“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.