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Surrogacy – redux April 27, 2012

Posted by WorldbyStorm in Uncategorized.
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Breda O’Brien was talking, coincidentally – given this post put up the week before last here, about surrogacy again. It’s strange. Bioethics is like catnip to me. In part because I have a passing acquaintance with some aspects of it, but perhaps more so because it so indelibly seems to be the future, like it or not. Anyhow, surrogacy… Using the Father Reynolds case as a hook with which to impale RTÉ for ‘bias’ she asserts:

There is a strong sense of mission in RTÉ, a desire to hold institutions and individuals to account, and to effect positive change. However, if a team becomes convinced they know the best “way forward” and are doing society a service by nudging it in that direction, the danger is that fundamental journalistic standards will be flouted.

And that:

I believe there is a “liberal bias” in RTÉ, although I prefer to call it an “illiberal bias”. True liberalism defends the expression of ideas with which it does not agree.

And also:

There is also a liberal bias in this paper. The difference is The Irish Times makes this clear, and people who buy it know what they are getting. RTÉ, as a public service broadcaster, has a very different remit. I would like to think people also buy this paper because it does its job well, and by and large, reports events fairly and accurately. RTÉ also does a very fine job with limited resources.

So she gives an example:

Even when potential problems are pointed out, RTÉ does not change. On a recent Prime Time programme on surrogacy, I said I would not appear as someone opposing surrogacy after a package full of beautiful babies, and grieving mothers who could not regularise their children’s situation, unless the package also tackled the serious ethical and moral dilemmas of surrogacy.
My request was ignored. Miriam O’Callaghan referred on air to the package as “positive towards surrogacy”. I was given four uncontested minutes to redress the emotional priming of the nine-minute package, followed by an interview with Minister for Justice Alan Shatter, who intends to legislate for surrogacy. This was considered balance. Not so much Prime Time, as “priming time”.

A number of thoughts are raised by this. Firstly O’Brien is coy about her own position. That ‘people might know what they are getting’ she might note in the article that she is no disinterested observer on these matters but is in fact a member of the Iona Institute, a socially (and to some degree economically) right of centre Catholic entity. No disgrace there, but something that should be made clear from the off. And it’s not as if she didn’t have an opportunity to do so. She says the following:

Valid points were made in the “package” preceding the studio discussion, such as when commentator David Quinn said Fr Reynolds was “fortunate” to have been accused of a crime which could be scientifically disproved, that is, of fathering a child. Had it been “merely” rape, there would have been no chance of reclaiming his good name.

David Quinn is, of course, another member of the Iona Institute.

Secondly, and in a way this is a more serious issue, she posits the concept of ‘balance’. But she, of all people, should know, as was noted here the week before last, the single best appraisal of the area of reproductive technologies and issues conducted in this state was the Commission on Assisted Human Reproduction which reported in 2005 and whose findings have subsequently been sat upon by successive governments. And the findings of that report were strongly, overwhelmingly in fact, in support of surrogacy arrangements being introduced. In that context what is the nature of ‘balance’? She doesn’t represent, as best as can be judged, a mainstream view on these matters at least in regard to various stakeholders appointed by the state to examine the issue, but an outlier, and a very very marginal one at that.

And in both pieces on the issue she has remained silent about that report, perhaps because it is so profoundly inconvenient to her thesis.

What’s interesting though is how Iona itself will use cherry pick reports as they see fit. As one comment under the O’Brien article notes, their approach to gay marriage is a particularly revealing example of same. But so is their coverage on their website. Unlike O’Brien they actually mention the Commission for Assisted Human Reproduction:

The Government-appointed Commission for Assisted Human Reproduction recommended in 2005 that in surrogacy arrangements, the commissioning parents be deemed to be the legal parents.

One of the members of the commission, Christine O’Rourke, expressed dissent about this recommendation, saying that “the risks of exploitation and commodifcation” accompanying surrogacy outweighed its benefits.

Ms O’Rourke, Advisory Counsel to the Attorney General at the time, expressing her dissent in the CAHR’s report, recommended instead that surrogacy be prohibited.

She said that there was “a broad cultural consensus that a woman who has just given birth may be uniquely vulnerable and the removal of her baby against her will is repugnant, unless she poses a threat of immediate harm to the child”.

