Issues Surrounding Surrogacy: A Call for Repairs in the Legal Environment

Maja Petrovic
JD Candidate, 2019

The November 2016 Shirley Greenberg lecture, Reproductive Labour: Reflections on the Law and Policy of Surrogacy, addressed a major issue in property law, namely surrogacy and proprietary interests within the body. The lecture highlighted two key concerns in relation to surrogacy: bodily exploitation and commodification. The speakers of the panel, Professor Bronwyn Parry, Erin Lepine, and Pam MacEachern touched on a number of key points for consideration.

The Assisted Human Reproduction Act (AHRA)[1] is the main piece of legislation on this topic; however, its enforcement has been minimal. In particular, sections 6 and 12, which speak to the practice of surrogacy, are poorly enforced and are currently under revision. I suggest that this uncertain legal environment has contributed to the problems of bodily exploitation and commodification in surrogacy practices. A sound legislative scheme, with proper enforcement and regulation mechanisms, is crucial to addressing these concerns.

Exploitation of Women

In the lecture, Erin Lepine and Pam MacEachern explained how exploitation is inherent in commercial surrogacy, particularly through the use of surrogacy agreements. These agreements are extremely restrictive, with potential constrictions on a woman’s diet, exercise, and general lifestyle choices. Surrogate mothers are at risk of severe penalization if there is a breach of contract. Additionally, surrogate mothers often receive minimal compensation, while fertility clinics accumulate significant wealth.

However, Professor Parry argued that “selling access to one’s reproductive capacities” through surrogacy is not “inherently exploitive,” and should not be illegal. Parry’s arguments mirror those of Richard Arneson, who in his article “Commodification and Commercial Surrogacy,” argues that the case against commercial surrogacy is not strong enough to show that it is “socially harmful.”[2] Arneson concludes that a complete ban of commercial surrogacy is unwarranted.[3] Parry admitted, however, that the lack of legal enforcement, and the absence of regulations have given rise to undue exploitation.

Commodification of the Body

Parry also argued that surrogacy is not entirely distinct from other forms of “clinical labour” that are deemed acceptable in society.  She analogized surrogacy with modern-day purchasing of services, such as nursing, or day care, which essentially commodify “affective care.”

However when it comes to surrogacy, the specific concern is with the potential for commodifying the body. Lepine and MacEachern suggested that surrogacy is founded on the notion of framing the body as an object, and reproduction as a skill that can be paid for. Similarly, David Snow argues that surrogacy frames women as “objects of use” and treats babies as “objects to be purchased and sold.”[4] Genevieve Plaster points to arguments made by “Stop Surrogacy Now” (SSN) that surrogacy frames children as “objects of contract,” making commercial surrogacy “indistinguishable from the buying and selling of children.”[5] Commodification of the body is particularly problematic because it infringes on our existing social and moral values, which uphold the dignity and sanctity of the human body, as suggested by Mosk J in Moore v Regents of University of California.[6]

A broader issue echoes in this discussion: should our bodies be considered legal property? In Our Bodies, Whose Property? Anne Phillips suggests that associating the body with property essentially diminishes our bodies’ moral significance to our persona, and allows us to think of our bodies as marketable resources.[7]

Perhaps the real challenge is answering the following: how can the law allow for surrogacy without implicitly allowing for the commodification of women’s bodies, and framing the human body as “property?” It seems that whether surrogacy is altruistic or commercial, the ultimate result is commodification. However, to add some food for thought: if someone is engaging in a practice for all of the “right” reasons (i.e. altruistic surrogacy or organ donation), does that make commodification of the body in those circumstances less problematic? Is there room in the law to allow for practices that inherently frame our bodies as commodities in cases where it is socially, morally, and ethically acceptable?

Parliament and Health Canada ought to work together to establish an effective piece of legislation that addresses the discussed concerns, given the evident flaws within the existing legal environment. Perhaps the best results will come from considering the interests of those who appreciate the benefits of surrogacy, while limiting opportunities for the practice to cross society’s moral boundaries.

[1] Assisted Human Reproduction Act, SC 2004, c 2.

[2] Richard J Arneson, “Commodification and Commercial Surrogacy” (1992) 21(2) Philosophy & Public Affairs 132 at 164.

[3] Ibid.

[4] David Snow, “Criminalising Commercial Surrogacy in Canada and Australia: the political construction of ‘national consensus’” (2016) 51(1) Australian J Political Science 1 at 3.

[5] Genevieve Plaster, “Surrogacy: The Commodification of Motherhood and Human Life” (1 June 2015) Charlotte Lozier Institute, online: <lozierinstitute.org/surrogacy-the-commodification-of-motherhood-and-human-life/>.

[6] Moore v Regents of University of California, 51 Cal (3d) 120 at 167 (1990).

[7] Anne Phillips, Our Bodies, Whose Property? (Princeton: Princeton University Press, 2013).

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