensures that the intended parents have the legal rights to the child, and the surrogate has the right to make decisions about her health and body. Ethical surrogacy should take place within a legal framework that protects the rights and interests of all parties involved.

It’s important to approach surrogacy with a deep understanding of the ethical considerations and to work with professionals who are experienced in surrogacy law and ethical practices. This helps ensure that surrogacy is carried out in a way that respects the rights and well-being of all involved.

Ethical Decision Making

Intended parents should make ethical decisions before starting the surrogacy process. They should consider the best interests of the child, the surrogate, and themselves.

Hu shares some of the moral questions and ethical decisions that intended parents must consider before starting their surrogacy journey:

• Is surrogacy socially acceptable?
• Should surrogacy be reserved based on medical needs?
• Is it okay to pursue surrogacy to protect your career and/or to not suffer the pain and physical aspects of pregnancy?
• Is it okay to pay someone else to have a baby for me?
• Should surrogacy be a last resort and used only when the individual or couple can not physically carry due to medical reasons or if they are a same-sex couple?

Intended parents need to approach surrogacy with a deep sense of responsibility, respect, and ethical awareness. Working with experienced professionals, such as attorneys, surrogacy agencies, and mental health experts, can help navigate the ethical considerations involved in surrogacy to ensure that the process is conducted in an ethically sound manner.

Blazier, J., & Janssens, R. (2020). Regulating the International Surrogacy market: the Ethics of Commercial Surrogacy in the Netherlands and India. Medicine, Health Care and Philosophy , 23 . https://doi.org/10.1007/s11019-020-09976-x

Marway, H. (2018, September 27). The ethics of surrogacy . University of Birmingham. https://www.birmingham.ac.uk/news-archive/2018/the-ethics-of-surrogacy-1

Oakley, J. (1992, October 1). ALTRUISTIC SURROGACY AND INFORMED CONSENT. Bioethics; Wiley-Blackwell. https://doi.org/10.1111/j.1467-8519.1992.tb00206.x

Saxena, P., Mishra, A., & Malik, S. (2012). Surrogacy: Ethical and Legal Issues. Indian Journal of Community Medicine , 37 (4), 211. https://doi.org/10.4103/0970-0218.103466

Surrogacy Contracts - American Surrogacy. (n.d.). https://www.americansurrogacy.com/parents/surrogacy-laws-surrogacy-contracts

van Niekerk, A., & van Zyl, L. (1995). The ethics of surrogacy: women’s reproductive labour. Journal of Medical Ethics , 21 (6), 345–349. https://doi.org/10.1136/jme.21.6.345

Zohny, H. (2022, April 11). Does money affect the morality of surrogacy? Journal of Medical Ethics Blog. https://blogs.bmj.com/medical-ethics/2022/04/11/does-money-affect-the-morality-of-surrogacy/

About Katharine

Subscribe to family education.

Your partner in parenting from baby name inspiration to college planning.

Regulating the international surrogacy market:the ethics of commercial surrogacy in the Netherlands and India

• Review Article
• Open access
• Published: 14 September 2020
• Volume 23 , pages 621–630, ( 2020 )

Cite this article

You have full access to this open access article

• Jaden Blazier 1 &
• Rien Janssens   ORCID: orcid.org/0000-0001-9503-7575 2  

16k Accesses

9 Citations

30 Altmetric

Explore all metrics

It is unclear what proper remuneration for surrogacy is, since countries disagree and both commercial and altruistic surrogacy have ethical drawbacks. In the presence of cross-border surrogacy, these ethical drawbacks are exacerbated. In this article, we explore what would be ethical remuneration for surrogacy, and suggest regulations for how to ensure this in the international context. A normative ethical analysis of commercial surrogacy is conducted. Various arguments against commercial surrogacy are explored, such as exploitation and commodification of surrogates, reproductive capacities, and the child. We argue that, although commodification and exploitation can occur, these problems are not specific to surrogacy but should be understood in the broader context of an unequal world. Moreover, at least some of these arguments are based on symbolic rhetoric or they lack knowledge of real-world experiences. In line with this critique we argue that commercial surrogacy can be justified, but how and under what circumstances depends on the context. Surrogates should be paid a sufficient amount and regulations should be in order. In this article, the Netherlands and India (where commercial surrogacy was legal until 2015) are case examples of contexts that differ in many respects. In both contexts, surrogacy can be seen as a legitimate form of work, which requires the same wage and safety standards as other forms of labor. Payments for surrogacy need to be high enough to avoid exploitation by underpayment, which can be established by the mechanisms of either minimum wage (in high income countries such as the Netherlands), or Fair-Trade guidelines (in lower-middle income countries such as India). An international treaty governing commercial surrogacy should be in place, and local professional bodies to protect the interests of surrogates should be required. Commercial surrogacy should be permitted across the globe, which would also reduce the need for intended parents to seek surrogacy services abroad.

Similar content being viewed by others

Should we Maintain or Break Confidentiality? The Choices Made by Social Researchers in the Context of Law Violation and Harm

Semiotics of legal transplants: exploring domestic violence justice in uzbekistan, the creation of the belmont report and its effect on ethical principles: a historical study.

Avoid common mistakes on your manuscript.

Introduction

Surrogacy occurs when a woman gestates and gives birth to a child for the intended parents. Footnote 1 The surrogacy process is beneficial for parents who are unable to procreate, but it is riddled with ethical challenges. Where surrogacy is permitted, a subject of ongoing debate is the question of proper remuneration for surrogates. Surrogacy remuneration generally comes in two forms: altruistic (unpaid) surrogacy and commercial (paid) surrogacy. In an altruistic arrangement, the surrogate may not be compensated above and beyond expenses related to the pregnancy. The surrogate is entirely motivated by altruism, to help an infertile couple fulfill their wish for a child (Caelers 2001 ; Leeton et al. 1988 ). In a commercial arrangement, the surrogate is paid a fee on top of direct expenses. Often an agency is involved in matching up surrogates to intended parents and making sure the whole process runs smoothly. While most countries only allow altruistic surrogacy, or ban surrogacy altogether, commercial surrogacy is ever-present. Further, legislative and cost disparity between nations creates room for cross-border surrogacy (CBS), which is when people travel to other nations to access surrogacy services. While the debate about remuneration for surrogacy has been going on for a few decades, many countries have still not addressed the issue or are reconsidering their laws. Further, CBS has increased by large amounts in recent years (Merchant 2018 ), but international legislation (agreements, treaties, etc.) have not followed (Humbyrd 2009 ).

Both commercial and altruistic surrogacy have ethical drawbacks. Lack of payment could be exploitative (Wertheimer 1992 ; Wilkinson 2003 ) and could restrict reproductive autonomy (Andrews 1988 ; Lawrence 1991 ). However, paying someone to carry a child and subsequently give it up might also be wrong because of the possibility of exploitation by coercion (Wilkinson 2018 ) and commodification of reproductive labor, women, and children (Anderson 1990 ; Holder 1984 ; Radin 1987 ; Sandel 2013 ; Timms 2018 ). CBS exacerbates these ethical issues, especially when the intended parents are from a high-income country (HIC) and the surrogate is from a low- or middle-income country (LMIC). As predicted in Gena Corea’s 1985 dystopic novel The Mother Machine, CBS is criticized as a practice in which the bodies of poor women from developing countries are routinely instrumentalized for the benefit of richer people in the developed world, and for the profit of the global fertility industry (Gupta 2012 ). Most scholars agree that there are ethical issues with international commercial surrogacy, but whether or not the commercial aspect is the problem is up for debate (Spar 2005 ; Wilkinson 2003 ). Critics of commercial surrogacy tend to draw on negative imagery and symbolic rhetoric to paint a picture of commercial surrogacy as inherently unethical, without addressing ethical issues systematically (Andrews 1988 ). Meanwhile, ethical analyses of commercial surrogacy tend to make normative claims using theoretical, western ethics, without invoking analyses of the real-world experiences of surrogates in non-western countries (Bailey 2011 ). To find a middle ground between these extremes, we conduct an ethical analysis of this issue, taking into account the effect of context on what ethical remuneration would be. This provides insight into what kind of action is necessary from HICs, and LMICs, in order to mitigate ethical issues surrounding remuneration in the international surrogacy market. Following the publication of a letter of the Indian Ministry of Home Affairs in 2015, CBS was prohibited in India, but until then CBS was widely prevalent in the country. It is therefore, and also since there is more documentation on the Indian context than there is on other countries allowing CBS, that we choose India as case example, despite the 2015 ban.

The Netherlands and India as case examples

The Netherlands is a classic example of a western country which prohibits commercial surrogacy, only allowing altruistic surrogacy under strict-conditions (Boele-Woelki and Vonk 2012 ). Despite the aversion of the government towards commercial surrogacy, there has been discussion about loosening restrictions in the Netherlands, in part to prevent Dutch intended parents from going abroad to access surrogacy. The 2016 report from the Staatscommissie Herijking Ouderschap (Government Committee on the Reassessment of Parenthood, from now on GCRP) included a proposal for legislative change, including a statutory framework for surrogacy, which would make surrogacy easier to do, and would allow surrogates to be paid a maximum of €500 per month (on top of expenses). In 2019, the Dutch minister of Legal Protection responded to the report, rejecting the suggestions from the GCRP for allowing paid surrogacy (“Dutch government reaction to recommendations of GCRP 2019 ; Ministry of Justice and Security. 2019 ). This demonstrates the ongoing uncertainty over whether or how much surrogates should be paid, in part because of the rise of CBS.

Up until 2015, India was a particularly popular destination for CBS. India legalized surrogacy in 2002 in order to promote surrogacy tourism, as a part of its growing market for medical tourism (Gupta 2012 ; Shetty 2012 ; Vincent and Aftandilian 2013 ). 13 years later, regulations were introduced and CBS was prohibited. Up until then, clinics were free to do as they wish (Shetty 2012 ). Earlier guidelines from the Ministry of Health and Family Welfare, which were put forth in 2008 by the Indian Council of Medical Research, were not binding and were accused of promoting ART rather than regulating it (Bailey 2011 ; Vincent and Aftandilian 2013 ). Up until recently, the profit-seeking mechanisms governing the fertility industry, in the context of widespread poverty, could have created a situation where exploitation and commodification of women were more likely (Vincent and Aftandilian 2013 ; Timms 2018 ). For these reasons, prohibitions on commercial surrogacy were suggested (Gupta 2012 ). In 2015 the ministry’s letter mentioned above effectively put an end to commercial surrogacy and CBS. In 2016 a ‘surrogacy regulation bill’ was issued by the Lok Sabha, the lower house of the Indian parliament. After the bill lapsed that same year, the Lok Sabha passed it in 2019. The bill now awaits passing by the Rajiya Sabha, the higher house of the parliament. Only after the higher house passes the bill will it become national law. It prohibits foreign nationals from commissioning surrogacy in India and exclusively reserves surrogacy for Indian, heterosexual, sub-fertile couples with a minimum of five years of marriage who will engage in an altruistic arrangement (Timms 2018 ). Below, we claim that it is not clear that the issues leading to the ban are inherently tied to the commercial aspect of surrogacy, demonstrating the need for a thorough ethical analysis. Instead of prohibiting commercial surrogacy and CBS outright, we propose regulations in order to prevent exploitation and commodification.

Is commercial surrogacy inherently wrong? an ethical analysis

The exploitation argument against commercial surrogacy.

It is argued that paying women for surrogacy is exploitative. If it is exploitative, then, one uses a surrogate as a means unjustly or under conditions such that the surrogate does not consent (at least not validly) (Wertheimer 1992 ). For a surrogate to be unjustly used as a means, the effects on her welfare must be more negative than justice allows, which could mean the surrogate is harmed, or that she does not benefit sufficiently (Wilkinson 2003 ). Clearly harm to the surrogate is not the issue in this argument, since altruistic surrogacy is still seen as acceptable. Then, the surrogate may be unjustly used as a means if she is underpaid, which would occur if the physical and psychological risks to the surrogate are not properly compensated in relation to the benefit to the intended parents. This would mean the exploitation argument actually favors commercial surrogacy and higher payments to surrogates over altruistic surrogacy. But even with commercial surrogacy, exploitation by underpayment can happen. In India, the surrogate’s altruistic motivations and maternal duties used to be continually reiterated by surrogacy brokers to intimidate her to not demand higher payments or voice her concerns (Dabriak et al. 2007 ; Gupta 2012 ; Pande 2010 ). There was unequal bargaining power between the wealthier intended parents and the poor (and sometimes illiterate) surrogate (Lee 2009 ). Surrogacy contracts involved cross border clients and Indian slum-dwellers, giving rise to extreme polarization (Timms 2018 ). Regulations requiring sufficient, fair payments to surrogates would solve this problem.

Of course, the focus of the exploitation argument against commercial surrogacy is not that surrogates are underpaid. Exploitation, they argue, still occurs if the validity of consent is compromised by the coercive effect of the payment (Wilkinson 2003 ). If the pay is too high, there is a risk that surrogacy would become too attractive and poor women would become surrogates out of desperation for money (Brazier et al. 1998 ). This was particularly relevant in India where most Indian surrogates used to say that they were primarily financially motivated (Pande 2009 ). This is in contrast to the U.S., where surrogates (even those in commercial arrangements) cite altruism as their primary motivation (Ragoné 1994 ; Ciccarelli and Beckman 2005 ; Jadva et al. 2003 ). This worry of wrongful financial inducement is widespread. But, if a payment induces the desire to become a surrogate, it does not immediately follow that it is exploitation. If one makes a decision to do something merely because it will benefit her, which is the case for nearly all jobs that a person might accept, this doesn’t lead us to conclude that we should not pay her for that job or that we should pay her less (Crozier 2010 ; Humbyrd 2009 ; Wilkinson 2003 ). Coercion generally means that one threatens to make another worse off if they do not perform some act (Wertheimer 1992 ). Paying someone who voluntarily chooses to be a surrogate does not fall under this category. But, omissive coercion, Wilkinson adds, occurs when someone threatens to not benefit someone in a way that they are owed, unless they perform some act ( 2003 ). Since society, or the state, likely owes a woman some standard of welfare (survival at the minimum), and if surrogacy or something worse is the only way to achieve that standard, then she is essentially threatened with starvation if she doesn’t do it (Wilkinson 2003 ). Then, her consent would be invalidated by the fact that she is coerced into being a surrogate to get benefits which she is owed regardless, which would be exploitation.

However, as Wilkinson points out, any transaction could in principle be exploitative. The question is whether or not there is something inherent to surrogacy that makes it necessarily exploitative (Wilkinson 2003 ). This does not seem to be true, since even in the case of exploitative surrogacy given above, it is no more exploitative than other low-paying jobs like factory work (Crozier 2010 ; Humbyrd 2009 ; Wilkinson 2003 ). One could argue that surrogacy is different from other jobs because of the increased physical and psychological risk associated with surrogacy. But, this implies the assumption that women cannot weigh the risks of surrogacy against the benefits of payment (Humbyrd 2009 ), and it does not take into account the risks associated with poverty or with other jobs available to them (Purdy 1989 ). As one Indian surrogate explained in an interview (before the 2015 regulations were put in place), “This is not exploitation. Crushing glass for 15 h a day [earning $25 a month] is exploitation” (Haworth 2007 ).

If societal circumstances create a situation in which a person must resort to a job that they otherwise wouldn’t, then banning that option only makes the person worse off (Spar 2005 ; Wilkinson 2003 ). Instead of constraining poor women further, we should work to provide them with adequate social services and more options on the labor market so that their other alternatives might be more appealing than something dangerous or harmful (Andrews 1988 ; Crozier 2010 ). Lupton agrees, commenting, “[T]hose who are outraged by this approach should bear in mind that this is the natural consequence of an unequal society, and if we cannot save people from being poor it makes no sense to stop them from making sacrifices to alleviate their situation merely because we are appalled at the nature of those sacrifices” ( 1986 , p. 151). It then becomes clear that the exploitation issue arises not because of the nature of commercial surrogacy, but because of the nature of an unequal society.