She added: “This social norm is reflected in Article 10(2) of the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR), which obliges Contracting States to accord special protection to women who have just given birth.”


But even this is misleading. Let’s quote the CAHR Report again:

The majority of members were in favour of regulating surrogacy, and all members were strongly of the view
that commercialisation of the practice should not be permitted by the regulatory authority.
One member was strongly opposed to regulation and took the view that surrogacy ought to be prohibited.

Presenting the report in the way Iona does is to ignore the almost total agreement on the CAHR.

Does O’Brien represent a broader societal view? Perhaps, but we have no means of knowing how broad that view is in the absence of polling data (which I haven’t been able to find as of yet, though if it exists I’d be very grateful for links).

I’m not for a second denying O’Brien the right to represent her viewpoint or to promote this on RTÉ or wherever. Though in truth if she is getting four minute slots and newspaper column inches to do so she’s hardly in a marginalised position given the weighting we saw on the CAHR on the issue. Nor am I disputing that this is a difficult enough area which demands careful consideration – though I’m not antagonistic to surrogacy. What I am suggesting is that on this issue she protests too much and as I noted last week her shaping of her response to surrogacy is profoundly flawed.

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1. dmfod - April 27, 2012

In fairness, I think that aside from her god-bothering pro-life arguments, Breda O’ Brien has highlighted some important problematic aspects of surrogacy. Perhaps disingenously, she has pointed to the danger of exploitation when Western couples rent out the bodies of poor women in developing countries like India for this purpose.

Pregnancy is inherently risky for women, even nowadays, as numerous potentially life-threatening conditions can arise, in addition to the psychological, emotional and marital problems involved in being a surrogate and the real possibility of damage to surrogates’ future capacity to bear children of their own. Indian surrogates are also often required to spend most of their pregnancy confined to a special home/medical facility, often far away from their homes and families, so that their food intake and incubatory health can be monitored on a continual basis. In some instances, they may prefer this, due to the stigma attached to being a surrogate in many parts of India, which could result in social ostracisation if discovered.

There are huge power issues in all this, as it esentially involves people who are much richer and hence more powerful renting out the bodies of poor women for a pittance by Western standards, with local agencies in the middle staffed by middle class medical personnel who make a lot more money out of it than the surrogate.

In situations where surrogacy leads to the woman having to undergo a hysterectomy, it becomes somewhat analogous to buying/selling kidneys, which most people would regard as ethically problematic. There are also parallels to some extent with sex tourism, in the sense that both involve comparatively rich Westerners renting out the bodies of poor women for a limited period, both pose significant physical and psychological risks to the women, and both typically involve middlemen making significantly more profit than the women.

The major differences are that the rental period in surrogacy is much longer and that the motive for surrogacy is seen as benign. However, the same could be said of commercial kidney donation, which is arguably ethically superior in that an existing life is saved, rather than a new one created. Another significant difference is that surrogacy ‘only’ involves risks to physical health, whereas health problems are almost inevitable with kidney donation. These problematic aspects need to be carefully considered, rather than just ignoring them because of the terrible trauma suffered by infertile Western couples, the happy end result when surrogacy goes right for them and because we think the motives are better.

I agree with O’Brien that the Prime Time package was ridiculously biased. The only reference to the surrogate’s point of view came filtered through the Irish mother, in a brief clip where she said how wonderful the experience had been for all involved, including the surrogate. We didn’t get to hear from the surrogate, or indeed any surrogate, and there was no mention of any of the potentially negative aspects for them, which I have seen covered in other documentaries.

Another dimension is the agency of the women involved – some postmodernist feminists argue it’s patronising to assume surrogates are being exploited, as surrogacy may well be the best choice available to them in a situation of financial desperation and can give poor women a large sum of cash all at once that they can invest to permanently improve their living standards, educate their children etc. This seems valid to an extent, but raises the question as to why most people would probably be opposed to commercial surrogacy here but seem to think it’s ok in a poor country, where the women are paid a lot less and aftercare is probably much worse.

Apologies for the length of this post!

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WorldbyStorm - April 27, 2012

No apology necessary. One thought though. I’m entirely open to the idea that surrogacy is open to exploitation, but what irks me about O’Brien – and I dealt with this in much greater detail in the previous post on the topic a few weeks back – is that she effectively shuts out any mention of surrogacy in non-exploitative/altruistic contexts and in particular in the US / UK context.

