Theoretical Approaches to Human Dignity, Human Rights and Surrogacy

Chapter 3
Theoretical Approaches to Human Dignity, Human Rights and Surrogacy

Legal regulation of transactions in the human body is in one sense a new phenomenon. Traditionally, in seeking to delineate between what is human and what is not, the common law has sought to exclude the human body from its conceptualisation of transactions as involving commodities.¹ This approach theoretically avoids the potential for a human to become the very antithesis of personhood: namely property. From this perspective, bodily transactions that are now routine, including organ transplants, assisted reproduction and surrogacy, present a challenge for the law.

On the other hand, property itself is a construct of its time and the society in which it exists.² The exclusion of humans and their bodies from regulatory frameworks has depended upon who is within the law and who is homo sacer³ (outside the law), and how social custom perceives the body from time to time.⁴ For example, at one end of a spectrum of bodily transactions, slavery was actively practised in England until the late eighteenth century. Slavery is now completely prohibited within an international human rights framework.⁵ Far more recently, the bodies of children and women have been under the control of the head of the household, the pater familias, and the paternalistic state.⁶

This perhaps reflects a duality in the law – protecting what is described as the inherent dignity of humanity,⁷ while simultaneously accepting a ‘natural order’ of bodily submission of women and children to their father or husband⁸ and also to regulation by the state. It is part of the Enlightenment project⁹ that freedom and power are properties of the human individual: that ‘[e]very man is naturally the proprietor of his own person, that natural right is derived from property in one’s own person’.¹⁰ While this philosophy is central to the modern democratic state, the use of the word ‘man’ to describe the human individual is not without significance.

In spite of this apparent freedom, the law is uncertain about supporting an unfettered reproductive liberty. Abortion for example remains a contested legal and policy space, and assisted reproduction has been restricted on a number of bases including marital status¹¹ (and therefore also on sexuality). This uneasy relationship is spelled out in the law’s approach to surrogacy arrangements – arguably the most complex form of assisted reproduction fusing as it does gamete donation¹² which may or may not involve assisted reproductive technologies (ART) such as IVF, and parentage issues, including adoption.¹³ In theoretical terms, surrogacy operates within a complex matrix of:

devotion to scientific and medical progress for the relief of man’s [sic] estate; private property, commerce, and free enterprise; and the primacy of personal autonomy and choice, including freedom of contract. [Yet they collide] with certain other notions of decency and propriety, pre-modern and quasi-religious, such as the sanctity of man’s [sic] bodily integrity …¹⁴

This chapter explores the theoretical arguments relating to justification of the legality and regulation of surrogacy. In particular, it looks at whether surrogacy should be regulated and why, using examples, primarily from Australia, to illustrate the issues. It considers the tensions within the theoretical justifications of surrogacy, starting with the liberal rights discourse that encompasses freedom of contract and personal choice. Such freedoms though occur not within a disembodied individualist framework but also within a particular social context and to this extent can be challenged based on women’s long-standing structural disadvantage and deep-seated beliefs about women and motherhood. This is a strong theme in feminist critiques of surrogacy, which identify surrogacy as a touchstone feminist issue lying at the juncture of social constructions of women and individual autonomy.¹⁵ All of these arguments, however, raise questions of Kantian morality, and the justification of humans as means rather than as ends in themselves. Accordingly, this chapter suggests a way to navigate these tensions through the application of a human rights based approach founded on the principle of dignity.

II. Reproduction and Freedom

For intending parents, starting a family is a freedom expected as a matter of course. Indeed for a coital conception, there is no question that for consenting adults the law will not interfere with this freedom. Even in terms of the regulation of surrogacy, Australian governments, for example, have recently assumed a principle of limited governmental intrusion into private lives.¹⁶ To the extent that surrogacy arrangements raise a variety of concerns, however, this freedom is potentially challenged. As an example of profound government intervention, until 2010 in Queensland, surrogacy of any sort was criminalised.¹⁷ In most jurisdictions internationally, surrogacy is regulated in one way or another. Supporters of surrogacy therefore face the task of elucidating what are the freedoms and rights of intending parents, and how they can be given legitimate expression in light of competing elements of parenthood – genetic, gestational and social¹⁸ – and the interests of the child.

