In 2004, the Canadian government passed the Assisted Human Reproduction Act (AHR Act) that was designed to “prevent the commercialization of surrogacy and sperm and ova donation” in Canada (Health Canada, 2019). The AHR Act states that “no person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid” (Government of Canada, 2019). Despite the strict prohibition on surrogacy, Health Canada acknowledges that reproductive donors and surrogate mothers should not be out-of-pocket for expenses they pay because of their donation or surrogacy. As a result, new regulations for reimbursement will be in effect June 2020 after the increased number of calls for legal reform on the current policy. In this paper, I will argue that the proposed rules will reduce exploitation of surrogate mothers in Canada because regulation will help protect surrogate mothers from coercion and unfairness, recognize the dignity and value within surrogate mothers, as well as improve autonomy for women to demand better terms.
In Canada, there is an increasing demand for commercial surrogacy. However, there is concern that by increasing access to reproductive services, this could lead to a rise in coercion, exploitation, increased health risks for surrogate mothers and further commodification of women’s bodies (Barns, 2019). In order to argue how the new rules will reduce exploitation, we must first define what constitutes as exploitation that I will present in two accounts. Firstly, an exploitative transaction defined by Wertheimer, is one in which party A takes unfair advantage of party B. Wertheimer claims that the transaction must come about through some special advantage in which the exploiter reaps the benefits upon the pursual of the exploited individual (Wertheimer, 1996). Considering surrogacy specifically, there is great potential that prospective parents, surrogacy agencies and governing bodies are taking unfair advantage of surrogate mothers for their reproductivity if not compensated fairly.
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To narrow our focus of exploitation, Wertheimer suggests that mutually advantageous exploitation is a feasible concept. Mutually advantageous transactions may occur in the context of a “market for goods, services, or employment where A may take unfair advantage of B, however B still receives some benefit despite the exploitation” (Wertheimer, 1996). I would argue that the exploiting parties use the surrogate’s uniquely female ability to procreate as a vulnerability and exploit her willingness to perform that task altruistically. In exchange for carrying the child, the current legislation does not allow for much mutual advantage to come to the mother by prohibiting payment for surrogacy. The AHR Act does not specify what can be reimbursed and allows for wide interpretation of what constitutes a “reasonable expense” (Salfi, 2019). This process is onerous under the stipulation that required documented receipts and proof of purchase are necessary to receiving reimbursement. Some may claim that the ambiguity allows flexibility in the fertility arrangement process, though I would disagree on the grounds that regulation would offer more certainty about which reimbursements are legitimate and to alleviate fears of being subjugated to criminal punishment.
Another account of exploitation that adds on to Wertheimer’s theory is illustrated by Sample who describes exploitation as “interacting with another being for the sake of advantage in a way that degrades or fails to respect the inherent value in that being.” Essentially, it is the lack of this respect that elucidates the immorality of exploitation (Sample, 2003). Sample states that there are three ways to disrespect someone including “failing to respect a person by neglecting what is necessary for that person’s well-being or flourishing”. Secondly, we can “fail to respect a person by taking advantage of an injustice done to him”. And thirdly, we can “fail to respect a person by commodifying, or treating as a fungible object of market exchange, an aspect of that person’s being that ought not be commodified”. Applying Sample’s theory to commercial surrogacy in Canada, I would argue that the prospective parents play a significant role in the exploitation of surrogate mothers using them as a means to an end to receive their child. However, I would also make the account that it is the federal government’s role that allows exploitation as degradation to occur based on the current rules they have put in place. Though macro-level governments are assumed to have the population’s best interest at heart, unintentionally, this could be exploiting the people these rules were originally meant to protect. Sample states that any account that ignores the intrinsic worth in a person, as opposed to price, could be grounds for exploitation as degradation. Therefore, exploitation as degradation is clearly evident in the criminalization of illegal commercial surrogacy as it fails to respect and recognize the value and dignity of any woman to choose what option is best for her and her existing family.
Furthermore, if we are saying that the gift of life via a woman’s body ought not to be commodified and should not be monetized, isn’t paying for some restitution still the least prospective parents can do? Does the reimbursement of minimal health services she received during her pregnancy truly enhancing the welfare of the surrogate mother, allowing her to flourish and succeed post pregnancy? No, it does not enhance her welfare fairly. In order to eliminate the idea of exploitation as degradation, the respect of the person’s intrinsic worth must be considered, leaving the mother in a better place than how she started. Additionally, it is also important to acknowledge that society tends to push a rather negative narrative of the need to “rescue women”. Alternatively, this actually discounts the resilience of women and does not give credit to the individual for having autonomy to decide that for herself. For some individuals this type of work is what they truly want. They do not need to be “rescued” from the commercialization of surrogacy. They simply want to be compensated for their time and work. The institution of “work” is an essential and normative human activity, essential because it obtains resources and material needs and normative as it is viewed as an expression of an individual’s moral subjectivity (Limki, 2017). Similar to the conversation surrounding sex work, the underlying factor is that sex work is work and therefore it should be treated as an occupation that receives monetary payment for their services and I think surrogacy should be treated as the same.