Beyond that I’ve mixed feelings on commercial surrogacy wheter here or abroad. I think it depends on a raft of factors including the society in question, and most importnatly the attitude of the surrogate and consent/knowledge of the area. Wendy’s piece on same here is strong.

http://feministire.wordpress.com/2012/03/03/on-surrogacy-slavery-and-choices-my-response-to-breda-obrien/

By the way, on a fair old tangent in relation to infertility, it’s of course something that isn’t restricted to Western couples andcan be particularly devastating for women especially in societies where there are profoundly patriarchal societal structures.

Uh-oh, that’s at least three or four thoughts…

And here’s the original post where O’Brien’s thoughts were discussed here…http://cedarlounge.wordpress.com/2012/04/10/surrogacy/

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Mark P - April 27, 2012

Wendy’s piece certainly pulls apart some of the contradictions in O’Brien’s uber-Catholic stance, but I’m not so sure that it serves as much of a response to dmfod’s arguments, which don’t carry with them any religious baggage.

Personally, I’m always immediately wary of any argument which defends an exploitative relationship on the grounds that being exploited is a “rational choice” for the person on the receiving end, give their terrible circumstances. Nobody here would buy that for a second if we were talking about employing people in sweat shops.

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WorldbyStorm - April 27, 2012

I’m interested in your thoughts on altruistic surrogacy. Or those as quoted in my original piece who are surrogates for for example gay couples and see it as something they see as societally valuable.

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Mark P - April 27, 2012

I don’t really have any particularly developed thoughts on those issues, WbS! In much the same way that I’ve never really thought too hard about the issues surrounding altruistic kidney donation, but am pretty sure that I’m against allowing people to buy kidneys from the desperate.

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WorldbyStorm - April 27, 2012

Well me too both in relation to kidneys and surrogacy. And that’s why I said in the OP that ‘I’d be very dubious about surrogacy in potentially or actually exploitative contexts’.

But I’m not agin it in non-exploitative contexts where those involved but primarily the woman have a solid knowledge of what is happening. And it’s my impression that such contexts do actually exist.

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Wendy Lyon - April 27, 2012

If we were talking about sweatshops, nobody here would be arguing that they should all be simply shut down and their employees left with no work at all (or forced to take on work that is even more exploitative). We would be talking about the need for enforceable laws and regulations to protect the workers from exploitation. This is not possible where the work itself is illegal, as O’Brien would have for surrogacy.

It’s very likely, of course, that some of the Indian women who have become surrogates have done so as an alternative to working in sweatshops (or similar). Debating whether that choice is “rational” or not seems to me to entirely miss the point. The question is whether it does them a favour to prevent them making it at all, and simply consign them to the sweatshops until such time as less exploitative options are available. I haven’t seen a convincing argument that it does.

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Mark P - April 28, 2012

Do you have a moral problem with people who exploit desperation?

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Mark P - April 28, 2012

And, as an aside, do you take the same position on people who buy kidneys?

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Wendy Lyon - April 28, 2012

I have a problem with reducing the complex circumstances that shape people’s lives and decisions to simplistic morality plays. I don’t like the guy who owns the sweatshop, but my concern for his employees is going to centre on how to improve their material conditions, not on how to punish him for his dastardly behaviour in taking advantage of them.

The kidney issue is an issue of the trade in goods and I’m not sure it’s appropriate to view it through the same framework as labour issues. I’d also note that it’s both an essential and a non-renewable good and that seems to be the major source of controversy around it – the markets for plasma, hair and eggs, for example, aren’t seen as posing the same ethical dilemmas. If it doesn’t follow that because we accept the latter, we have to accept the kidney trade, I certainly don’t see why that would follow from accepting the practice of surrogacy.

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WorldbyStorm - April 28, 2012

Wouldn’t it be much better. less confrontational and more useful to sit down and calmly work through Wendy’s thinking on this issue than ascribing what you know aren’t views she holds to her?

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Mark P - April 28, 2012

They were really meant as questions, not as an attempt to ascribe views to her!

I quite genuinely did not know where Wendy stands on these issues after reading her views on surrogacy (and also for that matter prostitution), which do not seem to treat the role of “customer” as particularly problematic.

