Kristine Casey is the latest grandmother to gestate and give birth to her own grandchild, for love, not money. Elton John and Nicole Kidman arranged for gestational carriers of the nongrandmother kind. Once again, the question is raised: Should surrogates be paid for their work in gestating the children of others?
In the United States, some states have banned surrogacy; others permit it, allowing nominal payment to cover only medical and incidental expenses. Why the resistance to actual compensation?
Payment for biologically-based needs is often controversial. A case currently before the Ninth Circuit, for example, challenges the constitutionality of the federal ban against the purchase of bone marrow. While this case may ultimately have something relevant to say about surrogacy, it does not raise the gender issues that are so prominent in surrogacy.
It does not seem a coincidence that the discomfort with – or outright refusal – to pay gestational carriers is tied to the reality that surrogacy is, by definition, women’s work. It is not just that women have ended up in disproportionate numbers in a pink collar ghetto by some combination of choice and force. Rather, women and women only have the means to perform the functions required by surrogacy. If as a society, we have routinely devalued traditional women’s work such as typing, teaching, and child care, is it surprising that we devalue the most “womanly” work of all – that of bearing a child?
Some argue that the problem is not that the work of surrogacy is devalued, but that surrogacy is not work, and that to view it as such is demeaning. Gestating a child is, or should be, a function of love and relationship. Perhaps that is true of women who are bearing babies for themselves and their families, in the same way that when one cooks for her husband or cleans the house it is out of love and not directly financially compensable. But those who perform domestic duties for others are paid for their work.
What of altruism? Some gestational carriers themselves believe that money taints the “gift” that they bring and give to the childless. Payment, however, doesn’t necessarily destroy altruism. Would-be surrogates could choose to offer their services voluntarily, without pay.
We tend to think of altruism as a system without costs, infinitely preferable to commercialization. It is not. When the gestational carrier is a stranger volunteering her services, her function and the relationship between the parties may be more ambiguous than it would be under a carefully defined services-for-hire contract.
That ambiguity may play a role in those cases in which gestational carriers refuse to relinquish a child after the birth, much to the detriment of all parties, including the child. Role conflicts may be further exacerbated when the surrogate is a close family member. And the voluntary – uncompensated – nature of the carrier’s function may make it harder for prospective parents to make even reasonable demands about the surrogate’s conduct, such as refraining from alcohol use or taking prenatal vitamins. In such cases, commercialization may assist in the necessary emotional remove of the surrogate from the fetus.
Another argument against compensation is that it exploits women, particularly poor women. Women who have few or no marketable skills and maybe fewer choices will be seduced into giving their bodies over to be used by others.
Not all surrogates can be described as economically downtrodden. It is foolish, however, to deny the class (and at times, race) issue, and admittedly this anti-exploitation argument gains the most traction in the context of the so-called “baby farms” in India and elsewhere, where young women are housed – and paid – while gestating infants for first-world couples. But the exploitation argument is paternalistic, often ignoring the voices of the gestational carriers themselves, many of whom claim that the opportunity to obtain such work is a valuable and valued one.
These women have used their compensation to do things like purchase a home, or send their children to school, that would otherwise have been impossible. In addition, the let’s-not-allow-women-to-be-exploited-in-this-way argument never seems actually to improve women’s lives. Unless the exploitation argument is followed by real efforts to give women more education or other opportunities for remunerative work, the argument leaves the arguers feeling morally right with themselves, but it leaves poor women in their same deplorable plight.
In an ideal world, perhaps the market would not be the best place for the work of forming families. In the real world, some people who want them cannot have babies, and some women can supply the gestational function necessary. It does and will continue to happen, whether for free or with payment. If that is the case, paying women for this service is the right – and maybe even better – thing to do.
Susan B. Apel is a professor at Vermont Law School and an adjunct professor at Dartmouth Medical School.