Women, not only in Canada but also across the world, deserve to have the ability to demand better terms while having the autonomy, bargaining power and choice to decide what to do with their bodies and at what cost, physically, mentally, emotionally and financially. With women’s rights acting as a central pillar of my argument, the regulation of surrogacy will help change the narrative from the idea that women are “baby machines” and merely the “incubators of men’s seeds” (Tobin, 2014) to empowering women to seek fair, safe, and just transactions. Humbyrd claims that the “moral wrong of manufactured procreation is rooted in a religious or metaphysical view of how reproduction should occur” (Humbyrd, 2019). This ideology is extremely problematic to modern day women because it is predicated on the naturalistic misconception that assisted reproductive technologies are morally wrong because they are not natural. Humbyrd emphasizes that mutually advantageous exploitation can be mitigated by adequate compensation and a shared collaboration of developing terms of negotiation. Moreover, in fairness to all parties involved, including the intending parents and baby, there needs to be further societal and legal recognition of other diverse family forms, such as LGBTQ + 2S couples, who heavily rely on adoption and assisted reproductive technologies to create the families they so greatly desire. Therefore, regulation not only provides advantages for surrogate mothers but can also reduce discrimination when it comes to building a family.
When discussing controversial topics, especially relating to health and human rights, it is important to demonstrate reflexivity to truly understand the impact that decisions and policy changes have. There are many critiques that illustrate the moral concerns for regulating surrogacy. The first critique is that regulation will allow the federal government to hold onto their power over women’s bodies, arguing that it is unethical to construct businesses on women’s procreative capacities. This argument can be tied to the commodification of things ought not to be commodified, however the advantages of giving autonomy to women seem to outweigh the ethical and religious concern of commodification. My greater concern would be ensuring that a comprehensive collaboration is conducted with female ministers, healthcare professionals, experts, and other surrogate mothers to assess what is needed and taking proper measures to mitigate risk. Appropriate regulation would include transparency, clarity, negotiation of terms, and protection of rights, upholding the safety and consent of all parties involved. Another big concern is that the regulations will likely make it even more difficult to access assisted reproduction. The fear is that it will further discourage individuals from becoming surrogates and donors. The “one size fits all” approach will not fit every case, where every pregnancy and fertility arrangement is different. Thus one may ask, if every scenario is different, then why bother putting a price on surrogacy? You could argue that this type of transaction involves deeply incommensurable goods and therefore a fair market price is not achievable if you cannot price a product. In rebuttal, the harsh reality is that the “baby trade” will not stop with bans on commercial surrogacy. Commodification will still continue to take place only they will transcend borders. Now, by increasing the safety of regulations here, we can keep our women safe. The flip side of this is that if people still choose to seek surrogacy abroad, the movements will expose international surrogate mothers to greater risks. By establishing the monetary value of surrogacy in Canada, this inherently exploits underdeveloped countries as this continues to enable economically equipped people to purchase the procreative labour of vulnerable women’s bodies. Internationally, there is much evidence that surrogacy clinics have a large amount of power and control over the process. It is true that many surrogates are required to live in surrogacy hostels for the duration of their pregnancy, isolated from friends and family. In shifting the access to surrogacy to developing countries, such as India, the perpetuation of exploitation continues behind closed doors. In this way, the international risk criticism acts as the most plausible critique and therefore would pose recommendations for a joined-up global approach to mitigating risk of exploitation via surrogacy that would be extremely helpful for places like India, in hopes of a better and safer life for all.
There is no unanimous view of how the law should be reformed to bring about such certainty as there are many strong arguments for and against the commercialization of domestic surrogacy in Canada. The critiques made above are powerful, however, the overall criticism of why commodification of surrogacy is morally wrong misses the mark. The current legislation forces surrogate mothers to act on altruistic motivations, giving the gift of life out of the kindness of their heart. The fact that the current system states that there is no obligation to reimburse surrogates for expenses incurred for their service is alarming. The original Assisted Human Reproductive Act, developed in 2004, is simply outdated and requires adjustments to the changing and flourishing age in which we live in today. Sample states that “not everyone agrees that the various abilities, capacities, talents, and even parts of persons may not be bought and sold,” but if the argument solely remains rooted in religious and personal beliefs, than it should not be used for grounds to defend why Canada should not adopt new regulation. A narrowminded framework will not be suitable for Canada’s diverse population where a nationwide policy change should consider the values, rights and freedoms of all its members. Therefore, we should recognize the difficulty in creating criterion for fair division of payment, continue to support political reform of the modern law with regulation, not prohibition.
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