The commodification argument against commercial surrogacy

Even if a surrogate is not exploited, because she freely consents to this option and is well-paid, it has been argued that commercial surrogacy is still wrong because it improperly treats reproductive labor, women, and children as commodities (Anderson 1990 ; Holder 1984 ; Radin 1987 ; Sandel 2013 ). We address these three forms of commodification separately. In general, if it would be unethical to apply market norms to the production, exchange, and use of a good, then it is not a commodity, and to treat it as such is to value it inappropriately, which degrades or corrupts it (Anderson 1990 ).

Commodification of women’s reproductive labor

Anderson argues that women’s reproductive labor is improperly treated as a commodity in commercial surrogacy, because the surrogate’s labor is alienated ( 1990 ). According to Anderson, the proper end of a pregnancy is an emotional bond between the mother and the baby, and so paying her to repress the formation of that relationship is wrong ( 1990 ). We would respond that it is clear that commercial surrogacy commodifies reproductive labor, but it is not clear that there is anything ethically problematic about this. Other kinds of labor are commodified, and this is not deemed as improper commodification. The argument that women’s reproductive labor is different in a relevant way rests on norms about what the proper ends of pregnancy and childbirth are—that the bond between a woman and the baby she births is somehow sacred or untouchable. But, those norms are either derived from some social convention (which could be countered with other social conventions) or from its essential nature (which rests on some metaphysical or religious view) neither of which hold (Sandel 2013 ). It is an example of an argument that rests on symbolic rhetoric rather than logical argumentation or evidence.

Clearly there is no way to be sure that reproductive labor is special in some way such that it is degraded if it is commodified. As Spar points out, this is merely an assertion, not a fact ( 2005 ). If moral limits to the market do exist, there should be good reasons for drawing the line in a particular place, and there are not good reasons for excluding reproductive labor from the market domain.

Commodification of women

It is well-established that human beings themselves are degraded if they are commodified. This rests on the Kantian argument that humans have an inherent dignity which must be respected, and in order to respect it, humans must be treated as ends in themselves, never as a means only. Anderson (and others) argue that commercial surrogacy commodifies—and therefore degrades—women themselves. One way this occurs is through the manipulation of the surrogate to the point of dehumanizing her (Anderson 1990 ). Pande has illustrated this trend in her reports from research interviews with surrogates in India. Before the 2015 ban, the surrogates were often restrained in hostels, where their eating, drinking, and exercise was overseen by the hostel leaders, and they were allowed to see their family once a week or less (Pande 2010 ). They were psychologically manipulated by being repeatedly told that they were disposable wombs, merely vessels for carrying the fetuses, that they should not form a bond with the child and would not be allowed to even look at the child after giving birth (Pande 2010 ). They had little say over what happened to them and their bodies throughout the surrogacy process, which reflected a gross disregard for their autonomy (Gupta 2012 ; Vincent and Aftandilian 2013 ). This manipulation and control of surrogates was done for the commercial benefit of the brokers, who made more money if they were able to produce a healthy child for the intended parents without any setbacks (Bailey 2011 ; Gupta 2012 ).

This kind of dehumanizing treatment of surrogates is degrading to women, since their interests and ends are not respected. It was the main reason for the Indian government to issue the 2015 letter. But, even though we agree self-evidently with the Indian authorities that degrading and manipulating women is unethical and should be stopped, we must ask the question whether this is a necessary consequence of commercial surrogacy? If commercial surrogacy can occur in HIC’s such as the U.S. without restraining the autonomy of surrogates and treating them as disposable resources, the same should be possible in India and around the globe. Surrogates were degraded by the rhetoric used by the hostel leaders and brokers, not the surrogacy process itself. The problem stems from the profit-seeking mechanisms governing the industry. While leaving the market totally subject to free-market norms may undoubtedly lead to a lack of respect for the interests of surrogates, regulations to ensure their interests are respected (rather than prohibition) could solve this.

Commodification of children

Anderson further argues that surrogacy improperly treats children as commodities. The surrogate creates the child with the intention to give it up, for monetary advantage, in the interests of herself rather than those of the child (Anderson 1990 ). Sandel agrees that there is something wrong with commercial surrogacy since it is analogous to baby-selling ( 2013 ). In the famous case of Baby M, in which the surrogate claimed that she had rights to the child after giving birth, the supreme court of New Jersey (U.S.A.) invalidated the contract on the grounds that it was “the sale of a child, or at the very least, the sale of a mother’s right to her child…There are, in a civilized society, some things that money cannot buy” (Matter of Baby M 1988 , p. 1248).

This is another argument based on symbolic rhetoric rather than logical argumentation or evidence. Supporters of commercial surrogacy respond by resisting this analogy. They argue that the payment is only for the time, effort, pain, and risk that the surrogate undergoes in carrying and giving birth to the child (Lawrence 1991 ). This can be ensured by requiring that the surrogate is paid each month, regardless of the outcome of the pregnancy (as suggested by the GCRP in the Netherlands). Since the pregnancy is planned by both parties who have the child’s best interests at heart, then it is not the same as the sale of an existing unwanted child (Lupton 1986 ). Paying other people for services that enable one to create and deliver one’s (own) child is a normal part of procreation; one might also pay a doctor to deliver fertility hormones, artificially inseminate, or perform a needed C-section (Andrews 1988 ). Accordingly, there is no evidence to suggest that parents treat their children as products or commodities after paying for surrogacy (Tong 1990 ).

Even if children are not being bought and sold per se, part of the aversion to commercial surrogacy is the cultural conception that children are priceless, and that it is therefore distasteful to place a monetary value on them (Ragoné 1994 ). Altruism (thus, the gift rhetoric) seems like the only appropriate way to handle the exchange of something priceless (Shaw 2007 ). This, too, is an argument based in symbolic rhetoric rather than logical arguments or evidence. Payment and altruistic motivation are not mutually exclusive (Van Zyl and Walker 2013 ). So, the pricelessness of children can still be honored by altruistic intention even if the surrogate is paid.

Benefits of commercial surrogacy

Avoiding exploitation by underpayment.

Most opponents to commercial surrogacy still find altruistic surrogacy to be acceptable, or even praiseworthy (Annas 1988 ). While the image of a surrogate as a selfless, altruistic saint is heartwarming, it can lead one to be blinded to the ethical issues with altruistic surrogacy. Not paying surrogates for the risks and labor involved in surrogacy is arguably exploitative (Van Zyl and Walker 2015 ). The surrogate’s gift is so substantial, in the sense that it causes a lot of pain and discomfort, and also in the sense that it creates a human child. To not reciprocate in some way could potentially subject her to self-sacrifice (Van Zyl and Walker 2013 ). Self-sacrifice is morally unacceptable because it reinforces the idea that the needs of the intended parents are more important than those of the surrogate, which is exploitative (Badcock 1986 ).

Viewing surrogacy as a gift relationship can also “obscure, or at least shifts the attention away from, the fact that the [surrogate] incurs a number of obligations towards the intending parents and the [fetus]” (Van Zyl and Walker, 2013 , p. 376). The intended parents may feel uncomfortable voicing their concerns since the surrogate is giving them such a substantial gift. On the other hand, if the surrogate takes her moral obligations seriously, then she is at the mercy of the intended parents (Van Zyl and Walker, 2013 ). This relationship, if solely based on trust, can be dangerous. Further, if the surrogate’s motivations are defined as purely altruistic, then it serves to reduce her bargaining power (Drabiak et al. 2007 ). Commercial surrogacy, when properly regulated, involves a contract which stipulates all the rights and responsibilities of each party, making it clear that the surrogate cannot harm the fetus, and that she deserves adequate compensation for her labor (Van Zyl and Walker 2015 ). This is not to say that altruistic surrogacy is inherently unethical, but, altruistic surrogacy as the required format is problematic. The option to draw up a contract and receive adequate payment should be made available to every surrogate, and if she voluntarily turns down payment, that is of course her privilege.

Autonomy of intended parents and surrogate

Commercial surrogacy is one way of creating the opportunity for intended parents to fulfill their wish for a child. This supports the concept of procreative choice or autonomy, a right protected by the Californian constitution, for example (Lawrence 1991 ). The fact that intended parents go to such lengths to engage in CBS and recruit surrogates in other countries, which can be risky, is a testament to the strength of their desire to procreate. Respecting autonomy would mean facilitating this desire in a safe way. It is apparent that, in many countries, restrictions on accessing assisted reproductive services are discriminatory towards people who are unmarried and/or LGBTQ + . The 2019 surrogacy regulation bill in India includes such restrictions, which demonstrates that the law is not only intended to protect surrogates but also to restrict procreative autonomy. Allowing commercial surrogacy for all desiring parents, and with it some kind of agency that recruits surrogates and pairs them with intended parents, would make it far easier for intended parents to achieve their procreative plans.

Allowing commercial surrogacy also promotes the autonomy of surrogates. It is sexist and paternalistic to assume that women cannot make the decision to engage in certain practices for money (Andrews 1988 ). It is therefore ironic that feminists have argued against commercial surrogacy on the basis of harm to women, when it has been central to the feminist movement “that women have a right to reproductive choice—to be able to contracept, abort, or get pregnant… to control their bodies during pregnancy... to create non-traditional family structures… These rights should not be overridden by possible symbolic harms or speculative risks” (Andrews 1988 , p. 73).

The assertion that commercial surrogacy promotes autonomy for surrogates might seem contradictory to the claim that Indian surrogates are more likely to have their autonomy restricted by surrogacy brokers and economic duress. This is why we stress the importance of context in assessing the ethicality of commercial surrogacy. Bailey makes a good point that extending western moral frameworks, particularly those that focus on autonomy, choice, and liberalism, can erase or distort the experiences of subjects in non-western countries who may not place the same value on concepts like autonomy ( 2011 ). Pande points out that most Indian surrogates, up until 2015, in fact, downplayed the role of choice in their decision to become surrogates, by saying it is their motherly/familial duty ( 2010 ). While this may serve to minimize their role as money-makers for their family, it is one form of resistance that reinforces their self-worth (Pande 2010 ). Further, what might be viewed by outsiders as autonomy-restricting prisons, the surrogacy hostels were also seen as safe spaces where surrogates ccould gain skills for future employment, build networks with the women around them, and use their combined power to protect each other’s interests (Pande 2010 ). Many Indian surrogates also found the surrogacy process to be empowering, even if only because they could make enough money to lift themselves and their families out of poverty (Spar 2005 ). This is an important illustration of the complexity of the real-life experiences of surrogates, demonstrating that parts of their story may contain oppression and others empowerment. By engaging with the first-hand narrative of surrogates in India, prohibition of commercial surrogacy does not necessarily follow. Rather, proper regulations could have the potential to ensure that Indian surrogates are empowered rather than oppressed.

Regulating payments for surrogacy in different contexts

Surrogacy as labor.

We have argued that it is not wrong to commodify women’s reproductive labor, and one of the reasons surrogates are exploited and wrongly commodified is because surrogacy is not treated as a legitimate form of labor. In India, where surrogacy used to be referred to as prostitution and stigmatized, the surrogates often had to hide the fact that they were becoming surrogates from their extended families and communities, and they reiterated their altruistic intentions and duties to avoid being considered selfish (Pande 2010 ). If reproductive work were seen as a legitimate avenue for earning money, the stigma and instrumentalization would be reduced. Surrogates might be viewed more like healthcare workers or temporary guardians than dehumanized incubators (Humbyrd 2009 ).

Van Zyl and Walker argue that the issues with altruistic and commercial surrogacy can be addressed by using the professional model ( 2013 ). In this model, it is accepted that surrogates might be motivated by their desire to offer a worthwhile service while still expecting to be paid. Professionals, such as teachers and nurses, share a strong ethical dimension to their work (Carr 1999 ), which requires them to harbor some internal motivation (beyond payment alone) to perform their job well. Surrogacy also contains this ethical dimension, which is one reason it is suitable to consider it a profession. Then protections can be granted by regulatory bodies that oversee surrogacy, similar to those overseeing other professions. But, professional unions would not be enough to govern surrogacy in the international market. Internationally upheld regulations to ensure surrogates are protected and well-paid in all places are necessary.

Ethical payment in the Netherlands: minimum wage

In the Netherlands, the GCRP suggests that a fair maximum payment would be €500 per month, on top of immediate expenses, amounting to about €5000 total. This amount was calculated as a scaled-up version of what egg donors are paid for their time and effort in the Netherlands, which is €900 for one donation cycle. However, that number is not necessarily sufficient. In the U.S., surrogates are paid between US$10,000 and $40,000, while U.S. egg donors are paid around $4000 for one cycle (Covington and Gibbons, 2007 ). The egg donation payment guidelines were originally set as a scaled-up version of sperm donor compensation of $75–$100 per sperm sample (Krawiec 2014 ). Then, the compensation level for surrogates is arbitrary because it is far removed from the original deciding factor (the amount of time spent on a sperm donation).

The problem is that the discussion operates around a maximum payment in the first place. It has been established that coercion by high payment is possible in places with extreme financial inequality and lack of support for the very poor, but even in those situations, paying them less would actually be more exploitative. In the Netherlands, social welfare programs are adequate and background conditions are relatively fair. If we accept that surrogacy is a legitimate form of work, in line with the professional model proposed by (van Zyl and Walker 2013 ), then a minimum wage needs to be honored.

But, the GCRP still wants to keep surrogacy altruistic, while establishing the maximum payment per month as a suitable gift for reciprocating the altruism of the surrogate. It appears that the Dutch conception that surrogates should not be paid a livable wage stems from the concept – whether social, metaphysical, or religious—that reproductive labor is somehow special, and so it should not be commodified like other kinds of labor. But, as we have seen, this argument has no logical or evidential basis. Since underpayment is the only relevant ethical issue in the Netherlands, surrogates should be paid full-time minimum wage for every month that they are engaged in the surrogacy process—that includes the time before and after the pregnancy during which they undergo medical appointments, implantation, recovery, etc. Of course, this does not take into consideration the fact that the labor of surrogates occurs 24 h per day, not only during an 8-h workday. But, given that a surrogate can for the most part continue to do other activities during the pregnancy, it seems that full time (8-h per day) minimum wage would be sufficient to honor her efforts, since it would be the same amount she could make if she were to work a different job during this time. In the Netherlands, the minimum wage for persons over 22 years old is about €1600 per month (January 2019), which would result in a minimum payment of about €16,000 total for the pregnancy (equivalent to almost US$18,000).

In addition to paying the surrogates well, additional requirements for the protection of surrogates need to be in place to prevent ethical problems unrelated to payment. The GCRP suggests requirements such as independent legal representation for the surrogate, insurance policies (including life insurance) to be taken out in case of harm to the surrogate and/or to the intended parents, psychological/medical screening of the surrogate, and required counseling for the surrogate, before, during, and after the pregnancy (GCRP 2016 , Ch. 11.4).

Ethical payment in India: fair trade

Unethical payment by brokers and other third parties, who profited themselves as much as possible but exploited the surrogates paying them only a minimum amount of money, was a main reason for the Indian authorities to ban commercial surrogacy (cfr. Timms 2018 ). We agree with the authorities and other spokespeople that exploitation by third parties is unethical and should be stopped, but not by prohibiting commercial surrogacy outright. Ensuring ethical payment and treatment of surrogates in India, and other LMICs, is complicated but not impossible. CBS makes it unclear how much surrogates should be paid since the value of the payment is different for the intended parents than for the surrogate. While minimum wage might be an appropriate mechanism to ensure fair wages for surrogates in the Netherlands, it is not sufficient in India and many other LMICs. This is because minimum wage in India varies by region and industry, and some industries do not adhere to a minimum wage, such as the apparel and footwear industries (U.S. Department of State 2008 ). For example, the minimum wage for agriculture workers in Maharashtra, is only 100 INR (US$1.40) per day Footnote 2 (GOI 2015 ), and 33% of India was making less than $1.25 per day in 2010 (Marriner 2012 ). This is remarkably low, considering that the international poverty line, under which a person is considered to be in extreme poverty, is US$1.90 per day (United Nations Sustainable Development Goals (SDGs). 2019 ). Finding solutions for widespread poverty and low wage-rates is beyond the scope of this paper, but exploitation should be avoided wherever possible. Particularly in the case of outsourced labor, workers in LMICs are exploited when they are paid much lower real wage rates Footnote 3 than workers in HICs would be paid for the same work. These are the issues with the fertility industry that need to be addressed in regulating payments to surrogates.

