"It’s really a sort of libertarian versus sort-of paternalistic debate on inherent human rights; there are some things people shouldn’t be allowed to inherently do. I’m not sure if there’s a right answer or wrong answer. It’s a philosophical question on how you look at humanity and the world. Should the poor be allowed to sell one kidney? Or sell a heart? Should prostitution be allowed? Should poor women be allowed to be paid surrogates? It isn’t necessarily an issue that depends on whether they’re poor or not, but it seems to gain extra force when they’re poor, and particularly strong extra force when they’re poor, they’re foreign, of a different color. It reinforces a variety of traditional hierarchies of dominance, and nondominance. " -Hank Greely, Chair of Stanford Center for Biomedical Ethics
Some argue that being a surrogate mother is a choice that enhances a woman’s rights, while othersargue it enhances the subjectivity of women. Liberal individualists typically claim that the “right to enter surrogacy arrangements is a natural extension of the right to personal autonomy.”1 The act of prohibiting or invalidating surrogacy contracts would imply that women are incapable of full rational agency and would be violating their right to self-determination.
Opponents of surrogacy argue that the practice is equivalent to prostitution, and by virtue of that similarity, should be disallowed on moral grounds. Contract pregnancy transforms what is “specifically women’s labor…into a commodity,” an exchange of monetary compensation for the use of women’s bodies.2 Raghav Sharma, a student at the National Law School of Jodhpur, believes that surrogacy contracts are “dehumanizing and alienating since they deny the legitimacy of the surrogate’s perspective on her pregnancy. 3 The surrogate mother tries to avoid developing a special bond with the child in her and views the pregnancy as merely a way to earn the much-needed money. Surrogacy demeans the unique mother-child bond as women can now solely be used as “breeder machines.” The subjectivity of women is enhanced by creating more opportunities for them to participate in reproductive relationships rather than opportunities equal to those available to men.
In the case of surrogacy in India, it is hard to tell without personally interviewing these women whether they are exercising their own personal rights, or whether they are forced to become surrogate mothers due to their mother-in-law’s or husband’s desire to fulfill material and financial needs. These women could be very content with their decision of becoming surrogate mothers. In such a case, one could argue that the government has no right to interfere with this practice, if women do not mind taking on what could possibly viewed as a degrading arrangement to some. Also, women may be offering their own bodies willingly to surrogacy, yet still the money that offers these women many benefits in the future, could be seen as a type of coercion. There may be no actual frank coercion, but what the large amounts of money offered may be so valuable to these women that they may not have a choice but to take it.
Surrogacy allows women to exercise their right of choice and their right to procreate. They are given the opportunity to make a large enough sum of money to buy better homes or provide an education for their children. For women that hire surrogate mothers, surrogacy steers away the view that a women’s role in society is to bear children. Surrogacy allows symmetry between both partners who both donate their gametes since the male generally acts as a passive partner to the resulting pregnancy and delivery. Women in politics or in the work force can now hire a surrogate mother, rather than taking time off from work. It allows infertile women an opportunity to have a child. Prohibiting surrogacy would “violate women’s self-determination and would infringe on the commissioning parties’ right to procreate.”4
Although gender equality seems to improve for women of higher status that are able to afford surrogate mothers, the fear is that surrogacy will exploit the poor. It is unclear that poorer women will voluntarily lease their bodies for reproductive ends. One primary concern is that “contract pregnancy commodifies both women’s labor and children in ways that undermine the autonomy and dignity of women and the love parents owe their children.”5
1 Van Zyl L, van Niekerk A. “Interpretations, perspectives, and intentions in surrogate motherhood.” J Med Ethics 2000 Oct; 26(5): 404-9. <http://jme.bmj.com.laneproxy.stanford.edu/cgi/content/full/26/5/404>
2 McLachlan, Hugh and Swales, J.K. “Babies, Child Bearers and Commodification: Anderson, Brazier et al., and the Political Economy of Commercial Surrogate Motherhood.” Health Care Analysis 8: 1-18, 2000.
3 Sharma, Raghav. "An International, Moral & Legal Perspective: The Call for Legalization of Surrogacy in India,” 2007. Available at SSRN: http://ssrn.com/abstract=997923
4 Tong, Rosemarie, Anne Donchin, Susan Dodds. Linking Visions: Feminist Bioethics, Human Rights. Rowman & Littlefield: 2004