“Why am I Exploited if I’m Paid but not if I’m Not Paid?”: Exploitation, Commodification and Commercial Surrogacy Tammy Johnson

Surrogacy Regulation Principal Research Question –Should commercial surrogacy be prohibited in Australia? Subsidiary Research Questions –Is commercial surrogacy harmful? Does commercial surrogacy exploit surrogates? Does commercial surrogacy commodify children?

Surrogacy Definitions Altruistic –no payment except for reimbursement of expenses Commercial –payment made in addition to reimbursement of expenses Traditional –surrogate’s ovum is fertilised by the intending father’s (or donor) sperm Gestational –surrogate is not genetically related to the child.

Commercial Surrogacy Some arguments against: –Exploits surrogates –Commodifies children (and, potentially, surrogates) –Potential for Physical harm (to surrogate and, perhaps, child) Psychological harm (to surrogate and/or child) –Breaks down traditional family norms

Harm and Commercial Surrogacy Harm Principle: ‘the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.’

Harm and Commercial Surrogacy Harm Principle Preservation of liberty is paramount Coercive measures only justified where conduct harms (or has a risk of harming) others BUT, the Principle, in its current form: –Is vague, could be relied upon to justify virtually unlimited state interference –Requires clarification and determination of scope

Harm and Commercial Surrogacy To be a useful normative tool, need to define ‘harm’ Feinberg’s analysis is useful Harm = wrongful setback of a person’s interests Setback to interests –Welfare interests v ulterior interests Wrongful conduct –Illegitimate or inexcusable attack on welfare interests of others –Exclusions

Harm and Commercial Surrogacy In calculating harm, consider: –Magnitude –Probability –Aggregative effect –Relative importance Prohibition is justified only where harm is significant in both probability and magnitude

Exploitation What is exploitation? –Means to an end v Ends in themselves –Slavery v Autonomy Is it harmful? –Does it constitute a wrongful setback of the surrogate’s welfare interests? If so, is the probability and magnitude of harm significant?

Commodification What is commodification? –Creating a market ‘the process of something becoming understood as a commodity, as well as the state of affairs once this has taken place.’ –Putting a price on human life Is it harmful? –Does it constitute a wrongful setback of the resulting child’s welfare interests? If so, is the probability and magnitude of harm significant?

Policy Considerations Legislators must ensure that surrogacy legislation: –Protects the best interests of the child –Respects the privacy of the parties –Ensures informed consent Requires parties to undertake appropriate counselling and obtain legal advice prior to agreement –Provides appropriate mechanisms for transfer of legal parentage of the child

A Parting Thought Consider the words of a child born through commercial surrogacy: “Commercial surrogacy didn’t change my life. It gave me life.” Matt Mills (15), Surrogacy Australia Conference, 7 April 2013, Melbourne.