One mechanism that is widely utilized to avoid exploitation of workers in the global labor market, particularly in the agriculture industry, is Fair Trade. According to The World Fair Trade Organization (World Fair Trade Organization (WFTO), 2017 ): "Fair Trade is a trading partnership, based on dialogue, transparency and respect, that seeks greater equity in international trade. It contributes to sustainable development by offering better trading conditions to, and securing the rights of, marginalized producers and workers—especially in the South.” Humbyrd suggests extending the mechanisms of Fair Trade to the international surrogacy market ( 2009 ).

The first principle of Fair Trade that is addressed by Humbyrd is payment of a fair price. This requires equivalent real wage rates to what surrogates are paid elsewhere, payments that are a justifiable proportion of what the fertility clinic/broker makes from the surrogacy, and payments given regardless of the outcome of the pregnancy. Fair payment, according to the WFTO, is at least the Local Living Wage. This minimum requirement to meet the principle of fair payment is in line with our suggestion of requiring minimum wage in HICs, which is (at least in principle) calculated in accordance with the cost of living in those HICs. Most surrogates in India were already paid more than a local living wage. Most of them made in 10 months as a surrogate more than they would have otherwise made in 3–15 years of work (Gupta 2012 ). The average amount of $5000 earned by a surrogate in India comes out to over 12 × the above-poverty-level wage of $1.90 per day.

However, Fair Trade is still necessary, since a living wage is not the only factor that makes it a fair wage. It also needs to be a “freely negotiated and mutually agreed wage,” and it needs to represent an “equitable share of the final price paid to each player in the supply chain” (WTFO). This means it is necessary that surrogates are a part of the discussion about how much they are going to be paid, which was not happening in India when commercial surrogacy was legal (Singh 2014 ). Regulations should require that the contract is translated and that direct interaction with the intended parents is permitted and facilitated. There should be a third-party organization, such as a professional union, which can process complaints from surrogates and can provide independent legal protection of surrogates, at the expense of the intended parents (Vincent and Aftandilian 2013 ). A fair wage also means that profits to clinics and brokers must not be raked in without sufficient benefit to the surrogates, and so some percentage of the total payment should be ensured to the surrogate. If a third-party protects the surrogates’ interests, payments to surrogates will occur regardless of the outcome of the pregnancy, and if her ability to negotiate her wage is ensured, then attempts to reduce the surrogate’s agency by instrumentalizing her will have no place.

Humbyrd suggests making Fair Trade a strict requirement for international surrogacy, which can be enforced through checks within the immigration system that must be utilized to bring home a child born to a surrogate abroad ( 2009 ). We agree with Humbyrd’s suggestion, but we think it should be extended such that the requirements are in place even within LMICs, not just for the case of CBS. This is why we have suggested, in line with Vincent and Aftandilian, a third-party organization which protects the surrogates’ interests within the country, and membership to this organization should be a requirement for becoming a surrogate (much like a professional union), and the costs would have to be paid by the intended parents. Because it is precisely the diversity of how different countries handle surrogacy remuneration that drives this practice abroad, Spar is right in suggesting an international agreement, which could extend principles from the Hague Convention on intercountry adoption ( 2005 ).

Remaining issues ‘beyond the money’

As we have discussed, there is a form of exploitation that occurs when surrogates are coerced into becoming surrogates by their desperate financial situation. It has been established that this is not an issue inherent to surrogacy, but an issue with an unequal society (and by extension, global inequalities). One reality in India is that inequality is racially stratified, and people (especially women) with darker skin or those in “lower” castes are systematically disadvantaged (Singh 2014 ). The trend of outsourcing labor to poor countries occurs along race and class lines and thus perpetuates those distinctions on a global scale. International commercial surrogacy continues to be intertwined with unfair and racist background conditions globally, and this is not solved by regulating payments or surrogacy itself.

Bailey suggests using a reproductive justice approach in order to start the conversation about how to mitigate these ethical issues ( 2011 ). Reproductive justice does not necessarily have to come from the governments of individual countries. An international treaty governing commercial surrogacy can also require that part of the payment from intended parents goes towards capacity building and global projects in reducing inequality, maybe through the professional bodies that would oversee the regulation of surrogacy. This would hopefully open up more options for women so that the choice to become a surrogate can be freer. Allowing commercial surrogacy across nations would open up the possibility of finding a surrogate in any country, preferably one’s own country. Instead of banning commercial surrogacy outright and reserving surrogacy for Indian couples only, opening up commercial surrogacy globally might be a good alternative in order to avoid unethical exploitation. Then, given the better conditions for surrogates offered by other countries, surrogacy markets in LMIC’s might be pressured to reform, in a way that goes above and beyond the ability of outside regulation to reform it. So, while we do not find cross-border commercial surrogacy to be unethical in itself, we do think the remaining issues with the practice could be mitigated through the process of homogenizing the regulations across the world, which would in turn reduce CBS.

Commercial surrogacy is not inherently unethical, but it can lead to certain issues that need to be addressed through regulations, and context is important in addressing those ethical issues. Exploitation by coercion is not an issue with commercial surrogacy but an issue with an unequal society/world, and it occurs in all forms of low-paying labor (particularly outsourced labor). Banning commercial surrogacy would not solve this, since it would only remove this opportunity for women to alleviate their poverty. The problem that needs to be addressed instead is the desperate nature of their decisions, which must be done through broader efforts to reduce inequality. Commodification of women’s reproductive labor is a non-issue. The claim that it is degrading to pay women for this kind of labor rests only on symbolic or religious norms and not logical or evidential ones. Commodification of children is a non-issue in surrogacy because payment for the reproductive labor is necessarily different from payments for existing children. The commodification of women is an issue that needs to be addressed, particularly where women are instrumentalized by the physical and mental manipulation that treats them as disposable resources for the benefit of the fertility industry. However, it is possible to respect the interests and ends of surrogates by treating them as laborers rather than non-human resources, given specific regulations.

Not only is commercial surrogacy justifiable when properly regulated, it can also be beneficial. It avoids the issue of exploitation by underpayment and it creates clarity in the obligations of both parties. It promotes reproductive autonomy of intended parents and empowers surrogates to choose what to do with their bodies and to profit from this choice. Commercial surrogacy should be properly regulated as a legitimate form of labor. We have suggested following the professional model for surrogacy. The surrogates’ interests and negotiating power should be protected by a local, independent professional body which they are required to join. Surrogates should be paid well, and payments should be given at regular intervals across the period of surrogacy and irrespective of the outcome. What counts as just payment depends on the context. In HICs such as the Netherlands, full time minimum wage is sufficient to ensure that surrogates are compensated for their work. In LMICs such as India, minimum-wage may not be sufficient, given that it is sometimes non-existent or below poverty-level, so the mechanism of Fair Trade should instead be used. This would mean that the surrogacy industry should be required to pay surrogates a fair living wage for their region, equivalent to the real-wage rate of what surrogates in the west are paid. The wage should be mutually agreed upon and freely negotiated, and the surrogate should get a fair portion of the payment paid to the agency/broker. This would avoid exploitation by underpayment. These requirements would also mitigate the wrongful commodification of women, since it would no longer be permitted, nor beneficial, to downplay their role as agents with interests. An international treaty that requires countries to regulate their surrogacy markets to protect surrogates, in line with minimum-wage or Fair Trade, is necessary. By opening up commercial surrogacy to the world, intended parents would be less likely to engage in CBS, and so self-regulation of the market will occur in combination with outside regulations. This legitimization of the surrogacy market and regulation to avoid exploitation and commodification of surrogates can go hand in hand with the reproductive justice approach, which would give women more agency in their lives so that their decision to become surrogates can be as free as possible.

“Intended parents” refers to the party that recruits a surrogate to have a child for them, but this party may be a single person or a couple of any gender. This party is also known as the commissioning parents (particularly for commercial surrogacy), the desiring parents, or the wish-parents.

One of the reasons minimum wages are lower in particular industries is because of the inability of those industries to pay more, and regional differences are in part due to differences in cost of living (ILO 2018 ).

The real wage rate is adjusted for purchasing power, what can be bought in goods and services, with some amount of money, while the nominal wage rate is the actual amount in U.S. dollars.

Anderson, E.S. 1990. Is Women’s labor a commodity? Philosophy and Public Affairs 19 (1): 71–92.

Google Scholar  

Andrews, L.B. 1988. Surrogate motherhood: The challenge for feminists. The Journal of Law, Medicine and Ethics 16 (1–2): 72–80.

Annas, G.J. 1988. At law: Death without dignity for commercial surrogacy: The case of baby M. The Hastings Center Report 18 (2): 21–24.

Badcock, C.R. 1986. The problem of altruism: Freudian-Darwinian solutions . Oxford: Basil Blackwell.

Bailey, A. 2011. Reconceiving surrogacy: Toward a reproductive justice account of Indian surrogacy. Hypatia 26 (4): 715–741.

Boele-Woelki, K., and M.J. Vonk. 2012. Surrogacy and same-sex couples in the Netherlands. In Legal recognition of same-sex relationships in Europe: National, cross-border and European perspectives , ed. K. Boele-Woelki and M.J. Vonk, 123–139. Cambridge: Intersentia.

Brazier, M., A. Campbell and S. Golombok. 1998. Surrogacy: Review for health ministers of current arrangements for payments and regulation.  London: Department of health . https://webarchive.nationalarchives.gov.uk/+/www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_4009697 . Accessed 20 May, 2019.

Caelers, D. 2001. Rent-free wombs a labour of love. The Star 5: 247–248.

Carr, D. 1999. Professional education and professional ethics: right to die or duty to live? Journal of Applied Philosophy 16 (1): 33–46.

Ciccarelli, J.C., and L.J. Beckman. 2005. Navigating rough waters: an overview of psychological aspects of surrogacy. Journal of Social Issues 61 (1): 21–43.

Crozier, G.K.D. 2010. Protecting cross-border providers of ova and surrogacy services? Global Social Policy 10 (3): 299–303.

Covington, S.N., and W.E. Gibbons. 2007. What is happening to the price of eggs? Fertility and Sterility 87 (5): 1001–1004.

Drabiak, K., C. Wegner, V. Fredland, and P.R. Helft. 2007. Ethics, law, and commercial surrogacy: A call for uniformity. Journal of Law, Medicine and Ethics 35 (2): 300–309.

Dutch government reaction to recommendations of GCRP, July 12 2019. The hague: Ministry of justice and safety. https://fiom.nl/sites/default/files/kabinetsbriefshoek-verzendversie.pdf (in Dutch). Accessed 24 February, 2020

GCRP (The Government Committee on the Reassessment of Parenthood). 2016. Kind en Ouders in de 21st Eeuw: Rapport van de staatscommissie herijking ouderschap . The Hague: Ministry of Justice and Safety.

GOI (Government of India). 2015. Report on the working of the Minimum Wages Act, 1948 for the year 2013 . Chandigarh: Ministry of Labour and Employment.

Gupta, J.A. 2012. Reproductive biocrossings: Indian egg donors and surrogates in the globalized fertility market. International Journal of Feminist Approaches to Bioethics 5 (April): 25–51.

Haworth, A. 2007. Surrogate mothers: Womb for rent. Marie Claire . July 2007. https://www.marieclaire.com/world-reports/news/surrogate-mothers-india . Accessed 20 May, 2019.

Holder, A.R. 1984. Surrogate motherhood: babies for fun and profit. Law, Medicine and Health Care 12 (3): 115–117.

Humbyrd, C. 2009. Fair trade international surrogacy. Developing World Bioethics 9 (3): 111–118.

ILO (International Labor Organization). 2018. India wage report: Wage policies for decent work and inclusive growth . Geneva: ILO.

Jadva, V., C. Murray, E. Lycett, F. MacCallum, and S. Golombok. 2003. Surrogacy: the experiences of surrogate mothers. Human reproduction 18 (10): 2196–2204.

Krawiec, K.D. 2014. Egg-donor price fixing and Kamakahi v. American society for reproductive medicine. AMA Journal of Ethics 16 (1): 57–62.

Lawrence, D.E. 1991. Surrogacy in California: Genetic and gestational Rights. Golden Gate University Law Review 21: 525–557.

Lee, R.L. 2009. New trends in global outsourcing or commercial surrogacy: A call for regulation. Hastings Women's Law Journal 20: 275.

Leeton, J., C. King, and J. Harman. 1988. Sister-sister in vitro fertilization surrogate pregnancy with donor sperm: The case for surrogate gestational pregnancy. Journal of in Vitro Fertilization and Embryo Transfer 5 (5): 245–248.

Lupton, M.L. 1986. Surrogate parenting, the advantages and disadvantages. Journal for Juridical Science 11 (2): 148–157.

Marriner, C. 2012. Booming surrogacy demand sparks exploitation fears. Sydney Morning Herald . September 2012. https://www.smh.com.au/national/boomingsurrogacy-demand-sparks-exploitation-fears-20120901-25742.html . Accessed 20 May, 2019.

Matter of Baby M. 1988. 537 Atlantic reporter, 2nd series, New Jersey 1227 

Merchant, J. 2018. Lecture: surrogacy legal options and prohibitions Europe/United States . Barcelona, Spain: ESHRE.

Ministry of justice and security. Surrogate mothers. The Hague: Government of the Netherlands. https://www.government.nl/topics/surrogate-mothers/ . Accessed 18 Feb, 2019.

Pande, A. 2009. Not an “angel”, not a “whore”. Indian Journal of Gender Studies 16 (2): 141–173.

Pande, A. 2010. Commercial surrogacy in India: Manufacturing a perfect mother-worker. Signs: Journal of Women in Culture and Society 35 (4): 969–992.

Purdy, L.M. 1989. Surrogate mothering: exploitation or empowerment? Bioethics 3 (1): 18.

Radin, M.J. 1987. Market-inalienability. Harvard Law Review 100 (8): 1849–1937.

Ragoné, H. 1994. Surrogate motherhood: Conception in the heart . Boulder: Westview Press.

Sandel, M. 2013. What money can’t buy: The moral limits of markets . London: Penguin.

Shaw, R. 2007. The gift-exchange and reciprocity of women in donor-assisted conception. The Sociological Review 55 (2): 293–310.

Shetty, P. 2012. India’s unregulated surrogacy industry. The Lancet 380 (9854): 1633–1634.

Singh, H.D. 2014. “The world’s back womb?”: Commercial surrogacy and infertility inequalities in India. American Anthropologist 116 (4): 824–828.

Spar, D.L. 2005. For love and money: The political economy of commercial surrogacy. Review of International Political Economy 12 (2): 287–309.

Timms, O. 2018. Ending commercial surrogacy in India: Significance of the surrogacy (regulation) bill, 2016. Indian Journal of Medical Ethics 3 (2): 99–102.

Tong, R. 1990. The overdue death of a feminist chameleon: Taking a stand on surrogacy arrangements. Journal of social philosophy 21 (2–3): 40–56.

U.S. Department of State. (2008). Country reports on human rights practices. Washington, DC. https://www.state.gov/g/drl/rls/hrrpt/2007/100614.htm Accessed 10 May, 2019.

United Nations Sustainable development goals (SDGs). https://www.un.org/sustainabledevelopment/poverty/ Accessed 20 May, 2019.

Van Zyl, L., and R. Walker. 2013. Beyond altruistic and commercial contract motherhood: The professional model. Bioethics 27 (7): 373–381.

Van Zyl, L., and R. Walker. 2015. Surrogacy, compensation, and legal parentage: Against the adoption model. Journal of Bioethical Inquiry 12 (3): 383–387.

Vincent, C., and A.D. Aftandilian. 2013. Liberation or exploitation: commercial surrogacy and the Indian surrogate. Suffolk Transnational Law Review 36: 671.

Wertheimer, A. 1992. Two questions about surrogacy and exploitation. Philosophy and Public Affairs 21 (3): 211–239.

Wilkinson, S. 2003. The exploitation argument against commercial surrogacy. Bioethics 17 (2): 169–187.

Wilkinson, S. 2018. Lecture: surrogacy: ethical issues . Barcelona, Spain: ESHRE.