An individualist rights based approach to reproduction justifies surrogacy along with other reproductive transactions. It founds an argument in favour of recognition of reproductive rights based on the autonomy and self-determination of women and men to beget and rear children¹⁹ – whether genetically related to them, or not.²⁰ Robertson, for example, finds that married couples have a right to procreate within a sexual relationship, and extrapolates from this to posit that other types of reproductive transaction designed to achieve the same end (that is, reproduction) are equally protected. While he is less certain about such rights for unmarried people, he gives qualified support here also.²¹

As might be expected, in jurisdictions such as US and Canada where there is constitutional recognition of personal rights and liberties, the case for reproductive rights and liberty is a lot stronger than in those jurisdictions such as the UK and Australia where there are no such protections.²² Indeed it is difficult to say whether a ‘procreative right’ would, or could, be protected by the courts in Australia. The concept of rights or freedom to choose to have a child or not (including through surrogacy) did, however, shape the recommendation of the Queensland Parliamentary Committee on Surrogacy to decriminalise altruistic surrogacy²³ in Queensland.²⁴ In the Queensland case, the principle of liberty found its expression in the ‘liberty of consenting adults to conceive a child and to parent’.²⁵ While the Queensland and other Australian legislation does not itself provide for a positive right of reproductive freedom, the regulatory framework surrounding altruistic surrogacy implicitly recognises this freedom.

Even within an approach that supports such freedom, state intervention might be justified through the application of the harm principle:²⁶ intervention in an otherwise private freedom, say through regulation, is justified to protect others – particularly the child and the birth mother – from ensuing harm. This approach can be seen in the 2009 Queensland amendments, where significant legislative change sought to ‘[balance] the prevention of harm and the protection of personal liberty in the creation of families through altruistic surrogacy’.²⁷

Freedom to procreate is as much a tenet of liberalism as the concomitant freedom of contract. A foundational principle of classical contract theory and a pillar of the common law, freedom of contract supports the rights of both intended parents and the birth mother to enter into and enforce a surrogacy agreement. Robertson, for example, is of the view that contracts for surrogacy should not only be lawful, but should be upheld by the courts in favour of the intending parents whose liberty is otherwise at stake.²⁸

In moving from reproductive freedom to freedom of contract, a range of additional rights potentially come into play and it is arguably this aspect of the justification for surrogacy that is most problematic. While contract is designed to facilitate the competition of the market, it is not generally equipped to balance power relations in an intimate dealing such as surrogacy. Additionally, such an arrangement brings into being a third party – the child – by definition not a party to negotiations. The question therefore becomes how the law navigates contractual rights and the fundamental principle of the dignity of the parties and their child.

The basis of Robertson’s justification of surrogacy contracts was not applied in the judgement of the Supreme Court of New Jersey in the Baby M²⁹ case, where the surrogacy contract was struck down for breaching statutory prohibitions on adoption transactions involving money – in other words, the sale of children. In one sense however, the procreative liberty of the father (and by extension the intending parents) was protected, as guardianship of the child was granted to the genetic father in preference to the birth mother, on the grounds of the ‘best interests of the child’.

The court in that case did not have to consider issues associated with the contract as between the parties, framing the issue instead as one concerning the illegality of the subject matter of the contract. Robertson’s framework validates both the subject matter of the contract and the relationship of the parties as representing free expression of procreative liberty. He mentions the contracting parties’ relationship only in passing. If, however, the transaction is examined instead based upon the parties’ own freedom to contract, there are other issues that arise that centre around the meaning of the exercise of free choice. It is these issues – including the ‘coercion of contract’ involving taking advantage of a woman’s need for money or an unwanted pregnancy³⁰ – that inform broader notions of reproductive justice.

In a more nuanced approach, London outlines some human rights dimensions of reproductive rights, identifying four inter-related principles:

1. choice (that is, women must have a choice about whether and when to bear a child);

4. personal autonomy (that is, the freedom to make decisions about one’s body is an essential component of autonomy).³¹

She differentiates reproductive rights from reproductive justice, arguing that such rights are necessary but not sufficient to achieve reproductive justice. In shifting from a legal to a political approach, reproductive justice has the capacity to consider the effect of power relations and differential resources, as well as ‘barriers to enjoying those rights, such as racism, sexism, economic injustice, and immigration policies’.³²

This explicit human rights based approach helps identify the shortcomings of Robertson’s articulation of liberty. Robertson’s argument canvasses the impacts of surrogacy arrangements on foetuses, on sperm and egg donors and on birth mothers, and he finds that none of the inconveniences or possible outcomes for these collaborators, or the resulting child, outweigh the procreative liberty of the intending parents. This of course fails to take into consideration anything but the paramountcy of individual rights – notably, those of the intending parents – and omits the social and emotional context of reproduction.

