Commodification of the womb
Commercial surrogacy
Commodification of the womb is a Marxist concept related to the sale of functions performed by the human uterus.
The market transaction reduces the womb to merely a service provider in the marketplace. In Marxist terms, the womb in its commodified state has both exchange value and use value. Market transactions involving the services of women's wombs (i.e. surrogacy) became increasingly common in the early twenty-first century. Such transactions are generally relied upon by those unable to conceive and those who are willing to pay someone else to bear pregnancy. Commodification of the womb raises several ethical and legal questions, which have expanded from questions regarding the rights of surrogates and biological parents, and the legitimacy of a child resulting from the transaction, to questions regarding transnational surrogacy within a global market.
History
Background
Through modernization of reproductive technology, the options for having a child has expanded to include artificial insemination, in vitro fertilization, and surrogacy as possible solutions when faced with infertility. A woman may essentially offer to rent her womb for the gestation of a child who will be given to another person following the birth of the child. Surrogacy has been a practice throughout history, yet has become more popular in the modern day.
In the Bible, Rachel, who was infertile, gives her handmaid Bilhah to her husband Jacob to bear him children. The two children, Dan and Naphtali whom Bilhah gave birth to were given names by Rachel who was considered their mother following birth. This was the earliest biblical example of surrogacy.[1] From the Middle Ages to modern times, other reproductive services have also been supplied for a fee. For example, in the Middle Ages, a wet nurse would feed and care for another woman's child in exchange for payment. These reproductive services are often provided by lower-class women to wealthier women, either for an individual fee or as part of her employment.
New reproductive technologies
In the late twentieth and early twenty-first centuries, developments artificial insemination made impregnation possible without sexual intercourse.[2] Thus the market for commodification of the womb was transformed. Through the advancements of modern technology, potential parent(s) have the ability to enter into a market transaction with a someone who agrees to gestate a child, either of their own egg or that of a surrogate, with the contractual obligation of turning this child over upon birth. Due to the high costs associated (often $100k+ per child) and typical lack of insurance coverage, having a child born of a commercial surrogate may be considered a luxury good.[3]
Early markets
Viewing the womb as a commodified good allows for the understanding of the market supply, demand, and transactions that take place with a part of the human body. The market for commercial surrogacy began to take shape in the late 1970s; one of the more prominent figures in this market was attorney Noel Keane of Michigan, United States.[4] Keane drew up the first commercial surrogacy contract in 1976.[5]
Keane started brokering deals, for a fee, between potential surrogates and parents until he found out that it was illegal for a genetic parent to sell their child to another person in the state of Michigan. Keane's business model was to have fathers contribute sperm and the surrogate mothers provided eggs. The surrogate mothers were genetically related to the child, while the non-birth mothers were not. Such surrogacy arrangements were illegal in some states on the basis that the non-birth mothers were paying the biological mothers for their genetically related children. The state of Michigan was one such state that enacted laws forbidding these surrogacy arrangements, thereby making Keane's business model illegal.[6] The main purpose of these laws was to prevent the sale of infants as if they were property. Some states viewed surrogate contracts as void, the payment for a child was illegal, and/or viewed artificial insemination as adultery, if the couple was not married.[6]
To avoid the legal issues Keane thought women would volunteer, without pay, to become surrogates out of an altruistic motivation. However, without the promise of financial compensation, Keane found a sharp decline in the number of women who volunteered.[4] In the early 1980s, Keane moved his commercial surrogacy business to Florida, where laws were more lenient. Florida also had no laws regarding the exchange of money for infants.[7] A commercial surrogacy broker could be viewed as organizing production and offering a product to the market. This raised the question of whether women and children are being viewed as commodities without sufficient regard for their autonomy. At the outset of commercial surrogacy, the laws in place in the United States were not equipped to handle the resulting legal and ethical questions that would arise. As with many modern markets, womb commodification has moved from local markets to outsourcing in foreign countries.
Conceptualization
Commodification refers to the process by which goods and services are transformed into commodities to be bought and sold in the market. In Capital, from the Fetishism of the Commodity and its Secrets, Karl Marx describes a commodity as a thing. Marx calls commodities trivial, strange, and use values to satisfy human needs.[8] Marx conceptualizes the commodity as something man transforms from raw materials into a final good. Goods, in his definition, are inherently not human, making commodification of the womb difficult to fit into a Marxist framework. The womb itself is not a good, but its functions can be highly profitable.
Ethics
Womb commodification raises ethical questions regarding exploitation of poor/low income women, the rights of the child, and the natural biological function of the human body. [9] The commodification of the womb also tries to balance a woman's right to enter in to a contract and to make decisions regarding her own body. Surrogates can be viewed as economic agents engaged in free market trade. The commodification argument asks whether women are being given control over their body, or whether they are being exploited for their individual body parts with monetary incentives.
An ethical argument against commercial surrogacy is that it allows the rich to take advantage of the willingness of poor women to perform any job as long as they are able to earn a wage. A woman may choose to commodify her womb for money because she is faced with no other profitable options for employment; however, the payment arrangement and monetary value varies from case to case.
Since the surrogate functions as a gestational carrier, only carrying the pregnancy to delivery; the surrogate has no legal claim or responsibility to the child after pregnancy. This causes an ethical issues regarding the rights of the child. There is no claim to the gestational carrier after birth, which often means the child cannot obtain any information about the carrier or possible siblings.[10]
Women in the modern world often carry children with no biological relationship to them. This transforms the nature of a woman's body's function into a commercial transaction.
Legal issues
Reproductive technology is a relatively recent phenomenon with little universal regulation.[11] Surrogates, clinics, and commissioning couples often choose the market that is most favorable, beneficial, or profitable to them. Many individual states in the United States view the gestational mother as the legal mother, which can prove problematic when determining rights of the surrogate versus the rights of the commissioning couple.[12]
Opposition and challenges to surrogacy agreements most often relate to the nature of the surrogacy contract.[13] One of the legally debated questions is whether the contract is granting a woman the right to sell the service of her labor through womb rental or whether the surrogate and the commissioning parents are entering into an agreement to sell/purchase a child. One of the most controversial legal issues is determining the rights of surrogate as the birth mother versus contractual obligations of the surrogate as a party to a contract. A mother is commonly defined as a woman who has given birth or legally adopted a child.[14] The law often does not keep pace with technology. With the advancements of surrogacy and the invention of commercial surrogacy, what it means to be a mother will inevitability need to be redefined.
A question at the forefront of legal debates is whether the birth mother may be required to relinquish her rights to the child, or whether the biological parents’ rights supersede the rights of the birth mother.[13] In order to avoid the sale of a human, which is illegal, the focus of a surrogacy contract needs to focus on the legal use of the surrogate's womb to be enforceable. There is little case law on which to rely and this legal battle is made more complex when the element of transnational surrogacy is added. Birth often confers nationally and citizenship. With transnational surrogacy being a common form of commercial surrogacy, there is growing demand for international regulation of this burgeoning market.