World fair trade organization (WFTO). (2017). Who we are. Culemborg, the Netherlands. https://wfto.com/who-we-are Accessed 20 May, 2019.

Download references

Author information

Authors and affiliations.

Philosophy, Bioethics, and Health, Vrije Universiteit, Amsterdam, The Netherlands

Jaden Blazier

Dept. of Medical Humanities, Amsterdam University Medical Center, Location VU Medical Center, PO Box 7057, 1007MB, Amsterdam, The Netherlands

Rien Janssens

You can also search for this author in PubMed   Google Scholar

Corresponding author

Correspondence to Rien Janssens .

Additional information

Publisher's note.

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/ .

Reprints and permissions

About this article

Blazier, J., Janssens, R. Regulating the international surrogacy market:the ethics of commercial surrogacy in the Netherlands and India. Med Health Care and Philos 23 , 621–630 (2020). https://doi.org/10.1007/s11019-020-09976-x

Download citation

Accepted : 27 August 2020

Published : 14 September 2020

Issue Date : December 2020

DOI : https://doi.org/10.1007/s11019-020-09976-x

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Ommercial surrogacy
• Exploitation
• Commodification
• Find a journal
• Publish with us
• Track your research

Physician Assistant Student

Group Essay – Ethics of Surrogacy

The Ethical Complications to Surrogacy and How PA’s Can Facilitate it. 

By: Mosammat Alam, Lingqiao Chen, Daniel Crosby, Tiffany Liang, and Sophia Lobo

HPPA 514: Biomedical Ethics

Prof. Bridget McGarry

July 14, 2021

Introduction

Surrogacy has become a popular option for the LGBTQ community and families facing infertility or other conception related issues. While it provides a solution to many, the key issues arise from the lack of centralized guidelines that dictate these practices and the role of the physician in moderating these situations. Oftentimes, problems arise when individuals involved either break their contract or come across an issue not previously addressed in their contracts. The laws for surrogacy vary by state, with many having little to no guidelines to monitor these procedures. New York, for instance, has legalized and set specific guidelines on gestational surrogacy as recently as February 2021 (“The Child-Parent Security Act: Gestational Surrogacy”). What we propose is a more centralized system to facilitate surrogate practices, based on medical collaboration with legal protocols to guide the interest of the intended parents, surrogate, and fetus. 

Standardized Screening Process & Care – A Medicine Centered Approach

    The first step to starting the surrogacy process is finding a suitable surrogate mother.  Some families already have a personal connection while others may use a surrogacy agency. Currently, surrogacy agencies exist as full or partial-service establishments. A full-service agency is responsible for the screening, matching, delivery, and return-to-home plans with legal and clinical coordinations. A partial-service agency provides only some of these services with less step-by-step guidance (Mello, 2019). The main complication with these varying pathways to finding a surrogate mother is a disjunctive process with no central oversight. There is a lack of protocol in determining if a surrogate mother is suitable for carrying a baby to full-term and delivery. Furthermore, over ten percent of gestational surrogates are not properly informed of the risk of multiple pregnancies and the demands on their body (White, 2017). This presents with the issue of a lack of informed consent by both the surrogate mother and intended parents before proceeding with the contract. For this reason, the medical community can play a crucial role in developing a standardized screening plan for potential surrogacy mothers. 

    A thorough medical screening process should be implemented before a surrogate mother is cleared to carry a child to minimize health complications and provide concise documentation in case of legal ramifications as seen in Johnson vs. Calvert lawsuit of Orange County. In this case, the couple sued the surrogate mother for concealing pregnancy complications that included several miscarriages and alleged that the agency failed to perform a proper background check of the mother (NeJaime, 2017). There are two sides to this case. First, the agency failed to conduct a thorough background check and standardized screening tests to ensure that the mother was healthy to proceed. Second, the lack of documentation of health status failed to protect the surrogate mother and agency in the event that they are sued on an unfounded basis. 

To better protect the legal rights of the surrogate mother, health of the fetus, and expectations of the intended parents, a standardized screening process should consist of a mental health status exam and complete physical exam. A thorough past medical and social history should also be obtained and documented. This would ensure that the mother is in full mental and physical status to proceed with the pregnancy and has the capacity to comply with healthy practices. Ultimately, the medical provider holds the responsibility to ensure that these screening tests are performed. A physician should not perform implantation until the documentation of a completed screening test is provided. 

Creating Uniform Federal Guidelines 

As surrogacy presents with such intricate and personal matters and inevitable complications, we must turn to laws and regulations to resolve them. Unfortunately, the laws guiding the process are not always clear cut and currently vary among agencies, states, and countries. This makes it even harder to maneuver the various roadblocks that may occur. 

In the United States, surrogacy laws are determined at the state level. In “Green Light” states, such as California and Connecticut, surrogacy is permitted for all parents, pre-birth orders are permissible, and the names of both parents are included on the birth certificate. “Yellow Light ” states such as Tennessee and Idaho, allow surrogacy, but present with legal limitations. For example, in Indiana, another yellow light state, surrogacy contracts are not enforceable but some courts have granted pre-birth orders for intended parents, which establish the intended parents as the baby’s legal parents (Trolice, et al., 2019). Lastly, “Red Light” states such as Michigan and Louisiana completely prohibit compensated surrogacy, only allow altruistic surrogacies, and deem anything beyond those limits a criminal offense. For instance, intended parents in Michigan can be fined up to $50,000 and imposed a penalty of up to one year imprisonment. Surrogacy arrangements are so restricted in Louisiana that it is limited to married heterosexual couples (Gonzalez, 2019). 

Because the surrogacy industry is still relatively new, many U.S. laws have room for improvement and must keep up with other ongoing advancements in medicine.  There are a number of factors and variables that can complicate surrogacy law, so it is extremely important to work with an assisted reproduction attorney in the state where surrogacy is taking place (Radcliff, 2019). Currently, the absence of federal surrogacy laws and competing views can impede transparency and obscure predictability. The establishment of federal regulations with medical committee advice can oversee surrogate agencies, offering clearer and more consistent guidance to the legal and medical terrains of surrogacy.

Rights of the Intended Parents

To further complicate matters, there is a difference between traditional and gestational surrogacy. In traditional surrogacy, the surrogate mother is artificially inseminated with the sperm of the intended father. In gestational surrogacy, a fertilized embryo of the intended parents is implanted in the surrogate mother. The child is not genetically related to the surrogate mother. This is a legally complex process that is carried out based on the contract between the intended parents and the surrogate to define the difference between legal and biological parents.

 The contract lists out the roles and responsibilities of each party involved in the surrogate process and outlines the expected behavior of the surrogate during pregnancy. In the event where the surrogate mother violates the agreement, the obstetrician faces the dilemma of whether to disclose the information to the intended parents or not (Daar, 2014). During the course of treatment, the clinician may learn previously unrevealed medical history about the surrogate, the surrogate’s intention to keep the resulting child, or dangerous behaviors like tobacco or alcohol use. Dr. Daar described the dilemma as between “the duty to obtain informed consent and the duty to maintain patient confidentiality.” 

First, it is strongly recommended that the surrogate and the intended parents see different clinicians to avoid overlapping patient-physician relationships. This will avoid conflict of interest so that both parties are cared for in their best interests. Next, the use of a written agreement is necessary to resolve any conflict. Disclosure is permitted if the surrogate waived her right to confidentiality. Most surrogate contracts require surrogates to waive certain HIPAA rights to reassure the intended parents that the child is healthy throughout the pregnancy. 

If there is a breach in contract, the clinician would ideally encourage the surrogate to discuss the breach with the intended parents. If the surrogate refuses and the agreement does not include a waiver of confidentiality, the clinician should weigh the harm and benefit of revealing the information. The intended parents are genetically related to the fetus and are ultimately responsible for the outcome of the pregnancy. Therefore, protecting the patient’s confidentiality may cause potential harm to the baby as well as the intended parents. Nonconsensual disclosure should be justified to obtain informed consent and to avoid harm. 

Rights of the Surrogate

A written legal contract between the surrogate mother and intended parents becomes especially imperative if disagreements should arise on the decision for abortion.  Difficult as these scenarios may be for traditional biological parents, the potential for conflict increases in cases of surrogacy.  From the perspective of the surrogate mother, she has to go through many lifestyle changes in caring for her fetus, such as avoiding certain fish, tobacco and alcohol as well as modifying her daily activities. After nine months of this, she then has to emotionally detach herself from the child after delivery. While all this may be previously agreed upon, it does not account for everything. And none of this strips the surrogate of certain basic rights, such as the autonomous right to her body and her own gametal development.

As many intended parents will have a financial interest in achieving a pregnancy on the first attempt, the process of multiple embryo implantation is common in order to increase the odds of just that.  Multiple implantations introduce greater chances of a multiple fetus pregnancy, resulting in potential conflicts between surrogate and parents. Multiple gestation comes with increased risks for both the fetuses and the mother carrying them. Additionally, if the surrogate happens to carry twins or triplets, the parents may insist on what is called “fetal reduction,” the process of terminating one or more fetuses with the intention of increasing the odds of a viable pregnancy.  With this comes the risk of psychological distress to the surrogate as well as the potential for a complete termination of pregnancy (Tanderup et al., 2015). In a high-profile case of 2016, surrogate Melissa Cook refused the requests of the commissioning parents to abort one of her triplets.  The surrogate mother decided she wished to deliver and seek custody of that triplet, defying the authority of the future parents (as per the contract) along with their concerns over the risks of carrying all three to term (O’Reilly, 2016). With stipulations of binding contracts involved, financial and legal concerns may complicate the counseling of patients who are weighing options in an already stressful situation. Ultimately, the risks of carrying multiple gestations and the surrogate mother’s autonomous rights to her body must be evaluated before coming to a definitive conclusion. 

            Another case that arose in 2017 speaks of a California-based surrogate mother who did not  “have sexual intercourse from the first day of her menstrual cycle before the embryo transfer until the date that pregnancy has been confirmed by the IVF Physician”  still went on to conceive a second child in a process of superfetation (NeJaime, 2017). In such rare cases, having the definite and autonomous right to one’s body through the different states helps streamline the custody battle and process. Allen should have had full right to conduct her life as planned despite entering a surrogacy contract.  

As a medical provider in situations such as this, our consideration of a patient’s autonomy, goal of beneficence toward that patient, and respect for the legally documented wishes of the parents are all in play.  The aim of informed consent is not so clear when a medical decision, traditionally made by one party, has been fractured into two.  The health of a patient can take primacy over contractual disagreements, however, efforts should be made to establish this consent with the patient as well as to communicate effectively all of the risks and benefits to both parties so that decisions can be made sensibly and amicably.  In instances of surrogacy, our ability to communicate clearly and consistently among multiple parties is crucial.

Rights of the Fetus

In all the debate about surrogate mother and the intended parents rights, one important factor we seem to overlook is the rights of the fetus or resulting child. As someone who is unable to speak their mind at the time the contracts are drafted, the fetus is both vulnerable and dependent on the decisions of a proxy (Rafique and DeCherney, 2014). Under normal circumstances that proxy would be the intended parents who have a vested emotional and psychological interest in the wellbeing of the child. However, multiple cases have arisen that put that proxy status in question and beg the need for a third party proxy. This third party proxy may be taken on by a physician so that the health and safety of the surrogate mother and fetus are prioritized. 

As previously stated, abortion or pregnancy reduction procedures are often common in gestational surrogates where multiple implantations may overburden the parents. We know that in entering a surrogacy agreement, both parties want to produce a healthy and viable child. Then if the health of the child or the surrogate mother is not a contention, can abortion or reduction still be an ethical option? What if the intended parents change their minds half way through the pregnancy and wish to abort? 

Furthermore, in a normal pregnancy the mother’s health is paramount, fetal health is therefore dependent on the mother who has a shared interest. In case of gestational surrogacy, the surrogate has no gametal involvement or interest in the resulting child, creating a paradigm of two separate patients that the obstetrician must cater to (Horner and Burcher, 2021). A third proxy physician may step in to conclude that although the surrogate mother does not have genetic ties to the child, the health of her body ensures the survival of the child.

With multiparity fetuses normally detected between 11-14 weeks of gestation (Bora, et al 2008), the decision to abort or reduce comes after significant emotional involvement of both parties in the contract. At such a time, a third party proxy or physician could be a valuable resource in addressing: the need for a fetal health advocate, a council for the surrogate and guide the intended parents decision.  

Conclusion 

Surrogacy is a delicate, yet complex topic that requires a significant amount of time to discuss and prepare for. Emotional, financial, medical, ethical and legal aspects contribute to the decision and continue to play a role throughout the journey and beyond. With so many moving parts, the need for standardized legal and medical guidance is important in ensuring a smooth transition and optimal care for all parties involved. A standardized system that can address the autonomy and nonmaleficence nature of care given to the surrogate, the justifiable right of all intended parents to surrogacy, and the dual role of beneficence in caring for both surrogate and fetus. It is because of this that we support a more physician-involved central guide to advocate for the ethical health rights of all parties involved in the surrogacy process. 

References :

Bora SA, Papageorghiou AT, Bottomley C, Kirk E, Bourne T. (2008). Reliability of transvaginal ultrasonography at 7-9 weeks’ gestation in the determination of chorionicity and amnionicity in twin pregnancies. Ultrasound Obstet Gynecol . 32(5):618-21

F., S., Alvarez, N., & Trolice , M. (2019, October 18). Surrogacy in the USA – Is It Legal in All 50 States? https://babygest.com/en/united-states/#surrogacy-laws-by-state  

​​Gonzalez, A. ( 2019 , June 12). Commercial Surrogacy in the United States . law.georgetown.edu. 

https://www.law.georgetown.edu/gender-journal/wp-content/uploads/sites/20/2019/11/Ali ia_Surrogacy-6.pdf. 

Horner C, Burcher P. ( 2021 ) A surrogate’s secrets are(n’t) safe with me: patient confidentiality in the care of a gestational surrogate. Journal of Medical Ethics . 47 : 213-217

Judith Daar (2014). “Physician Duties in the Face of Deceitful Gamete Donors, Disobedient Surrogate Mothers, and Divorcing Parents.” AMA Journal of Ethics , vol. 16, no. 1, 2014, pp. 43–48. 

Mello L. Everything You Need to Know About Surrogacy Agencies. Circle Surrogacy. https://www.circlesurrogacy.com/blog/circle-surrogacy/everything-to-know-surrogacy-agencies/. Published May 22, 2020. Accessed July 6, 2021. 

    NeJaime D. The Nature of Parenthood . 2017 ;126(8).       https://www.yalelawjournal.org/article/the-nature-of-parenthood. Accessed July 5, 2021. 

O’Reilly, K. (2016, February 18). When Parents and Surrogates Disagree on Abortion . The Atlantic. https://www.theatlantic.com/health/archive/2016/02/surrogacy-contract-melissa-cook/463323/

Radcliffe, S. ( 2019 , April 55). Lawsuit Filed by Surrogate Mother Raises New Legal, Moral … healthline.com.https://www.healthline.com/health-news/lawsuit-filed-by-surrogate-mother-raises-new-legal-moral-issues-012016. 

Rafique, S, and DeCherney, A.H. (2014) Physician Responsibility when a Surrogate Mother Breaks her Contract. AMA Journal of Ethics. Virtual Mentor. 16(1):10-16.

Tanderup, M., Reddy, S., Patel, T., & Nielsen, B. B. ( 2015 ). Reproductive Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India. Journal of Bioethical Inquiry , 12 (3), 491–501. https://doi.org/10.1007/s11673-015-9642-8

The Child-Parent Security Act: Gestational Surrogacy. New York State Department of Health. (2021, March). https://health.ny.gov/community/pregnancy/surrogacy/. 

White PM. ( 2017 ) “One for Sorrow, Two for Joy?”: American embryo transfer guideline recommendations, practices, and outcomes for gestational surrogate patients. J Assist Reprod Genet. 34(4):431-443.

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Need help with the Commons?

Email us at [email protected] so we can respond to your questions and requests. Please email from your CUNY email address if possible. Or visit our help site for more information:

• Terms of Service
• Accessibility
• Creative Commons (CC) license unless otherwise noted

‘At 51, My Mom Became My Surrogate—And Helped Make Me A Mama’

After struggling with infertility, Breanna Lockwood shares how she received the ultimate gift.