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Mark P - April 28, 2012

Thanks for the response, Wendy.

I’m not sure however that reducing all moral concerns to “a morality play” is particularly useful. To disapprove of someone’s behaviour, and even to think that it should be outlawed, is not quite the same thing as reducing the issue to a morality play. What’s more I think that you are setting up a false opposition between preventing exploitative behaviour and improving the lot of the exploited.

Further, I think it’s a mistake to view something as intimate, invasive, risky and relentless as pregnancy as a “labour issue”, but I suspect that we aren’t going to agree on that, given that I also think that the attempt to reimagine prostitutes as “sex workers” is misguided at best.

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Wendy Lyon - April 29, 2012

To disapprove of someone’s behaviour, and even to think that it should be outlawed, is not quite the same thing as reducing the issue to a morality play. What’s more I think that you are setting up a false opposition between preventing exploitative behaviour and improving the lot of the exploited.

Well, you’re the one who responded to two paragraphs about what might actually happen if that behaviour was outlawed with a one-liner suggesting that the moral question was the only relevant one. If you have any actual suggestions as to what less exploitative alternatives are available to the women who you would prevent from becoming surrogates, please share.

I think it’s a mistake to view something as intimate, invasive, risky and relentless as pregnancy as a “labour issue”, but I suspect that we aren’t going to agree on that, given that I also think that the attempt to reimagine prostitutes as “sex workers” is misguided at best.

Providing a service in exchange for payment is labour, by definition. It’s a value-neutral term, whatever your (or anyone else’s) views of any of the activities it describes.

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WorldbyStorm - April 28, 2012

Well, asking someone if they have a moral problem with people who exploit desperation seems just a tad leading – no?

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2. dmfod - April 27, 2012

Just read your earlier post, which I had missed. Surrogacy does pose different issues in different contexts and I also read ‘Everything Conceivable’ after seeing it recommended on this site. It’s a really fascinating book but is US-focused and doesn’t deal with any of the transnational aspects. The US surrogate you quoted was also unusual, as according to the book the majority of US surrogates come from lower income groups and are generally less well educated than the commissioning couples, showing how issues of power and class also arise with domestic commercial surrogacy.

Commercial surrogacy probably won’t be allowed here, but there’s unlikely to be enough altruistic surrogates to meet demand, or there wouldn’t be such a market for it in the US where both are legal. This means surrogacy tourism to poor countries isn’t going to go away just because altruistic surrogacy is legalised.

Altruistic surrogacy would also have to be really carefully regulated to ensure everyone goes into it with their eyes open and nobody gets hurt. It gets even more complicated if donor sperm and/or eggs are used, as the child can end up having 3-5 parents of one kind or another. In this respect, I’m sympathetic to people conceived by anonymous sperm donation who liken their situation to anonymous adoption and this is multiplied when there’s an egg donor and a surrogate who mightn’t want to be contacted when the child grows up.

I don’t normally quote human rights treaties, but it is in the International Convention on the Rights of the Child that all children have the right to know their parents. Who the parents are is open to debate and plenty of adoptees don’t ever want to meet their birth parents, but enough do that it’s safe to assume the same will happen with children born through surrogacy/egg/sperm donation.

Given we know this in advance, it needs to be provided for – even, I think, if it means fewer children get born. I haven’t fully made up my mind about this as infertility is awful too, but I’m not sure anonymous and/or no contact surrogacy/sperm/egg donation should be allowed. It’s not the same as adoption, as the decision is being taken consciously in advance to conceive a child who won’t be able to find out who all its ‘parents’ are.

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dmfod - April 27, 2012

Btw the above means I’m in favour of properly regulated altruistic open surrogacy and/or open egg/sperm donation.

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WorldbyStorm - April 27, 2012

I agree with you there are class implications to this (and even in terms of IVF much the same is true – I mentioned a few years back how the then tax regime on Med 1’s predicated against those on lower rates of tax getting refunds for procedures like IVF, which immediately gifted an advantage to those with deeper pockets – I’m not sure if that’s been standardised tax wise, but obviously those with more money can have more attempts at it). But, that’s not the only thing going on here. I think this is an area with enormous complexity (and I’m not intending that as weasel words to get away from difficulties). I agree too with your critique of EC by Mundy re transnational aspects. That said it did seem there were some interesting networks of women developing in surrogacy in the US which seemed to move it beyond exploitation into a better area. I would think it would need very very clear regulation but I find the CAHR report fairly clear eyed, even if for myself I’d come down probably on a more open rather than less open regime.

