Surrogacy is a complex and controversial topic that has gained popularity and visibility due to phenomenal scientific advances, greater acceptance (and lack thereof) of LGBTQI+ rights across nations, and in its presentation as a possible medical solution to the global fertility decline that has been experienced in the last five decades. Thousands of families have been created through surrogacy throughout the years, but the journey towards surrogacy is incredibly challenging, especially due to the financialisation of the process and the legal and moral dilemmas that it creates in the question of the commodification of reproductive organs. Using a definition by historical sociologist Greta Krippner, she defines financialisation as “a pattern of accumulation in which profit making occurs increasingly through financial channels”. Her definition is significant for the discussion global justice within the context of transnational commercial surrogacy market because it helps to establish that by the surrogacy industry turning the labour services of especially destitute women from developing countries into an exchangeable financial instrument that can be “traded, speculated, and managed” it establishes itself as a financial market and so must be treated as one to ensure any sense of justice.
Photo taken after Nepal Earthquake which revealed the extent of the Nepal Surrogacy
Transnational
surrogacy refers to the practice of individuals or couples seeking surrogacy
arrangements outside their own country. It involves intended parents traveling
across borders to find suitable surrogates and undergo the surrogacy process.
The transnational aspect of surrogacy arises from legal variations between
countries, the availability of services in different locations, the emergence
of reproductive tourism, cross-cultural and cross-ethnic dynamics, and the
ethical and legal considerations surrounding international surrogacy. This
complex phenomenon involves navigating different legal frameworks, seeking
affordable options, and dealing with cultural and language differences while
raising important questions about rights, protection, and potential
exploitation in the context of reproductive services.
Many view the
process as a commodification of humanity, particularly western feminists who
believe that a woman's womb should not be commodified as labour or a service.
These dilemmas are exacerbated by the fact that the ever-growing market of
commercial surrogacy is unregulated globally. As such, the legal protection
that is promised to all stakeholders (primarily surrogate mother and intended
parents) of the process differs across continents and nations. In theory,
global justice may be possible within the framework of transnational commercial
surrogacy if greater international cooperation, policies, and institutions that
promote the equitable distribution of resources, opportunities, and benefits
among individuals and nations existed. However, the current unregulated and
commercialised nature of the surrogacy market presents significant obstacles to
achieving justice for all stakeholders. In the current constitution, there are
inherent power imbalances and exploitation that arise from the commodification
of reproductive labour and fertility.
For example, in
the definitions of consent within the legal framework of surrogacy, and in the
notion that such a thing as 'altruistic' surrogacy can exist within such a
commercialised market where some of the stakeholders are financially destitute,
the globalisation of surrogacy, like many other transnational/global phenomena,
will always be disproportionately more disadvantageous towards lower-income
societies than higher-income ones. For instance, Mr Lake and Mr Manuel Santos
won a case against their surrogate mother in Thailand in 2016 after she refused
to give them the child due to their sexuality and cultural differences. This Thailand case highlights the issue of
consent definitions in the legal contract between the surrogate mother and
intended parents. Due to cultural differences held by the surrogate mother about
homosexuality, the surrogate mother wanted to retract her consent, but she was
ruled against. So, regardless of her flawed judgement on homosexuality, can it
be argued that she truly had consent in having the baby if the information
about the intended couples sexuality was never provided to her? Additionally, within
historical sociologist Greta Krippner’s definition of financialisation, it is
unjust to suggest that such a thing as 'altruistic' surrogacy exists since the
surrogacy market is unregulated globally, allowing agencies to profit from the
labour of women who, while helping another person start a family, are primarily
motivated by the possibility of financial compensation.
To achieve global
justice within the context of transnational commercial surrogacy, there must be
a worldwide acceptance that all surrogacy is commercial, and as such, all
persons (especially those from developing countries) should be allowed to
commodify their wombs in an equal manner. This would lead to market regulation,
allowing for fair wages and compensation for all potential surrogate mothers.
The current financial disparity between surrogacy services in higher-income
developed countries such as the United States, where surrogacy costs begin at
$140,000 and surrogate mothers are paid $40,000, and lower-income countries
such as Ukraine, where surrogacy services cost $70,000 and surrogate mothers
are paid only $15,000, is clear evidence of the exploitation. This gets worse
as we move down the global south. Largely, the commercialisation and
financialisation of surrogacy has significant implications for achieving global
justice in the transnational surrogacy market. When profit is prioritised over
the well-being and autonomy of surrogate mothers, it can lead to their
exploitation. The lack of regulation in the surrogacy market creates
disparities that hinder global justice, as countries often have conflicting
surrogacy policies. The mobility of intended parents to lower-income countries
for surrogacy services perpetuates economic inequalities, making global justice
even harder to achieve. Overall, the unregulated market of surrogacy presents
significant challenges to achieving global justice, and it is crucial to
address the ethical, legal, and societal aspects of surrogacy to protect the
rights and well-being of all involved.
Yinka Aresa
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