As soon as my daughter was born, the doctors handed her directly to me and the whole world stopped. She was healthy, perfect, and looked exactly like my husband. Our surrogate was also healthy, stable, and, officially, a grandma. My mom had helped make me a mama.

My daughter Briar is now 3. She is super spunky and has a big personality. She's kept us on our toes since the day she was born. And she knows she came from Grandma’s belly. They have an extremely close relationship and get to see each other almost every day. Briar is too young to fully understand the concept, but my family decided that our surrogacy story would always be a regular part of our life.

My husband and I were high school sweethearts, and when we got married in 2016, we immediately tried to start a family. After eight months with no luck, I went to my ob-gyn, who referred us to a fertility specialist in Chicago. First, we tried intrauterine insemination (IUI), a procedure that boosts the chances of getting pregnant by placing a sperm directly in the uterus. The first round was unsuccessful, and I was impatient, so we switched to in vitro fertilization (IVF), the most effective type of fertility treatment, in which an egg is fertilized by sperm in a lab before being transferred directly into the uterus.

I ended up having six unsuccessful IVF transfers, including two that ended in miscarriage —once after the second transfer and then again with twins. I was also diagnosed with Asherman syndrome after my miscarriage with the twins due to damaged scar tissue on the inside of my uterus, making future pregnancies more difficult and high risk.

At the time, all my friends were pregnant, and I felt so isolated. Every month I built the strength to try another round of IVF, and each time it didn’t work out, I was crushed. It was a vicious cycle. Infertility also took a serious toll on my body. I was pumping myself with hormones, my body was changing, and I was fatigued, tired, and emotional. The countless procedures, blood draws, transfers, and exams were unpleasant and painful. It felt as if I were in medical stirrups every day.

Eventually, my doctor suggested we look into surrogacy . It took some time to come around to the idea, and of course, I also had extreme sticker shock. Surrogacy can run anywhere from $50,000 to $250,000, and honestly, we couldn’t afford it. Still, it felt like my only option at that point, so I was devastated.

“What if I was your surrogate?” my mom texted me one day.

The text came out of the blue. My mom was 50 at the time. She’s a two-time Boston marathon runner and triathlete and is incredibly healthy. She is my best friend, and I’m her only daughter, so we’ve always been close. But I was still processing my emotions after the failed IUI and IVF, so I told her to drop it. Her suggestion felt like a silly, unrealistic, outlandish idea, and I didn’t even want to get my hopes up. But she was persistent and continued to remind me that she was confident she could be my surrogate.

About two months later, at a routine checkup at the fertility clinic, my mom came to support me. At the end of the exam, my doctor brought up surrogacy again, and my mom chimed in saying she had offered to be my surrogate. I was a little annoyed and embarrassed because it felt like such a crazy idea. But the doctor was clearly considering the idea and offered to run some preliminary tests.

There was never an exact moment when we decided that my mom would be my surrogate.

As she passed each health screening with flying colors (her health report looked better than mine!), we cautiously continued the process. My husband was supportive, trusting that as a very logical, realistic person, I had thought through all the outcomes. He also understood there are a lot of ways to grow a family and appreciated that this could be our path forward.

A few weeks after that initial doctor’s appointment, I saw a People magazine cover at work featuring a surrogate carrying a baby for her own son in Nebraska. I took the magazine home and contacted the mother and son. I wanted to get some answers. My husband and I even drove to Omaha to meet their physician.

All of us—my mom, my husband, and I—had to undergo an extensive psychological exam before starting the surrogacy process, meeting with a psychologist who made sure we were emotionally and mentally stable and ready for this journey. We all had to be on the same page with the right intentions. My mom and I had lawyers representing each of us (everyone had to be in legal agreement and legally protected), and they walked us through every contract, clause, and detail. We discussed all possible outcomes, including what to do in case of a medical emergency.

At this stage, my husband and I also needed to save money and wanted to support my mom throughout the entire process, so we sold our home at the end of 2019 and moved in with my parents.

Once all the screenings, evals, and paperwork were complete, we did an embryo transfer with my mom on February 25, 2020.

None of it felt real. I was emotionally in a dark place after years of infertility and loss, and to make matters worse, COVID-19 hit two weeks later. The world was shutting down, and my mom, who was already considered high risk for COVID infection due to her age, was trying to carry a pregnancy. My baby.

Throughout the entire first trimester, doctors were cautiously optimistic that the baby was developing at a normal rate, but after my history with the miscarriages, I was pessimistic. We held our breath during every appointment, scan, and test.

It wasn’t until the 20-week anatomy scan that I finally felt a wave of relief. My baby girl was growing and healthy. I was still reserved about celebrating, but I tried to let my guard down. We officially announced my mom’s pregnancy to friends and family and posted about it on social media. Of course, strangers online will always have their opinions about our unique surrogacy journey, but our family and friends only celebrated and supported the extraordinary miracle.

Throughout my mom’s pregnancy, we spent our days together. As my husband threw himself into nursery projects, my mom told me about every feeling, symptom, and craving, and I clung to each detail. It made us even closer. Her pregnancy never felt weird or awkward, and I didn’t harbor any jealousy or resentment.

Sometimes it was difficult during routine doctor's appointments since the focus was always on my mom. She was the patient, but as the mother of my baby, I sometimes wished the doctors spoke directly to me and asked questions. (Still, the staff did a great job of including my husband and myself in every conversation and never made us feel like outsiders.) I didn’t hold on to any of those feelings for long because I was just so completely and utterly grateful for my mom’s sacrifice.

My daughter was born on November 2, 2020—World Fertility Day.

She was born via an emergency C-section because doctors were concerned about her heartbeat during delivery. We were still in the throes of the pandemic, and while my doctor originally said we couldn’t go into the operating room—which I expected and made peace with—at the last minute, they let me into the room. It was the happiest day of my life.

We now live 20 minutes away from my parents, and I see my mom almost every day. We have pictures in our home of her pregnancy.

I definitely want to have another baby and recently started going through IVF again. Last year, I got pregnant, but my second daughter was born sleeping [stillborn] at 25 weeks due to a complex heart defect. And once again, I had to pull myself out of a dark hole, process my emotions, and get back on my feet to try again. I’m open to going through another surrogacy, and my mom has offered to carry for me again, but I want to keep her healthy and safe right now.

Although infertility has been the most devastating, difficult thing I’ve gone through, it’s ultimately a story of resilience. It’s financially taxing, emotionally draining, and physically challenging, but at the end of the day, it’s about how many times I get back up and keep going. My mom’s offer was the most selfless, beautiful gift. It showed me that motherhood can come in all different ways, and I carry that idea with me now.

Andi Breitowich is a Chicago-based writer and graduate student at Northwestern Medill. She’s a mass consumer of social media and cares about women’s rights, holistic wellness, and non-stigmatizing reproductive care. As a former collegiate pole vaulter, she has a love for all things fitness and is currently obsessed with Peloton Tread workouts and hot yoga.  

All The Pregnant Celebrities With 2024 Due Dates

Turn Your TV Into a Smart TV for Just $25

Kate Receives Historic Title From King Charles

About That "Spray-Tanned Statue" Tay Mentions...

How Suni Lee Is Taking Care Of Her Mental Health

How to Make Your Side Hustle The Hustle

Who Is Coco Gauff's Coach? Meet Brad Gilbert

Shop Joanna Gaines's Stanley Lunch Box at Target

Taylor Sings About Travis on ‘So High School’

Where Is Larry Nassar Now? FBI Settlment Details

Meet Madison Keys's Fiancé/Coach Bjorn Fratangelo

I spent over $100,000 on IVF treatments. Eventually, one of my sisters donated her eggs, and the other was my surrogate.

• Jaclyn Fieberg and her husband, Greg, longed for a baby. But they had complex fertility issues.
• One of Fieberg's sisters stepped up as an egg donor. The other became their surrogate.
• The couple's dream to become parents came true in February 2024 when their daughter was born.

This as-told-to essay is based on a conversation with Jacyln Fieberg . It has been edited for length and clarity.

Seconds after our baby started to cry as she was lifted free by the doctor, my sister, Stephanie, who'd just delivered her by C-section, shouted from the operating table.

"Jaclyn, you're a mom!" she said.

My husband, Greg, and I sobbed with joy. We'd finally become parents. Our daughter was a miracle after five years of heartache caused by infertility.

They say that it takes a village to raise a child . In our case, it took a family to create one. Stephanie, 41, stepped up as our surrogate, while Meredith, another of my sisters, was our egg donor.

Greg and I got married in October 2018. I was 33, and he was 39 at the time. We knew we wanted a family and tried for a baby almost immediately.

Unfortunately, it didn't happen naturally. We went for tests in 2019 that showed that Greg's sperm wasn't the best quality. We underwent IUI, which didn't work, before moving on to IVF.

I had a disorder that was linked to major fertility and heart problems

I got pregnant during our first round in March 2020. I wasn't expecting it to happen so fast. We were delighted.

However, at my 12-week ultrasound, they couldn't detect a heartbeat. It was supposed to be a happy day. But it was horrible. I needed a D&C.

We had extensive genetic testing before the next round of IVF. The geneticists discovered that I had Mosaic Turner syndrome , a chromosomal condition that occurs randomly.

Related stories

We were shocked. Typically, those with Mosaic Turner syndrome are short. I'm 5ft 9in tall. However, the disorder was linked to major fertility and heart problems .

I was later diagnosed with endometriosis and had multiple procedures in 2022. One of my fallopian tubes was removed.

Still, we did a total of six more rounds of IVF. I was having constant injections. We got our hopes up twice. But, first, it was a chemical pregnancy and then an early miscarriage .

It took a huge toll mentally. It affected our marriage. Greg works as a firefighter. He's a fixer, but he couldn't do anything to fix this for me — and for us. "I think we should stop," he told me at one point.

He was trying to protect me, but it wasn't the right answer. Traveling and getting another dog wasn't going to fulfill our desire to have kids.

We began to think about donor eggs from a stranger. But we're a very close family — Stephanie, Meredith, and my youngest sister, Samantha, lived through every high and low of our IVF journey.

My sisters' selflessness made our dreams come true

They wanted to help in any way they could. The genetic piece was important to me. Meredith, a mom of twins, put herself forward as our donor. Stephanie, who has two kids, and Samantha did the same.

We ruled out Samantha because she didn't already have children. Our fertility specialist decided Meredith was the better candidate. She was six years younger than Stephanie.

The retrieval of the eggs was successful. They were fertilized with Greg's sperm. Then, in December 2022, the doctor transferred one of the embryos into my uterus. Sadly, I didn't get pregnant.

But we didn't give up. Stephanie volunteered to be our surrogate, and we said yes. It was another selfless act by one of my sisters. Our decision was supported by David Berck , a high-risk maternal and fetal medicine doctor at Northwell Health in Westchester, New York.

A second embryo was transferred to Stephanie. It took. Greg and I were super cautious, but at last, we were pregnant. We figured out that it had cost us around $100,00 in medical fees to get to that stage. But it was worth every cent. I accompanied Stephanie to every pre-natal appointment . It felt so real seeing Emersyn on the scans; it was as if I was carrying her myself.

She was safely delivered on February 1st this year, weighing 7 pounds and 15 ounces. Greg, my mom, Barbara, and I were in the operating room with Stephanie. We cried hysterically.

Meredith and Stephanie presented us with the most special gift in the world. We're so lucky and grateful to them for Emersyn.

Do you have a powerful story to share with Business Insider? Please send details to [email protected] .

Watch: Leaked Roe vs. Wade opinion inspires women to share their abortion stories

• Main content

• Open access
• Published: 18 April 2024

Research ethics and artificial intelligence for global health: perspectives from the global forum on bioethics in research

• James Shaw 1 , 13 ,
• Joseph Ali 2 , 3 ,
• Caesar A. Atuire 4 , 5 ,
• Phaik Yeong Cheah 6 ,
• Armando Guio Español 7 ,
• Judy Wawira Gichoya 8 ,
• Adrienne Hunt 9 ,
• Daudi Jjingo 10 ,
• Katherine Littler 9 ,
• Daniela Paolotti 11 &
• Effy Vayena 12  

BMC Medical Ethics volume  25 , Article number:  46 ( 2024 ) Cite this article

920 Accesses

6 Altmetric

Metrics details

The ethical governance of Artificial Intelligence (AI) in health care and public health continues to be an urgent issue for attention in policy, research, and practice. In this paper we report on central themes related to challenges and strategies for promoting ethics in research involving AI in global health, arising from the Global Forum on Bioethics in Research (GFBR), held in Cape Town, South Africa in November 2022.

The GFBR is an annual meeting organized by the World Health Organization and supported by the Wellcome Trust, the US National Institutes of Health, the UK Medical Research Council (MRC) and the South African MRC. The forum aims to bring together ethicists, researchers, policymakers, research ethics committee members and other actors to engage with challenges and opportunities specifically related to research ethics. In 2022 the focus of the GFBR was “Ethics of AI in Global Health Research”. The forum consisted of 6 case study presentations, 16 governance presentations, and a series of small group and large group discussions. A total of 87 participants attended the forum from 31 countries around the world, representing disciplines of bioethics, AI, health policy, health professional practice, research funding, and bioinformatics. In this paper, we highlight central insights arising from GFBR 2022.

We describe the significance of four thematic insights arising from the forum: (1) Appropriateness of building AI, (2) Transferability of AI systems, (3) Accountability for AI decision-making and outcomes, and (4) Individual consent. We then describe eight recommendations for governance leaders to enhance the ethical governance of AI in global health research, addressing issues such as AI impact assessments, environmental values, and fair partnerships.

Conclusions

The 2022 Global Forum on Bioethics in Research illustrated several innovations in ethical governance of AI for global health research, as well as several areas in need of urgent attention internationally. This summary is intended to inform international and domestic efforts to strengthen research ethics and support the evolution of governance leadership to meet the demands of AI in global health research.

Peer Review reports

Introduction

The ethical governance of Artificial Intelligence (AI) in health care and public health continues to be an urgent issue for attention in policy, research, and practice [ 1 , 2 , 3 ]. Beyond the growing number of AI applications being implemented in health care, capabilities of AI models such as Large Language Models (LLMs) expand the potential reach and significance of AI technologies across health-related fields [ 4 , 5 ]. Discussion about effective, ethical governance of AI technologies has spanned a range of governance approaches, including government regulation, organizational decision-making, professional self-regulation, and research ethics review [ 6 , 7 , 8 ]. In this paper, we report on central themes related to challenges and strategies for promoting ethics in research involving AI in global health research, arising from the Global Forum on Bioethics in Research (GFBR), held in Cape Town, South Africa in November 2022. Although applications of AI for research, health care, and public health are diverse and advancing rapidly, the insights generated at the forum remain highly relevant from a global health perspective. After summarizing important context for work in this domain, we highlight categories of ethical issues emphasized at the forum for attention from a research ethics perspective internationally. We then outline strategies proposed for research, innovation, and governance to support more ethical AI for global health.

In this paper, we adopt the definition of AI systems provided by the Organization for Economic Cooperation and Development (OECD) as our starting point. Their definition states that an AI system is “a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments. AI systems are designed to operate with varying levels of autonomy” [ 9 ]. The conceptualization of an algorithm as helping to constitute an AI system, along with hardware, other elements of software, and a particular context of use, illustrates the wide variety of ways in which AI can be applied. We have found it useful to differentiate applications of AI in research as those classified as “AI systems for discovery” and “AI systems for intervention”. An AI system for discovery is one that is intended to generate new knowledge, for example in drug discovery or public health research in which researchers are seeking potential targets for intervention, innovation, or further research. An AI system for intervention is one that directly contributes to enacting an intervention in a particular context, for example informing decision-making at the point of care or assisting with accuracy in a surgical procedure.

The mandate of the GFBR is to take a broad view of what constitutes research and its regulation in global health, with special attention to bioethics in Low- and Middle- Income Countries. AI as a group of technologies demands such a broad view. AI development for health occurs in a variety of environments, including universities and academic health sciences centers where research ethics review remains an important element of the governance of science and innovation internationally [ 10 , 11 ]. In these settings, research ethics committees (RECs; also known by different names such as Institutional Review Boards or IRBs) make decisions about the ethical appropriateness of projects proposed by researchers and other institutional members, ultimately determining whether a given project is allowed to proceed on ethical grounds [ 12 ].