I’m equally conflicted on the anonymity argument – not least after reading some years back in the Guardian that the number of people who inadvertantly did not know that their biological parents were different to the people who parented them in general life due to infidelity etc was remarkably high.

Interestingly, re your point about commercial surrogacy not being allowed here (which I think is correct) what IIRC we are already seeing is some traffic across the Atlantic to the US.
Just thinking about the US, it seems to me also that that is one polity where regulation is unlikely to be implemented so that export – so to speak of the issue will continue one way or another. Which makes O’Brien’s point about banning it moot because as with certain IVF techniques etc a lot will go on under the radar – and this of course echoes, or shadows the situation vis abortion.

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dmfod - April 28, 2012

I’m not clear on the relevance of the point about many people not knowing who their biological parents are anyway. Unless you think that’s a good thing, I don’t see how regulating IVF/surrogacy in such a way that that can happen more often would be a good idea. The big difference between IVF/surrogacy and infidelity is also that with IVF that outcome is premeditated in advance of conception and so can be prevented if society decides it’s undesirable. Some people would go ahead anyway in private, but laws would at least create social norms against it.

On the question of a ban on commercial surrogacy here just exporting the problem, you could make it illegal for an Irish person to avail of surrogacy in countries with exploitative or poorly regulated systems, but allow it in other places – similar to intercountry adoption regulation. This would at least act as a deterrent, as if people wanted to go abroad they would be more likely to pick a country where they wouldn’t be breaking the law.

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WorldbyStorm - April 28, 2012

Simply pointing out that we live in societies where family building is a complex thing that legislation can only go so far with, not really making a larger point than that re knowledge/lack of knowledge of biological parents.

Hmmm… interesting idea about making surrogacy illegal to Irish people. What would the criteria be? Altruistic surrogacy only? A component of commercial? A blend? And how to determine? And where to start? Given the prevailing situation would you say the US should be an illegal destination? And what sort of penalties?

Or would this be a broader international agreement covering this area?

BTW, as a matter of interest do you feel similarly about egg and sperm donation. Should that be made illegal in certain jurisdictions for Irish people to avail of (after all, AFAIK if IVF is done outside the state they’ll ask if DS/DE is an element of the process)?

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dmfod - April 30, 2012

Assuming altruistic surrogacy is legalised here, Irish citizens could avail of altruistic surrogacy abroad – which would give them access to a wider pool of potential surrogates – but it would be hypocritical to legalise transnational commercial surrogacy arrangements and not allow them here. So commercial surrogacy in the US would be illegal, but maybe accessing altruistic surrogacy there could be allowed.

A similar position could be adopted towards transnational egg/sperm donation, so that if, for instance, only non-anonymous donations were allowed here, Irish citizens could only legally access non-anonymous systems abroad. Transnational egg donation would requires additional regulation to sperm, as it is much more invasive and potentially damaging to the donor’s health than masturbation.

This kind of transnational regulation would be very difficult to enforce, of course, and the penalties couldn’t be very punitive because you’d run the risk of damaging the interests of the child. All you could do really would be to make to make it more difficult/less attractive for people to choose unregulated/exploitative systems over others, so ultimately, you’d need some kind of international agreement.

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dmfod - April 30, 2012

whoops! that should have read ‘egg donation is invasive and potentially damaging to health, unlike masturbation’ :)

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WorldbyStorm - April 30, 2012

it’s an interesting question as to what sanctions could be introduced in the context of a couple/individual who availed of commercial surrogacy/egg donation in the US or a similar state (ie different to the India example) if it were illegal here. I’m at a loss to think of any, short of prison terms, and that seems, as you say, to be counterproductive. It seems unlikely that one could export the problem back to the US, and the likelihood is high that one Irish citizen would be a biological parent of the child (as well as a US citizen) that this would founder on the need to provide parenting to a child.

And in respect of an international agreement that seems utopian in the extreme. The US is highly unlikely to ever agree to such a regimen.

