Gordon Hull / UNC Charlotte
As you will have noticed from Radin’s paper, commercial surrogacy poses significant ethical challenges. The following film, set 10 years into the future, offers a chance to reflect further on these issues:
Silver Sling (dir. Tze Chun)
- What does “accelerated surrogacy” do? What is the selling point?
- Is Lydia right or wrong to undergo the third surrogacy (assuming she does)? Why? Give a utilitarian answer and a deontological one.
- Was she right or wrong to undergo the first two? Why? Give a utilitarian answer and a deontological one.
- Is the nurse right or wrong to try to talk Lydia out of the procedure? Consider this question for her as a person, and as an employee. If the answer is different, which should she do and why?
- Should the service that the company provides be permitted? Give a utilitarian and a deontological answer, and also one using the thick concepts we discussed in the first half of the semester.
- Assess Lydia’s situation using Radin’s terminology: identify a domino effect and double bind, and weight them.
- Again, following Radin’s terminology, should restrictions be placed on the commodification practices of accelerated surrogacy?
3. More discussion
Although there are good reasons to suggest that commercial surrogacy can be exploitative, it does not necessarily follow that commercial surrogacy should be prohibited for this reason.
Firstly, commercial surrogacy is not fundamentally different from some other types of employment. One could imagine a scenario in which a desperately poor woman is coerced into prostitution. Perhaps what does makes surrogacy different is that it is potentially harmful. There are, of course, the physical harms associated with pregnancy that a woman who is pregnant with her own genetic child might be willing to risk. She might think these risks are worth taking in exchange for the benefits she will obtain through motherhood and the raising of a child she loves. The surrogate mother who gives up the child and all associated parental rights once it is born cannot claim these benefits. Moreover, there are well-documented psychological harms associated with carrying a foetus to term and then having to give up that child once it is born. It has been suggested that surrogate mothers often experience grief upon giving up their children. However, similar considerations of psychological harm may apply to prostitution given the link between a person’s sense of identity and sexuality, or to any other profession that a desperately poor person might be coerced into accepting because of their financial situation. It would seem inconsistent to ban commercial surrogacy for the reason that it is exploitative, yet at the same time permit other practices that may be equally so. Prohibition for this reason would seem excessively restrictive as it would unsuccessfully single out commercial surrogacy; rather, it would count against many other practices.
Secondly, if we assume that the desperately poor woman has no other way of gaining access to the money she needs, it would seem unreasonable to deny her of the opportunities that commercial surrogacy may provide her with simply to prevent her from being exploited. This is not to say that exploitation should be morally justified. But as Posner suggests:
To someone who is desperately in need of $10,000, a court’s refusal to allow her to obtain it will seem a hypocritical token of concern for her plight, especially since the court has no power to alleviate that plight in some other way.
Or, as Savulescu puts more bluntly:
It is double injustice to say to a poor person: ‘You can’t have what most other people have and we are not going to let you do what you want to have those things.’
Perhaps, rather than the outright prohibition of commercial surrogacy, a better solution would be to provide these women with other non-exploitative methods of making money. If the goal is to eliminate exploitation, prohibiting one form of exploitation would simply replace it with another. If desperately poor women have no better way of making money than by entering into commercial surrogacy agreements, and if this means of obtaining money is suddenly made no longer available to them, they must resort to less desirable means of improving their financial situation. Instead, sensible regulation, rather than outright prohibition, and focussing upon altering the unequal distribution of power and wealth that generates these exploitative situations in the first place would be the appropriate response.
- Explain Nguyen’s first argument in your own terms.
- Explain the second in your own terms
- In Radin’s terms, what condition does Nguyen weight most heavily in evaluating the prohibition?
- What sorts of “non-exploitative methods of making money” might be made available?
- What regulation does he propose?
- What other regulations would help to ameliorate the injustice in the situation?