However, research involving AI for health also takes place in large corporations and smaller scale start-ups, which in some jurisdictions fall outside the scope of research ethics regulation. In the domain of AI, the question of what constitutes research also becomes blurred. For example, is the development of an algorithm itself considered a part of the research process? Or only when that algorithm is tested under the formal constraints of a systematic research methodology? In this paper we take an inclusive view, in which AI development is included in the definition of research activity and within scope for our inquiry, regardless of the setting in which it takes place. This broad perspective characterizes the approach to “research ethics” we take in this paper, extending beyond the work of RECs to include the ethical analysis of the wide range of activities that constitute research as the generation of new knowledge and intervention in the world.

Ethical governance of AI in global health

The ethical governance of AI for global health has been widely discussed in recent years. The World Health Organization (WHO) released its guidelines on ethics and governance of AI for health in 2021, endorsing a set of six ethical principles and exploring the relevance of those principles through a variety of use cases. The WHO guidelines also provided an overview of AI governance, defining governance as covering “a range of steering and rule-making functions of governments and other decision-makers, including international health agencies, for the achievement of national health policy objectives conducive to universal health coverage.” (p. 81) The report usefully provided a series of recommendations related to governance of seven domains pertaining to AI for health: data, benefit sharing, the private sector, the public sector, regulation, policy observatories/model legislation, and global governance. The report acknowledges that much work is yet to be done to advance international cooperation on AI governance, especially related to prioritizing voices from Low- and Middle-Income Countries (LMICs) in global dialogue.

One important point emphasized in the WHO report that reinforces the broader literature on global governance of AI is the distribution of responsibility across a wide range of actors in the AI ecosystem. This is especially important to highlight when focused on research for global health, which is specifically about work that transcends national borders. Alami et al. (2020) discussed the unique risks raised by AI research in global health, ranging from the unavailability of data in many LMICs required to train locally relevant AI models to the capacity of health systems to absorb new AI technologies that demand the use of resources from elsewhere in the system. These observations illustrate the need to identify the unique issues posed by AI research for global health specifically, and the strategies that can be employed by all those implicated in AI governance to promote ethically responsible use of AI in global health research.

RECs and the regulation of research involving AI

RECs represent an important element of the governance of AI for global health research, and thus warrant further commentary as background to our paper. Despite the importance of RECs, foundational questions have been raised about their capabilities to accurately understand and address ethical issues raised by studies involving AI. Rahimzadeh et al. (2023) outlined how RECs in the United States are under-prepared to align with recent federal policy requiring that RECs review data sharing and management plans with attention to the unique ethical issues raised in AI research for health [ 13 ]. Similar research in South Africa identified variability in understanding of existing regulations and ethical issues associated with health-related big data sharing and management among research ethics committee members [ 14 , 15 ]. The effort to address harms accruing to groups or communities as opposed to individuals whose data are included in AI research has also been identified as a unique challenge for RECs [ 16 , 17 ]. Doerr and Meeder (2022) suggested that current regulatory frameworks for research ethics might actually prevent RECs from adequately addressing such issues, as they are deemed out of scope of REC review [ 16 ]. Furthermore, research in the United Kingdom and Canada has suggested that researchers using AI methods for health tend to distinguish between ethical issues and social impact of their research, adopting an overly narrow view of what constitutes ethical issues in their work [ 18 ].

The challenges for RECs in adequately addressing ethical issues in AI research for health care and public health exceed a straightforward survey of ethical considerations. As Ferretti et al. (2021) contend, some capabilities of RECs adequately cover certain issues in AI-based health research, such as the common occurrence of conflicts of interest where researchers who accept funds from commercial technology providers are implicitly incentivized to produce results that align with commercial interests [ 12 ]. However, some features of REC review require reform to adequately meet ethical needs. Ferretti et al. outlined weaknesses of RECs that are longstanding and those that are novel to AI-related projects, proposing a series of directions for development that are regulatory, procedural, and complementary to REC functionality. The work required on a global scale to update the REC function in response to the demands of research involving AI is substantial.

These issues take greater urgency in the context of global health [ 19 ]. Teixeira da Silva (2022) described the global practice of “ethics dumping”, where researchers from high income countries bring ethically contentious practices to RECs in low-income countries as a strategy to gain approval and move projects forward [ 20 ]. Although not yet systematically documented in AI research for health, risk of ethics dumping in AI research is high. Evidence is already emerging of practices of “health data colonialism”, in which AI researchers and developers from large organizations in high-income countries acquire data to build algorithms in LMICs to avoid stricter regulations [ 21 ]. This specific practice is part of a larger collection of practices that characterize health data colonialism, involving the broader exploitation of data and the populations they represent primarily for commercial gain [ 21 , 22 ]. As an additional complication, AI algorithms trained on data from high-income contexts are unlikely to apply in straightforward ways to LMIC settings [ 21 , 23 ]. In the context of global health, there is widespread acknowledgement about the need to not only enhance the knowledge base of REC members about AI-based methods internationally, but to acknowledge the broader shifts required to encourage their capabilities to more fully address these and other ethical issues associated with AI research for health [ 8 ].

Although RECs are an important part of the story of the ethical governance of AI for global health research, they are not the only part. The responsibilities of supra-national entities such as the World Health Organization, national governments, organizational leaders, commercial AI technology providers, health care professionals, and other groups continue to be worked out internationally. In this context of ongoing work, examining issues that demand attention and strategies to address them remains an urgent and valuable task.

The GFBR is an annual meeting organized by the World Health Organization and supported by the Wellcome Trust, the US National Institutes of Health, the UK Medical Research Council (MRC) and the South African MRC. The forum aims to bring together ethicists, researchers, policymakers, REC members and other actors to engage with challenges and opportunities specifically related to research ethics. Each year the GFBR meeting includes a series of case studies and keynotes presented in plenary format to an audience of approximately 100 people who have applied and been competitively selected to attend, along with small-group breakout discussions to advance thinking on related issues. The specific topic of the forum changes each year, with past topics including ethical issues in research with people living with mental health conditions (2021), genome editing (2019), and biobanking/data sharing (2018). The forum is intended to remain grounded in the practical challenges of engaging in research ethics, with special interest in low resource settings from a global health perspective. A post-meeting fellowship scheme is open to all LMIC participants, providing a unique opportunity to apply for funding to further explore and address the ethical challenges that are identified during the meeting.

In 2022, the focus of the GFBR was “Ethics of AI in Global Health Research”. The forum consisted of 6 case study presentations (both short and long form) reporting on specific initiatives related to research ethics and AI for health, and 16 governance presentations (both short and long form) reporting on actual approaches to governing AI in different country settings. A keynote presentation from Professor Effy Vayena addressed the topic of the broader context for AI ethics in a rapidly evolving field. A total of 87 participants attended the forum from 31 countries around the world, representing disciplines of bioethics, AI, health policy, health professional practice, research funding, and bioinformatics. The 2-day forum addressed a wide range of themes. The conference report provides a detailed overview of each of the specific topics addressed while a policy paper outlines the cross-cutting themes (both documents are available at the GFBR website: https://www.gfbr.global/past-meetings/16th-forum-cape-town-south-africa-29-30-november-2022/ ). As opposed to providing a detailed summary in this paper, we aim to briefly highlight central issues raised, solutions proposed, and the challenges facing the research ethics community in the years to come.

In this way, our primary aim in this paper is to present a synthesis of the challenges and opportunities raised at the GFBR meeting and in the planning process, followed by our reflections as a group of authors on their significance for governance leaders in the coming years. We acknowledge that the views represented at the meeting and in our results are a partial representation of the universe of views on this topic; however, the GFBR leadership invested a great deal of resources in convening a deeply diverse and thoughtful group of researchers and practitioners working on themes of bioethics related to AI for global health including those based in LMICs. We contend that it remains rare to convene such a strong group for an extended time and believe that many of the challenges and opportunities raised demand attention for more ethical futures of AI for health. Nonetheless, our results are primarily descriptive and are thus not explicitly grounded in a normative argument. We make effort in the Discussion section to contextualize our results by describing their significance and connecting them to broader efforts to reform global health research and practice.

Uniquely important ethical issues for AI in global health research

Presentations and group dialogue over the course of the forum raised several issues for consideration, and here we describe four overarching themes for the ethical governance of AI in global health research. Brief descriptions of each issue can be found in Table  1 . Reports referred to throughout the paper are available at the GFBR website provided above.

The first overarching thematic issue relates to the appropriateness of building AI technologies in response to health-related challenges in the first place. Case study presentations referred to initiatives where AI technologies were highly appropriate, such as in ear shape biometric identification to more accurately link electronic health care records to individual patients in Zambia (Alinani Simukanga). Although important ethical issues were raised with respect to privacy, trust, and community engagement in this initiative, the AI-based solution was appropriately matched to the challenge of accurately linking electronic records to specific patient identities. In contrast, forum participants raised questions about the appropriateness of an initiative using AI to improve the quality of handwashing practices in an acute care hospital in India (Niyoshi Shah), which led to gaming the algorithm. Overall, participants acknowledged the dangers of techno-solutionism, in which AI researchers and developers treat AI technologies as the most obvious solutions to problems that in actuality demand much more complex strategies to address [ 24 ]. However, forum participants agreed that RECs in different contexts have differing degrees of power to raise issues of the appropriateness of an AI-based intervention.

The second overarching thematic issue related to whether and how AI-based systems transfer from one national health context to another. One central issue raised by a number of case study presentations related to the challenges of validating an algorithm with data collected in a local environment. For example, one case study presentation described a project that would involve the collection of personally identifiable data for sensitive group identities, such as tribe, clan, or religion, in the jurisdictions involved (South Africa, Nigeria, Tanzania, Uganda and the US; Gakii Masunga). Doing so would enable the team to ensure that those groups were adequately represented in the dataset to ensure the resulting algorithm was not biased against specific community groups when deployed in that context. However, some members of these communities might desire to be represented in the dataset, whereas others might not, illustrating the need to balance autonomy and inclusivity. It was also widely recognized that collecting these data is an immense challenge, particularly when historically oppressive practices have led to a low-trust environment for international organizations and the technologies they produce. It is important to note that in some countries such as South Africa and Rwanda, it is illegal to collect information such as race and tribal identities, re-emphasizing the importance for cultural awareness and avoiding “one size fits all” solutions.

The third overarching thematic issue is related to understanding accountabilities for both the impacts of AI technologies and governance decision-making regarding their use. Where global health research involving AI leads to longer-term harms that might fall outside the usual scope of issues considered by a REC, who is to be held accountable, and how? This question was raised as one that requires much further attention, with law being mixed internationally regarding the mechanisms available to hold researchers, innovators, and their institutions accountable over the longer term. However, it was recognized in breakout group discussion that many jurisdictions are developing strong data protection regimes related specifically to international collaboration for research involving health data. For example, Kenya’s Data Protection Act requires that any internationally funded projects have a local principal investigator who will hold accountability for how data are shared and used [ 25 ]. The issue of research partnerships with commercial entities was raised by many participants in the context of accountability, pointing toward the urgent need for clear principles related to strategies for engagement with commercial technology companies in global health research.

The fourth and final overarching thematic issue raised here is that of consent. The issue of consent was framed by the widely shared recognition that models of individual, explicit consent might not produce a supportive environment for AI innovation that relies on the secondary uses of health-related datasets to build AI algorithms. Given this recognition, approaches such as community oversight of health data uses were suggested as a potential solution. However, the details of implementing such community oversight mechanisms require much further attention, particularly given the unique perspectives on health data in different country settings in global health research. Furthermore, some uses of health data do continue to require consent. One case study of South Africa, Nigeria, Kenya, Ethiopia and Uganda suggested that when health data are shared across borders, individual consent remains necessary when data is transferred from certain countries (Nezerith Cengiz). Broader clarity is necessary to support the ethical governance of health data uses for AI in global health research.

Recommendations for ethical governance of AI in global health research

Dialogue at the forum led to a range of suggestions for promoting ethical conduct of AI research for global health, related to the various roles of actors involved in the governance of AI research broadly defined. The strategies are written for actors we refer to as “governance leaders”, those people distributed throughout the AI for global health research ecosystem who are responsible for ensuring the ethical and socially responsible conduct of global health research involving AI (including researchers themselves). These include RECs, government regulators, health care leaders, health professionals, corporate social accountability officers, and others. Enacting these strategies would bolster the ethical governance of AI for global health more generally, enabling multiple actors to fulfill their roles related to governing research and development activities carried out across multiple organizations, including universities, academic health sciences centers, start-ups, and technology corporations. Specific suggestions are summarized in Table  2 .

First, forum participants suggested that governance leaders including RECs, should remain up to date on recent advances in the regulation of AI for health. Regulation of AI for health advances rapidly and takes on different forms in jurisdictions around the world. RECs play an important role in governance, but only a partial role; it was deemed important for RECs to acknowledge how they fit within a broader governance ecosystem in order to more effectively address the issues within their scope. Not only RECs but organizational leaders responsible for procurement, researchers, and commercial actors should all commit to efforts to remain up to date about the relevant approaches to regulating AI for health care and public health in jurisdictions internationally. In this way, governance can more adequately remain up to date with advances in regulation.

Second, forum participants suggested that governance leaders should focus on ethical governance of health data as a basis for ethical global health AI research. Health data are considered the foundation of AI development, being used to train AI algorithms for various uses [ 26 ]. By focusing on ethical governance of health data generation, sharing, and use, multiple actors will help to build an ethical foundation for AI development among global health researchers.

Third, forum participants believed that governance processes should incorporate AI impact assessments where appropriate. An AI impact assessment is the process of evaluating the potential effects, both positive and negative, of implementing an AI algorithm on individuals, society, and various stakeholders, generally over time frames specified in advance of implementation [ 27 ]. Although not all types of AI research in global health would warrant an AI impact assessment, this is especially relevant for those studies aiming to implement an AI system for intervention into health care or public health. Organizations such as RECs can use AI impact assessments to boost understanding of potential harms at the outset of a research project, encouraging researchers to more deeply consider potential harms in the development of their study.

Fourth, forum participants suggested that governance decisions should incorporate the use of environmental impact assessments, or at least the incorporation of environment values when assessing the potential impact of an AI system. An environmental impact assessment involves evaluating and anticipating the potential environmental effects of a proposed project to inform ethical decision-making that supports sustainability [ 28 ]. Although a relatively new consideration in research ethics conversations [ 29 ], the environmental impact of building technologies is a crucial consideration for the public health commitment to environmental sustainability. Governance leaders can use environmental impact assessments to boost understanding of potential environmental harms linked to AI research projects in global health over both the shorter and longer terms.

Fifth, forum participants suggested that governance leaders should require stronger transparency in the development of AI algorithms in global health research. Transparency was considered essential in the design and development of AI algorithms for global health to ensure ethical and accountable decision-making throughout the process. Furthermore, whether and how researchers have considered the unique contexts into which such algorithms may be deployed can be surfaced through stronger transparency, for example in describing what primary considerations were made at the outset of the project and which stakeholders were consulted along the way. Sharing information about data provenance and methods used in AI development will also enhance the trustworthiness of the AI-based research process.

Sixth, forum participants suggested that governance leaders can encourage or require community engagement at various points throughout an AI project. It was considered that engaging patients and communities is crucial in AI algorithm development to ensure that the technology aligns with community needs and values. However, participants acknowledged that this is not a straightforward process. Effective community engagement requires lengthy commitments to meeting with and hearing from diverse communities in a given setting, and demands a particular set of skills in communication and dialogue that are not possessed by all researchers. Encouraging AI researchers to begin this process early and build long-term partnerships with community members is a promising strategy to deepen community engagement in AI research for global health. One notable recommendation was that research funders have an opportunity to incentivize and enable community engagement with funds dedicated to these activities in AI research in global health.