In terms of DE/DS, there’s really no feasible way I can see to police this at all. As I noted earlier, an hospital IIRC will ask if IVF has been involved in a pregnancy whether DS/DE was involved, but there’s no obligation on people to respond truthfully (BTW, the issue of safety in IVF and DE strikes me as a whole different discussion and well worth exploring at some point).

Which sort of leaves us much where we are today. The international aspect is likely to be ignored, or at most lip service paid, while the domestic will be fudged.

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3. ivorthorne - April 27, 2012

What is the difference between commercial surrogacy and prostitution? In both cases, the ‘pure’ form would seem far from inherently damaging, but the the potential for exploitation seems to be large enough, to give us pause. Is it possible to police surrogacy effectively without interfering with an individual’s right to self-determination.

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WorldbyStorm - April 27, 2012

Absolutely agree, there’s every reason to consider this area very very carefully. I think it is possible to do what you ask, not least because in some instances surrogacy can be an exercise of an individual’s right to self-determination.

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4. Tomboktu - April 27, 2012

..their approach to gay marriage is a particularly revealing example

Just wondering if there is a way of talking about that without calling it “gay marriage”? Isn’t it just “marriage”?

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WorldbyStorm - April 27, 2012

Point taken. Perhaps marriage between same sex partners? (and there’s the irony that Iona doesn’t believe in the concept which one would love to think would cause them all sorts of cognitive dissonance in how they frame their arguments).

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Tomboktu - April 27, 2012

I wasn’t making a point to be taken — but wondering how we could change the language. [Another point I like is the use of "lifting the ban on same-sex marriage".]

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WorldbyStorm - April 28, 2012

I didn’t think you were making it in a negative fashion – I think it’s something that’s genuinely difficult to articulate in a way that functions as it should ie it’s simply marriage. I guess/hope that soon enough there won’t be in any discussion the need to expand upon the term. It’ll just be a given. Entirely agree re the latter.

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5. Fir Bolg - April 27, 2012

I usually enjoy WBSs perceptive and nuanced postings but in this case you’ve missed major fact that exploitation of Third World women is a major component of surrogacy in practice. To a lesser extent this has also been the case with foreign adoptions. DMFOD has it right.

Lastly,I think it would be true to say that Ms O Brien on RTE & in IT
equals Gene Kerrigan in the Sindo

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WorldbyStorm - April 27, 2012

I genuinely appreciate the compliment and just say that I’m emphatically not ignoring the exploitative potential of surrogacy in non Western countries (or indeed in some instances in some western countries), again that’s why I noted originally that I was very dubious about surrogacy in potential exploitative contexts. But that’s the very point that I’m trying to get across about Breda O’Brien’s piece, that it argues from one angle and entirely ignores any other i.e. altruistic surrogacy, etc [which I should add can occur without any reference to non-western countries].

BTW, There has definitely been an element of same re adoptions and I think signing up to Hague was important.

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6. dmfod - April 28, 2012

@wendylyons There are ‘labour issues’ involved with the kidney trade as well because the operation takes time and the seller will probably be unable to work for some time afterwards and so is selling labour time as well as a ‘good’.

On the similarities between commercial surrogacy and the kidney trade, wombs are also ‘non-renewable’ if complications damage surrogates’ future fertility and like second kidneys they are also not ‘essential’ to life – on the other hand, you only have one womb. The difference, as I mentioned before, is that with surrogacy organ loss/damage is only a risk, which in theory is factored into the price. I’m really uncomfortable with legislating to allow people to sell risk of organ damage, especially transnationally where a ‘fair’ price is unlikely to be paid.

I know you could say steeplejacks and fishermen effectively do the same thing and you would concentrate on trying to make it as safe as possible, but surrogacy feels qualitatively different, as even if everything goes to plan, the service sold is bodily integrity and internal physical transformation with permanent aspects into the future.

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Wendy Lyon - April 29, 2012

I accept that labour is implicated in the selling of a kidney (as it can also be in other goods transactions) but that isn’t the primary element of it and certainly isn’t where the controversy lies. Also, you do need both kidneys if one of them stops working. Hence the different attitudes towards selling the other body parts I mentioned.