A critique of the parties’ ‘freedom’ of contract arguably has two elements representing the dual nature of reproduction as individual and social.³³ First are the personal circumstances of the birth mother in relation to the intending parents. Poverty or the need for greater income may put a potential birth mother at a significant disadvantage vis-à-vis the intending parents. While payment for a surrogacy transaction raises the spectre of selling babies with all its attendant moral concerns, it also raises other issues including just how free the birth mother was to enter into the transaction. It is for this reason that in most Australian jurisdictions, only altruistic surrogacy is permitted.³⁴ The focus on altruism seeks to avoid the potential of a power imbalance in favour of the intending parents, on the assumption that a woman will genuinely give free consent to be a birth mother, as a true expression of her reproductive liberty, when not pursuing a financial motive.

Second, as highlighted in the approach of reproductive justice, are the broader social and economic conditions surrounding a woman’s decision to become a surrogate. This is intrinsically a gender issue as it is women alone who are biologically capable of gestation. That women, to a greater extent than men, tend to suffer economic disadvantage highlights the economic vulnerability of potential gestational mothers.³⁵ It is of note also that becoming a gestational mother is becoming increasingly attractive to women from developing countries such as India and Thailand.³⁶ In the US context, it has been noted that African American women have historically been preferred as gestational mothers.³⁷ These examples indicate that racial and social background of gestational mothers is also a relevant context, one that is particularly pronounced in the cross-cultural context of international surrogacy.³⁸ Through the lens of contract law, social conditions such as these that embody a significant power imbalance become irrelevant once a contract becomes binding, opening the potential for exploitation by the powerful parties with the law on their side. Contract law assumes a free ‘market’, whereas, in fact, systemic disadvantage skews the ‘market’ in favour of the commissioning parents. Such a view puts surrogacy at the heart of the ongoing issue of women’s equality in employment opportunity and wages: to the extent that (commercial) surrogacy may be undertaken for financial reasons,³⁹ if women were to have equal opportunity in work and conditions, there would be no need to resort to surrogacy as a means of financial support.

This second issue of the structural inequality of women in general has implications for reproductive liberty and power relations within surrogacy arrangements in particular – and therefore for the so-called ‘freedoms’ of the liberal justification of surrogacy.

Structural inequality of women is a long-standing feature of society.⁴⁰ In the Western liberal tradition, in spite of the Enlightenment project and its focus on individual rights and freedoms, women remain constructed in ways that disadvantage them politically,⁴¹ economically,⁴² in the workplace⁴³ and within the family.⁴⁴

By and large women, including at law, remain constrained by their identification with sexuality and procreation.⁴⁵ Such attitudes reflect an essentialist notion of what it means to be a woman, including so-called ‘biological truths’ about women as nurturers and natural child-rearers.⁴⁶ These attitudes perpetuate gender stereotypes, including heteronormative hierarchies that harm all people.

While economic disadvantage is a measurable outcome of systemic discrimination, what is less tangible is the deep cultural expectations of womanhood – in particular of motherhood as the ultimate expression of womanhood. By men and women internalising the elevated status of motherhood, women may be oppressed into believing that personal success, fulfilment and happiness will only happen through motherhood. Such a universal stereotype results in discrimination against women who do not have children and reduces women who do, to the essentialist role of child-rearing.⁴⁷ In the cross-cultural context, Western cultural expectations of womanhood intersect with the construction of race and the implications of poverty.⁴⁸ Thus, some critics of the growing ‘globalised fertility market’ find it implicitly exploitative.⁴⁹

If the cultural connotation of motherhood is indeed part of women’s oppression, the question might be asked whether surrogacy can be justified – for intended mothers, genetic mothers or birth mothers. Raymond, for example, suggests that allowing surrogacy at all simply upholds essentialist notions of what it is to be a woman and that even an altruistic surrogacy arrangement between family members plays on social expectations of sisterly love to give freely what might be considered the greatest gift of all.⁵⁰ On this basis, she argues, it should be opposed.

Radin, on the other hand, points out the inherent tension within such a feminist critique as it denies the possibility of motherhood (or surrogacy) as an expression of a woman’s autonomy and her individualism.⁵¹