Seventh, forum participants suggested that governance leaders can encourage researchers to build strong, fair partnerships between institutions and individuals across country settings. In a context of longstanding imbalances in geopolitical and economic power, fair partnerships in global health demand a priori commitments to share benefits related to advances in medical technologies, knowledge, and financial gains. Although enforcement of this point might be beyond the remit of RECs, commentary will encourage researchers to consider stronger, fairer partnerships in global health in the longer term.

Eighth, it became evident that it is necessary to explore new forms of regulatory experimentation given the complexity of regulating a technology of this nature. In addition, the health sector has a series of particularities that make it especially complicated to generate rules that have not been previously tested. Several participants highlighted the desire to promote spaces for experimentation such as regulatory sandboxes or innovation hubs in health. These spaces can have several benefits for addressing issues surrounding the regulation of AI in the health sector, such as: (i) increasing the capacities and knowledge of health authorities about this technology; (ii) identifying the major problems surrounding AI regulation in the health sector; (iii) establishing possibilities for exchange and learning with other authorities; (iv) promoting innovation and entrepreneurship in AI in health; and (vi) identifying the need to regulate AI in this sector and update other existing regulations.

Ninth and finally, forum participants believed that the capabilities of governance leaders need to evolve to better incorporate expertise related to AI in ways that make sense within a given jurisdiction. With respect to RECs, for example, it might not make sense for every REC to recruit a member with expertise in AI methods. Rather, it will make more sense in some jurisdictions to consult with members of the scientific community with expertise in AI when research protocols are submitted that demand such expertise. Furthermore, RECs and other approaches to research governance in jurisdictions around the world will need to evolve in order to adopt the suggestions outlined above, developing processes that apply specifically to the ethical governance of research using AI methods in global health.

Research involving the development and implementation of AI technologies continues to grow in global health, posing important challenges for ethical governance of AI in global health research around the world. In this paper we have summarized insights from the 2022 GFBR, focused specifically on issues in research ethics related to AI for global health research. We summarized four thematic challenges for governance related to AI in global health research and nine suggestions arising from presentations and dialogue at the forum. In this brief discussion section, we present an overarching observation about power imbalances that frames efforts to evolve the role of governance in global health research, and then outline two important opportunity areas as the field develops to meet the challenges of AI in global health research.

Dialogue about power is not unfamiliar in global health, especially given recent contributions exploring what it would mean to de-colonize global health research, funding, and practice [ 30 , 31 ]. Discussions of research ethics applied to AI research in global health contexts are deeply infused with power imbalances. The existing context of global health is one in which high-income countries primarily located in the “Global North” charitably invest in projects taking place primarily in the “Global South” while recouping knowledge, financial, and reputational benefits [ 32 ]. With respect to AI development in particular, recent examples of digital colonialism frame dialogue about global partnerships, raising attention to the role of large commercial entities and global financial capitalism in global health research [ 21 , 22 ]. Furthermore, the power of governance organizations such as RECs to intervene in the process of AI research in global health varies widely around the world, depending on the authorities assigned to them by domestic research governance policies. These observations frame the challenges outlined in our paper, highlighting the difficulties associated with making meaningful change in this field.

Despite these overarching challenges of the global health research context, there are clear strategies for progress in this domain. Firstly, AI innovation is rapidly evolving, which means approaches to the governance of AI for health are rapidly evolving too. Such rapid evolution presents an important opportunity for governance leaders to clarify their vision and influence over AI innovation in global health research, boosting the expertise, structure, and functionality required to meet the demands of research involving AI. Secondly, the research ethics community has strong international ties, linked to a global scholarly community that is committed to sharing insights and best practices around the world. This global community can be leveraged to coordinate efforts to produce advances in the capabilities and authorities of governance leaders to meaningfully govern AI research for global health given the challenges summarized in our paper.

Limitations

Our paper includes two specific limitations that we address explicitly here. First, it is still early in the lifetime of the development of applications of AI for use in global health, and as such, the global community has had limited opportunity to learn from experience. For example, there were many fewer case studies, which detail experiences with the actual implementation of an AI technology, submitted to GFBR 2022 for consideration than was expected. In contrast, there were many more governance reports submitted, which detail the processes and outputs of governance processes that anticipate the development and dissemination of AI technologies. This observation represents both a success and a challenge. It is a success that so many groups are engaging in anticipatory governance of AI technologies, exploring evidence of their likely impacts and governing technologies in novel and well-designed ways. It is a challenge that there is little experience to build upon of the successful implementation of AI technologies in ways that have limited harms while promoting innovation. Further experience with AI technologies in global health will contribute to revising and enhancing the challenges and recommendations we have outlined in our paper.

Second, global trends in the politics and economics of AI technologies are evolving rapidly. Although some nations are advancing detailed policy approaches to regulating AI more generally, including for uses in health care and public health, the impacts of corporate investments in AI and political responses related to governance remain to be seen. The excitement around large language models (LLMs) and large multimodal models (LMMs) has drawn deeper attention to the challenges of regulating AI in any general sense, opening dialogue about health sector-specific regulations. The direction of this global dialogue, strongly linked to high-profile corporate actors and multi-national governance institutions, will strongly influence the development of boundaries around what is possible for the ethical governance of AI for global health. We have written this paper at a point when these developments are proceeding rapidly, and as such, we acknowledge that our recommendations will need updating as the broader field evolves.

Ultimately, coordination and collaboration between many stakeholders in the research ethics ecosystem will be necessary to strengthen the ethical governance of AI in global health research. The 2022 GFBR illustrated several innovations in ethical governance of AI for global health research, as well as several areas in need of urgent attention internationally. This summary is intended to inform international and domestic efforts to strengthen research ethics and support the evolution of governance leadership to meet the demands of AI in global health research.

Data availability

All data and materials analyzed to produce this paper are available on the GFBR website: https://www.gfbr.global/past-meetings/16th-forum-cape-town-south-africa-29-30-november-2022/ .

Clark P, Kim J, Aphinyanaphongs Y, Marketing, Food US. Drug Administration Clearance of Artificial Intelligence and Machine Learning Enabled Software in and as Medical devices: a systematic review. JAMA Netw Open. 2023;6(7):e2321792–2321792.

Article   Google Scholar  

Potnis KC, Ross JS, Aneja S, Gross CP, Richman IB. Artificial intelligence in breast cancer screening: evaluation of FDA device regulation and future recommendations. JAMA Intern Med. 2022;182(12):1306–12.

Siala H, Wang Y. SHIFTing artificial intelligence to be responsible in healthcare: a systematic review. Soc Sci Med. 2022;296:114782.

Yang X, Chen A, PourNejatian N, Shin HC, Smith KE, Parisien C, et al. A large language model for electronic health records. NPJ Digit Med. 2022;5(1):194.

Meskó B, Topol EJ. The imperative for regulatory oversight of large language models (or generative AI) in healthcare. NPJ Digit Med. 2023;6(1):120.

Jobin A, Ienca M, Vayena E. The global landscape of AI ethics guidelines. Nat Mach Intell. 2019;1(9):389–99.

Minssen T, Vayena E, Cohen IG. The challenges for Regulating Medical Use of ChatGPT and other large Language models. JAMA. 2023.

Ho CWL, Malpani R. Scaling up the research ethics framework for healthcare machine learning as global health ethics and governance. Am J Bioeth. 2022;22(5):36–8.

Yeung K. Recommendation of the council on artificial intelligence (OECD). Int Leg Mater. 2020;59(1):27–34.

Maddox TM, Rumsfeld JS, Payne PR. Questions for artificial intelligence in health care. JAMA. 2019;321(1):31–2.

Dzau VJ, Balatbat CA, Ellaissi WF. Revisiting academic health sciences systems a decade later: discovery to health to population to society. Lancet. 2021;398(10318):2300–4.

Ferretti A, Ienca M, Sheehan M, Blasimme A, Dove ES, Farsides B, et al. Ethics review of big data research: what should stay and what should be reformed? BMC Med Ethics. 2021;22(1):1–13.

Rahimzadeh V, Serpico K, Gelinas L. Institutional review boards need new skills to review data sharing and management plans. Nat Med. 2023;1–3.

Kling S, Singh S, Burgess TL, Nair G. The role of an ethics advisory committee in data science research in sub-saharan Africa. South Afr J Sci. 2023;119(5–6):1–3.

Google Scholar  

Cengiz N, Kabanda SM, Esterhuizen TM, Moodley K. Exploring perspectives of research ethics committee members on the governance of big data in sub-saharan Africa. South Afr J Sci. 2023;119(5–6):1–9.

Doerr M, Meeder S. Big health data research and group harm: the scope of IRB review. Ethics Hum Res. 2022;44(4):34–8.

Ballantyne A, Stewart C. Big data and public-private partnerships in healthcare and research: the application of an ethics framework for big data in health and research. Asian Bioeth Rev. 2019;11(3):315–26.

Samuel G, Chubb J, Derrick G. Boundaries between research ethics and ethical research use in artificial intelligence health research. J Empir Res Hum Res Ethics. 2021;16(3):325–37.

Murphy K, Di Ruggiero E, Upshur R, Willison DJ, Malhotra N, Cai JC, et al. Artificial intelligence for good health: a scoping review of the ethics literature. BMC Med Ethics. 2021;22(1):1–17.

Teixeira da Silva JA. Handling ethics dumping and neo-colonial research: from the laboratory to the academic literature. J Bioethical Inq. 2022;19(3):433–43.

Ferryman K. The dangers of data colonialism in precision public health. Glob Policy. 2021;12:90–2.

Couldry N, Mejias UA. Data colonialism: rethinking big data’s relation to the contemporary subject. Telev New Media. 2019;20(4):336–49.

Organization WH. Ethics and governance of artificial intelligence for health: WHO guidance. 2021.

Metcalf J, Moss E. Owning ethics: corporate logics, silicon valley, and the institutionalization of ethics. Soc Res Int Q. 2019;86(2):449–76.

Data Protection Act - OFFICE OF THE DATA PROTECTION COMMISSIONER KENYA [Internet]. 2021 [cited 2023 Sep 30]. https://www.odpc.go.ke/dpa-act/ .

Sharon T, Lucivero F. Introduction to the special theme: the expansion of the health data ecosystem–rethinking data ethics and governance. Big Data & Society. Volume 6. London, England: SAGE Publications Sage UK; 2019. p. 2053951719852969.

Reisman D, Schultz J, Crawford K, Whittaker M. Algorithmic impact assessments: a practical Framework for Public Agency. AI Now. 2018.

Morgan RK. Environmental impact assessment: the state of the art. Impact Assess Proj Apprais. 2012;30(1):5–14.

Samuel G, Richie C. Reimagining research ethics to include environmental sustainability: a principled approach, including a case study of data-driven health research. J Med Ethics. 2023;49(6):428–33.

Kwete X, Tang K, Chen L, Ren R, Chen Q, Wu Z, et al. Decolonizing global health: what should be the target of this movement and where does it lead us? Glob Health Res Policy. 2022;7(1):3.

Abimbola S, Asthana S, Montenegro C, Guinto RR, Jumbam DT, Louskieter L, et al. Addressing power asymmetries in global health: imperatives in the wake of the COVID-19 pandemic. PLoS Med. 2021;18(4):e1003604.

Benatar S. Politics, power, poverty and global health: systems and frames. Int J Health Policy Manag. 2016;5(10):599.

Download references

Acknowledgements

We would like to acknowledge the outstanding contributions of the attendees of GFBR 2022 in Cape Town, South Africa. This paper is authored by members of the GFBR 2022 Planning Committee. We would like to acknowledge additional members Tamra Lysaght, National University of Singapore, and Niresh Bhagwandin, South African Medical Research Council, for their input during the planning stages and as reviewers of the applications to attend the Forum.

This work was supported by Wellcome [222525/Z/21/Z], the US National Institutes of Health, the UK Medical Research Council (part of UK Research and Innovation), and the South African Medical Research Council through funding to the Global Forum on Bioethics in Research.

Author information

Authors and affiliations.

Department of Physical Therapy, Temerty Faculty of Medicine, University of Toronto, Toronto, Canada

Berman Institute of Bioethics, Johns Hopkins University, Baltimore, MD, USA

Bloomberg School of Public Health, Johns Hopkins University, Baltimore, MD, USA

Department of Philosophy and Classics, University of Ghana, Legon-Accra, Ghana

Caesar A. Atuire

Centre for Tropical Medicine and Global Health, Nuffield Department of Medicine, University of Oxford, Oxford, UK

Mahidol Oxford Tropical Medicine Research Unit, Faculty of Tropical Medicine, Mahidol University, Bangkok, Thailand

Phaik Yeong Cheah

Berkman Klein Center, Harvard University, Bogotá, Colombia

Armando Guio Español

Department of Radiology and Informatics, Emory University School of Medicine, Atlanta, GA, USA

Judy Wawira Gichoya

Health Ethics & Governance Unit, Research for Health Department, Science Division, World Health Organization, Geneva, Switzerland

Adrienne Hunt & Katherine Littler

African Center of Excellence in Bioinformatics and Data Intensive Science, Infectious Diseases Institute, Makerere University, Kampala, Uganda

Daudi Jjingo

ISI Foundation, Turin, Italy

Daniela Paolotti

Department of Health Sciences and Technology, ETH Zurich, Zürich, Switzerland

Effy Vayena

Joint Centre for Bioethics, Dalla Lana School of Public Health, University of Toronto, Toronto, Canada

You can also search for this author in PubMed   Google Scholar

Contributions

JS led the writing, contributed to conceptualization and analysis, critically reviewed and provided feedback on drafts of this paper, and provided final approval of the paper. JA contributed to conceptualization and analysis, critically reviewed and provided feedback on drafts of this paper, and provided final approval of the paper. CA contributed to conceptualization and analysis, critically reviewed and provided feedback on drafts of this paper, and provided final approval of the paper. PYC contributed to conceptualization and analysis, critically reviewed and provided feedback on drafts of this paper, and provided final approval of the paper. AE contributed to conceptualization and analysis, critically reviewed and provided feedback on drafts of this paper, and provided final approval of the paper. JWG contributed to conceptualization and analysis, critically reviewed and provided feedback on drafts of this paper, and provided final approval of the paper. AH contributed to conceptualization and analysis, critically reviewed and provided feedback on drafts of this paper, and provided final approval of the paper. DJ contributed to conceptualization and analysis, critically reviewed and provided feedback on drafts of this paper, and provided final approval of the paper. KL contributed to conceptualization and analysis, critically reviewed and provided feedback on drafts of this paper, and provided final approval of the paper. DP contributed to conceptualization and analysis, critically reviewed and provided feedback on drafts of this paper, and provided final approval of the paper. EV contributed to conceptualization and analysis, critically reviewed and provided feedback on drafts of this paper, and provided final approval of the paper.

Corresponding author

Correspondence to James Shaw .

Ethics declarations

Ethics approval and consent to participate.

Not applicable.

Consent for publication

Competing interests.

The authors declare no competing interests.

Additional information

Publisher’s note.

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/ . The Creative Commons Public Domain Dedication waiver ( http://creativecommons.org/publicdomain/zero/1.0/ ) applies to the data made available in this article, unless otherwise stated in a credit line to the data.

Reprints and permissions

About this article

Cite this article.

Shaw, J., Ali, J., Atuire, C.A. et al. Research ethics and artificial intelligence for global health: perspectives from the global forum on bioethics in research. BMC Med Ethics 25 , 46 (2024). https://doi.org/10.1186/s12910-024-01044-w

Download citation

Received : 31 October 2023

Accepted : 01 April 2024

Published : 18 April 2024

DOI : https://doi.org/10.1186/s12910-024-01044-w

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Artificial intelligence
• Machine learning
• Research ethics
• Global health

BMC Medical Ethics

ISSN: 1472-6939

• General enquiries: [email protected]

• Share full article

Advertisement

Supported by

Guest Essay

I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It’s a Historic Mistake.

By Jed Handelsman Shugerman

Mr. Shugerman is a law professor at Boston University.

About a year ago, when Alvin Bragg, the Manhattan district attorney, indicted former President Donald Trump, I was critical of the case and called it an embarrassment. I thought an array of legal problems would and should lead to long delays in federal courts.