If you’re going to argue against allowing surrogacy on the basis of health risks to the surrogate then I am really going to need to see some statistics. It’s not good enough just to say that pregnancy can have these outcomes because the same argument can be (and indeed is) used to deny women access to contraception and abortion. In fact, women have at times been excluded entirely from particular labour sectors on the basis of threats to their future childbearing capacity. Even if they didn’t plan on having future children, which you seem to be assuming all surrogates do.

It would be particularly useful if you could demonstrate that the health risks of surrogacy are greater than the health risks of what the women would have to do for money if the surrogacy option wasn’t available to them.

surrogacy feels qualitatively different

That really is the nub of the issue, isn’t it? It’s not really about whether surrogacy is worse in any way that can be measured, it just rubs people the wrong way, for a variety of reasons. I think that’s perfectly understandable, but I don’t think it’s a sound basis for policy-making over and above all other considerations.

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7. dmfod - April 29, 2012

The reason transnational commercial surrogacy feels qualitatively different is not just instinctual, but because it combines so many different potential problems that arise in other contexts. It shares some things in common with organ selling, some with prostitution, some with dangerous labour in general and on top of all that there’s the whole emotional and psychological dimension, including the danger of attachment to the child, and cultural/social/gender issues that don’t arise in the context of dangerous male jobs. It’s that unique combination that makes it different to dangerous labour in general.

I don’t have any statistics on health outcomes for Indian surrogates and asfaik none are publicly available, which tells its own story. We do know that many clinics implant 3-5 embryos, which is riskier for the woman, and is no longer the norm in the US. The main reason it happens in India is that it works out cheaper for the commissioning couple, whose interests are placed above the surrogate’s. In addition, postnatal depression occurs in 5-25% of regular pregnancies and surrogates are highly unlikely to receive psychological aftercare once they’ve delivered the goods and gone back to their home village. As for physical complications, even if a surrogate doesn’t want more kids at the time, child mortality rates are so high in India that the possibility of a surrogate’s child dying after she has lost her uterus through surrogacy and her then wanting another child is not inconsiderable. Also, women can just change their minds about wanting to have more children, so surrogacy can destroy their future reproductive freedom of choice – which is this the context I’m raising this, rather than the Catholic argument that women shouldn’t be allowed abort/contracept/act as surrogates in case it damages their god-given purpose as incubators.

“It would be particularly useful if you could demonstrate that the health risks of surrogacy are greater than the health risks of what the women would have to do for money if the surrogacy option wasn’t available to them.” – that’s pretty much impossible, as you’d have to know every single woman’s individual situation – which I presume is the point you’re making about choice. However I don’t think you can just assume women are making a free choice – they may end up becoming cash cows for their husbands and be pressured into becoming surrogates, introducing a new form of gender-based exploitation which simply didn’t exist before and for which there is no direct comparative alternative. The lack of any laws governing surrogacy in India makes those kinds of exploitative situations more likely, compounding all the other problems already mentioned.

Maybe there are some situations in which transnational commercial surrogacy might be ok in theory, but at the moment it’s such a wild West that the danger of exploitation seems to me to outweigh the positives. Similarly, non-exploitative, safe, fairly remunerated and respectful prostitution is possible to imagine, but is not the reality of prostitution in the overwhelming majority of cases. I know you think regulation rather than prohibition is the correct response with prostitution too, but from an Irish perspective, the government has no control over what laws are introduced in India and can only legislate for what Irish citizens do, which was the original context of this discussion. So I suppose I’m asking if you think the Irish government should facilitate Irish couples in hiring surrogates in poor countries through new legislation that makes that process easier – even in the absence of any regulation there?

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Wendy Lyon - April 30, 2012

The reason transnational commercial surrogacy feels qualitatively different is not just instinctual, but because it combines so many different potential problems that arise in other contexts.

With respect, this still sounds very much like you’ve started from a position of instinctive dislike and worked backwards to construct a reason for it. Which is perfectly valid for personal opinions but problematic as a policy-making mechanism, not least because it’s the same process that has been used to justify all sorts of repressive anti-woman legislation. To the extent that you’re arguing from the point of view of risk (which I think is only part of it) I also question your treating the range of sources of hypothetical risk as more important than the degree of actual risk. There are more things that could possibly kill you in an ocean than in a swimming pool full of hungry piranhas, but I’d take my chances with the ocean.

I don’t have any statistics on health outcomes for Indian surrogates and asfaik none are publicly available, which tells its own story.

All it tells is that there is a lack of evidence on which to base any assertion about the risks of surrogacy. The only things that you do have figures for are things that could be addressed by proper regulation. While Ireland cannot dictate the Indian regulatory regime it can certainly legislate for the conditions under which it will recognise a surrogate birth, and this could include conditions relating to the pre- and post-natal care of the surrogate.

that’s pretty much impossible, as you’d have to know every single woman’s individual situation

I don’t think it’s impossible. We could start by asking the women themselves. We could also look at the opportunities generally available to the particular cohort of women that become surrogates. At the very least we should try to collect this information. I really don’t think it’s too much to ask that we try to get basic data on the risks of legalising or not legalising something, especially if we’re justifying policy on the basis of risk.

which I presume is the point you’re making about choice

I haven’t made any point about choice.

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dmfod - April 30, 2012

All I meant about choice was that you seemed to be implying surrogacy should be approached in terms of whether it was the least worst option available to the surrogate and left up to her to decide that – but maybe I picked you wrong.

On risks, they’re not all physical, so your analogy of a swimming pool of piranhas vs. the ocean with diverse physical risks isn’t really accurate. I also don’t see how the figures cited for the risk of post-natal depression can be regulated away.

I see your point about evidence-based policy-making, but I’m not sure how practical it would be for the Irish government to gather the necessary information if the Indian government can’t/won’t, especially to the level of detail needed to assess whether surrogacy was in fact the least worst option available to the women involved.

In a situation like this where risks are uncertain and possibly impossible to accurately assess, I don’t think it’s unreasonable to adopt a ‘first do no harm’ or precautionary principle approach, whereby something that seems to involve a lot of potential risks is not endorsed without strong evidence to the contrary – in other words the burden of proof is reversed.

After all, transnational commercial surrogacy has not emerged after careful consideration of the relative risks/benefits for Indian surrogates, but has been driven by the needs of Western couples and commercially-motivated middlemen.

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Wendy Lyon - May 1, 2012

All I meant about choice was that you seemed to be implying surrogacy should be approached in terms of whether it was the least worst option available to the surrogate and left up to her to decide that – but maybe I picked you wrong.

That’s not a million miles from what I would say, but I don’t think we’ve even got to the point of agreeing that there’s anything to decide! This discussion (so far) has all been about whether the other available options could be worse, not about who gets to make that call. I’m sure I could have come up with a better analogy than oceans and swimming pools but when the point is that danger shouldn’t be assessed simply by the range of potential risks, you’re not really addressing it by repeating again that one particular option has a greater range of potential risks.

I also don’t see how the figures cited for the risk of post-natal depression can be regulated away.

Post-natal depression isn’t strictly a biological phenomenon and one factor it’s strongly correlated with is lack of resources to access supports, including post-natal care. So it certainly is possible to regulate away that element of risk. Other elements might still be present but you can’t totally eliminate risk in any work environment. I really don’t think it would be a monumental task to gather enough evidence to at least make a basic assessment of the actual situation, in fact I’d suspect much of the research has already been done albeit perhaps not in a unified manner – e.g. there are probably some studies into the health risks of surrogacy, some on the personal circumstances of the women who have become surrogates including their alternative sources of income, and some of the health risks of those alternatives. A systematic review of this research might not be as ideal as, say, collecting all the information directly from the experiences of x-number of surrogates (although I don’t think that’s impossible either), but it would be a good starting point. I can’t really understand the resistance to be honest.

And I have difficulty accepting your precautionary principle when you’ve already more or less ruled out the possibility of that reversed burden of proof being met. It also strongly reminds me of the arguments that have been used by companies seeking to exclude women from jobs where they would face exposure to things like hazardous chemicals. There was a major court case about this in the US in the early 1990s and as I recall the company argued that it was better not to take the chance, even if it wasn’t certain, that a woman’s ability to bear healthy children would be affected by this work. I’d be very wary indeed of setting a standard like that on the basis that something “seems to involve a lot of potential risks” – there’s more than enough wriggle room there (seems? a lot? potential?) for it to be used against women as easily as for us.

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