After listening to Monday’s opening statement by prosecutors, I still think the district attorney has made a historic mistake. Their vague allegation about “a criminal scheme to corrupt the 2016 presidential election” has me more concerned than ever about their unprecedented use of state law and their persistent avoidance of specifying an election crime or a valid theory of fraud.

To recap: Mr. Trump is accused in the case of falsifying business records. Those are misdemeanor charges. To elevate it to a criminal case, Mr. Bragg and his team have pointed to potential violations of federal election law and state tax fraud. They also cite state election law, but state statutory definitions of “public office” seem to limit those statutes to state and local races.

Both the misdemeanor and felony charges require that the defendant made the false record with “intent to defraud.” A year ago, I wondered how entirely internal business records (the daily ledger, pay stubs and invoices) could be the basis of any fraud if they are not shared with anyone outside the business. I suggested that the real fraud was Mr. Trump’s filing an (allegedly) false report to the Federal Election Commission, and that only federal prosecutors had jurisdiction over that filing.

A recent conversation with Jeffrey Cohen, a friend, Boston College law professor and former prosecutor, made me think that the case could turn out to be more legitimate than I had originally thought. The reason has to do with those allegedly falsified business records: Most of them were entered in early 2017, generally before Mr. Trump filed his Federal Election Commission report that summer. Mr. Trump may have foreseen an investigation into his campaign, leading to its financial records. He may have falsely recorded these internal records before the F.E.C. filing as consciously part of the same fraud: to create a consistent paper trail and to hide intent to violate federal election laws, or defraud the F.E.C.

In short: It’s not the crime; it’s the cover-up.

Looking at the case in this way might address concerns about state jurisdiction. In this scenario, Mr. Trump arguably intended to deceive state investigators, too. State investigators could find these inconsistencies and alert federal agencies. Prosecutors could argue that New York State agencies have an interest in detecting conspiracies to defraud federal entities; they might also have a plausible answer to significant questions about whether New York State has jurisdiction or whether this stretch of a state business filing law is pre-empted by federal law.

However, this explanation is a novel interpretation with many significant legal problems. And none of the Manhattan district attorney’s filings or today’s opening statement even hint at this approach.

Instead of a theory of defrauding state regulators, Mr. Bragg has adopted a weak theory of “election interference,” and Justice Juan Merchan described the case , in his summary of it during jury selection, as an allegation of falsifying business records “to conceal an agreement with others to unlawfully influence the 2016 election.”

As a reality check: It is legal for a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but it is legal. The election law scholar Richard Hasen rightly observed , “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”

In Monday’s opening argument, the prosecutor Matthew Colangelo still evaded specifics about what was illegal about influencing an election, but then he claimed , “It was election fraud, pure and simple.” None of the relevant state or federal statutes refer to filing violations as fraud. Calling it “election fraud” is a legal and strategic mistake, exaggerating the case and setting up the jury with high expectations that the prosecutors cannot meet.

The most accurate description of this criminal case is a federal campaign finance filing violation. Without a federal violation (which the state election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor counts into felonies. Moreover, it is unclear how this case would even fulfill the misdemeanor requirement of “intent to defraud” without the federal crime.

In stretching jurisdiction and trying a federal crime in state court, the Manhattan district attorney is now pushing untested legal interpretations and applications. I see three red flags raising concerns about selective prosecution upon appeal.

First, I could find no previous case of any state prosecutor relying on the Federal Election Campaign Act either as a direct crime or a predicate crime. Whether state prosecutors have avoided doing so as a matter of law, norms or lack of expertise, this novel attempt is a sign of overreach.

Second, Mr. Trump’s lawyers argued that the New York statute requires that the predicate (underlying) crime must also be a New York crime, not a crime in another jurisdiction. The district attorney responded with judicial precedents only about other criminal statutes, not the statute in this case. In the end, the prosecutors could not cite a single judicial interpretation of this particular statute supporting their use of the statute (a plea deal and a single jury instruction do not count).

Third, no New York precedent has allowed an interpretation of defrauding the general public. Legal experts have noted that such a broad “election interference” theory is unprecedented, and a conviction based on it may not survive a state appeal.

Mr. Trump’s legal team also undercut itself for its decisions in the past year: His lawyers essentially put all of their eggs in the meritless basket of seeking to move the trial to federal court, instead of seeking a federal injunction to stop the trial entirely. If they had raised the issues of selective or vindictive prosecution and a mix of jurisdictional, pre-emption and constitutional claims, they could have delayed the trial past Election Day, even if they lost at each federal stage.

Another reason a federal crime has wound up in state court is that President Biden’s Justice Department bent over backward not to reopen this valid case or appoint a special counsel. Mr. Trump has tried to blame Mr. Biden for this prosecution as the real “election interference.” The Biden administration’s extra restraint belies this allegation and deserves more credit.

Eight years after the alleged crime itself, it is reasonable to ask if this is more about Manhattan politics than New York law. This case should serve as a cautionary tale about broader prosecutorial abuses in America — and promote bipartisan reforms of our partisan prosecutorial system.

Nevertheless, prosecutors should have some latitude to develop their case during trial, and maybe they will be more careful and precise about the underlying crime, fraud and the jurisdictional questions. Mr. Trump has received sufficient notice of the charges, and he can raise his arguments on appeal. One important principle of “ our Federalism ,” in the Supreme Court’s terms, is abstention , that federal courts should generally allow state trials to proceed first and wait to hear challenges later.

This case is still an embarrassment, in terms of prosecutorial ethics and apparent selectivity. Nevertheless, each side should have its day in court. If convicted, Mr. Trump can fight many other days — and perhaps win — in appellate courts. But if Monday’s opening is a preview of exaggerated allegations, imprecise legal theories and persistently unaddressed problems, the prosecutors might not win a conviction at all.

Jed Handelsman Shugerman (@jedshug) is a law professor at Boston University.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

Follow the New York Times Opinion section on Facebook , Instagram , TikTok , WhatsApp , X and Threads .

The ethics of eating monsters

From "star wars" and cannibal films to "delicious in dungeon," what – and who – we eat prompts navel-gazing, by michael lee.

His hair was a mess of seaweed, the straggly green strands bobbing up and down on the surface of the water. His expressionless face looking skyward, drained of its life. How he died, they didn’t know. How long he’d been there, they couldn’t tell. He wasn’t exactly human, but some of his features were at least human-like. The party needed sustenance, but looking at this poor creature, floating lifeless in the water, they wondered: “Could we eat him?”

"Delicious in Dungeon" is an anime about food. It is an anime about food and all that food represents as part of human culture. Flavors that excite. Memories recalled by the sensation of taste. The aesthetics of a well-plated entree. The sociology of eating a meal together. Love. And even the ethical considerations we make in our consumption.

It’s that last point that really sets "Delicious in Dungeon" apart from so much of the media on food out there in the cultural zeitgeist. 

Star Wars, throughout its history, has included scenes that allude to an ethics of consumption in its galaxy far, far away. But strangely, these scenes rarely include a confrontation of the ethics (or lack thereof) they depict; rather often these scenes are merely played for laughs. In "The Last Jedi,"  Chewbacca eats a roast Porg in front of a group of Porgs. The adorable creatures look up with their saucer-sized eyes as one of their own is about to be consumed by the Wookiee. Some of the comments on the YouTube video of this scene talk about how funny it is, which is a fair read as it is played in a humorous manner – even as it depicts something horrific for the Porgs, who clearly are sentient beings. Chewbacca shoos the Porgs away so he can eat in peace.

Star Wars, throughout its history, has included scenes that allude to an ethics of consumption in its galaxy far, far away.

Meanwhile, on "The Mandalorian,"  a Kowakian monkey lizard is seen roasting on a spit as the camera slowly pans down to show us another of the monkey lizards in a cage watching his friend slowly roasting over the open flame. He looks distressed, but his horror feels like it’s also being played up as comedy. While these animals have previously been depicted as a nuisance (you may recall Jabba the Hutt's cackling pet Salacious B. Crumb), a scene later on in the series shows the monkey lizards to be quite helpful, warning Mando of an ambush . At what point does an animal go from being simply food, to having a level of intelligence that might make us think twice about whether people in this world should be eating them? 

Unfortunately, Star Wars never really interrogates the ethics of eating. Then again, it isn’t often that the ethics of eating are ever considered in fiction, which is why "Delicious in Dungeon" is such a standout series. Among the many things it does right is it gets us thinking, really thinking, about our relationship to food.

When we write about food, so often it is experiential. It’s understandable, as consuming food is sensory. Food ingrains itself into our brains, into our memories, into our soul so much so that we can’t help but enter a confessional mode of speaking when we talk about it. Food has a strange intimacy to it that allows for such emotional response. But writing on food also speaks to the solipsism of our cultural times , where we place more value in something as an experience and are insistent on including ourselves in our writing. We get absorbed in our own navel gazing. Our relation to food, and the way we talk about it, becomes limited to the personal. Our connection to food is between us and the plate in front of us.

It’s also a sign that we live in outrageous excess that we can wax poetic about an ice cream sandwich the way that only King Louis XV could talk of his love for coffee or bouchée à la reine. Don’t ask an 18th century French peasant how their bread was that day. They’re not performing a monologue and giving that s**t five stars. They’re just happy to have food on the table. We’d rather write about how a heavenly bowl of ramen transformed us rather than grapple with the ethics of what went into the bowl itself. Don’t tell me about the little piggy that sacrificed itself to become chashu for my tummy. 

“ To exist the body needs to take in corpses, things torn up by the roots, ripped out of their natural environment . . . This is the tragedy of eating. Eating always implies sacrificing something, eating must always have a victim, and there is always something or someone who has to die when others eat. ”

–Danish Author Christian Coff

We think very little about where our food comes from. We often don’t want to think of the barbarism of the act, which is why slaughterhouses and factory farms are often located out in the middle of nowhere. Out of sight, out of mind. We may be vaguely aware of modern animal husbandry practices, some of us may have even read "Omnivore's Dilemma" author Michael Pollan ’s seminal 2002 essay " Power Steer ," but what do we really know about the animals that end up on our plate? The truth is we don’t want to know. Our heroes in "Delicious in Dungeon" have no such luxury of distance to shield themselves as the immediacy of the next meal requires them to be involved in the entirety of the food process. By centering food in this way, the series opens up discourse on how, in fact, our lives revolve around food, and challenges some of our thinking on food consumption.

It’s a delicate balance, between the aesthetic and the ethical. The sensation of taste and the pleasure food brings versus the maintaining of a sense of rightness in how we pursue these pleasures. "Delicious in Dungeon" makes attempts to examine this balance through the viewpoints of the main party members. Senshi, a Dwarf and the party’s cook, advocates for a kind of utilitarian conservation. Respecting the balance of nature and taking only what one needs. His concern lies with maintaining the ecosystem of the dungeon. Senshi doesn’t kill for the thrill of the hunt or take more than the party needs to survive. But he does concede that something needs to be sacrificed so the party can eat. Which is why he believes that one must enjoy the meals made from the monsters in the dungeon. To turn one’s nose up at a dish would be disrespectful to the animal that was sacrificed. 

It’s a delicate balance, between the aesthetic and the ethical.

Such is the case with the merfolk that Laios wants to eat. The compromise reached between Chilchuck and Laios is that Laios can use the merfolk’s seaweed hair in a dish, but he also sneaks in some of the merfolk’s eggs, which in the lore of "Delicious in Dungeon" are kept in the hair to protect them from predators. When Marcille notices little pops of flavor, Senshi muses that they must be fish eggs, to which Marcille responds, “They’re delicious!” 

This gets at one of Korsmeyer’s points on the nature of taste sensation: “If one finds a food delicious, then one tacitly recognizes it as good to eat — that is, as nontransgressively edible, in a permissible food category.” Marcille’s reticence towards eating monsters is overridden by her lack of knowledge (or willful ignorance) of a food item’s origin and by the taste being delicious. We do this in the real world too – turning a blind eye to a food’s production when it tastes good. We’re quick to put something into the nontransgressive category simply because we like it. Foie gras anyone?

Human flesh might be the only true universal taboo, but there are a number of foods that for religious or cultural reasons are off limits. To consume them would be to consume something that is transgressively edible, deliberately in opposition to societal norms. In Hinduism, the cow symbolizes a life of nonviolent generosity and has been venerated for millennia as an "unslayable" animal. The pig is considered haram (forbidden) in Muslim cultures. But there are also taboos not based in faith, where a food consumed in one place is frowned upon in another. For example horse meat is consumed in a number of countries in Europe and Asia, but the UK, United States, Canada, Greece and others consider it taboo. Often it is the relationship to a certain animal that can make the consumption of that animal’s flesh a transgressive act. In the world of "Delicious in Dungeon," transgression occurs when someone is willing to take a bite out of a demi-human.  

We need your help to stay independent

It’s here that we get into the way culture and norms shape what foods we see as taboo. From Chilchuck’s perspective, a demi-human has too much in common with a human to be eaten. He notes that the merfolk Laios wants to eat holds a trident as a weapon, making the conclusion that merfolk are smart enough to use tools. He also sees human-like features in the shape of the merfolk’s hands. Laios quickly retorts that humans actually have more DNA in common with the cows and pigs they eat every day and that merfolk are nothing like humans at all.

Erin McKenna, in her essay “Eating Apes, Eating Cows,” examines how different cultural narratives inform eating decisions and what we consider to be off limits. For Americans, the idea of eating a chimpanzee would be an unthinkable taboo. We are “fascinated with accounts of the intelligence and emotional lives of animal beings such as chimpanzees, gorillas, and orangutans, but there is still a general disbelief when it comes to accounts of intelligence and emotions of animal beings we generally consider livestock.” We suppress any feelings or beliefs that contradict this, by denying that cows and pigs have intelligence and are emotional beings, in order to justify eating them because we think they’re tasty. Despite the thousands of years of cattle domesticity and that connection through history, our relationship to cows is now one of complete dominance, we force dairy cows to produce ten times their natural amount of milk they would produce when raising a calf, which means that a dairy cow now only lives an average of six years, compared to a normal lifespan of 15-20 years. These animals live sad lives for our sake.

Laios’ approach to life in the dungeon is to eat everything he comes across. He is fanatical about monsters; their physiology, their behaviors and, perhaps most importantly to him, their taste. He is compelled by his consumption, which gives him an almost inhuman aura, yet what appears to be a complete lack of any ethics might be a philosophy in itself. Back to Christian Coff again, who states, “Living beings, including the human being, must eat to stay alive: what is eaten is the world. The need for nourishment forces organisms to open up to the outside world and to develop senses orientated towards the outer world.” Hunger makes one reach out into the world and gain understanding through this opening up to it. We often say that someone is “hungry for knowledge” and here we have Laios who seems to be taking the idiom literally and expanding his world through the act of eating. 

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter , Crash Course.

And if we reframe Laios’ hard-headed approach to eating anything and everything as wholly indiscriminate in this manner, tying it into the idea that we are all, equally, part of a circle of life, that we eat or are eaten , his philosophy is perhaps most in tune with the dungeon that sits at the center of "Delicious in Dungeon." He respects all living creatures equally, but with that, his moral stance is that they are all food, only because they would also make food of him should they be given the chance. The dungeon is the alpha and the omega, it is life and death, for every creature to be found there. After all, it's his sister who was swallowed (but not yet digested!) by a red dragon that has prompted Laios' ongoing quest to save her before it's too late. Is it wrong if he enjoys a few meals along the way?

"Delicious in Dungeon" is an anime about food. It is an anime about food and all that food represents as part of human culture. We will all, one day, become food in some form. Buried in the ground, returned to the soil from which grass will grow and be grazed upon by animals that will end up on a dinner plate somewhere. Eat or be eaten, there is no escaping it. 

"Delicious in Dungeon" is streaming on Netflix.

about food narratives on TV

• Jell-O, nostalgia and Nuka-Cola: The subtle genius of the food of "Fallout"
• "The Bear" showed us how easy it is to care for people, three eggs at a time
• How the creators of HBO Max's "Julia" painstakingly recreated The French Chef's kitchen
• The real star of FX's "The Bear"? San Marzano tomatoes

Michael Lee is a writer who might take anime and video games a little too seriously. For more musings on animation, fandom and game worlds, follow him on X @kousatender .

Related Topics ------------------------------------------

Related articles.