The Morality of Commercial Surrogacy: an interview with political philosopher Ben Wempe

Modern advances in technology have enabled the bearing of children through third parties for monetary gain, which is known as commercial surrogacy. The topic is widely controversial and its legality varies greatly from country to country. Market moralists encourage restrictions based on concerns for the personal nature of the market, gender inequality, and the commodification of children.

To understand this position better, Dr Ben Wempe, a political philosopher and professor at the Rotterdam School of Management was interviewed. He has published articles outlining and analyzing the moral limits of markets. The interview aimed at examining the morality of commercial surrogacy, and Dr. Wempe’s reasons for supporting a ban on the practice.

Interviewer (JL): Good afternoon. I am here with Dr Wempe. Dr Wempe, can you please tell me a little bit about your academic career?

Interviewee (BW): Yes I can. So where do you want me to start? From the very beginning of my university training?

JL: University training.

BW: So I studied in Leiden at the university. After finishing my study in law and political science I moved to the European University Institute in Florence. That was in 1976, so a long time ago. And then, I spent the next 10 years working on my PhD, which I defended once again in Leiden.

JL: So you have studied a lot of political philosophy…?

BW: I focused on political philosophy, not necessarily philosophy in general, because this is part of the political science curriculum. So I’ve never described myself as a philosopher, but I do have expertise in political theory.

JL: Is there a difference as to how commercial surrogacy itself is defined?

BW: I’m not sure. I think that the general idea is clear. So you have a very private, very personal service or activity, bearing children and bearing them for somebody else for money. I suppose you could define this phenomenon in several ways, but I don’t think that is the interesting part of the discussion. I think the core idea is clear.

JL: There are some distinctions as to how the whole situation is labelled. Anderson states that it could be seen as baby-selling, while Satz rejects this notion. What would be your point of view on this terminology?

BW: I think you just mentioned two very sophisticated authors. Two very sophisticated standpoints. I suppose, personally and intuitively, I find myself more aligned to the moral outrage, or the moral reservation Anderson has. And I think Satz is maybe more, tends more towards, both in terms of commercial surrogacy as in terms of women’s sexual labour — what is called women’s sexual labour — so prostitution. Satz seems to give more room, or allow more room for the acceptable practice of commercial surrogacy, or commercial prostitution.

JL: …You have read a lot about different markets and how they are structured. Would you qualify the market for commercial surrogacy as any other type of labour market?

BW: No, no, clearly not. The market for surrogacy is a central core example I would say about the whole discussion of the moral limits of markets. Sandel started it, but there are also others — for example, Elizabeth Anderson and Debra Satz and Michael Walzer. These are all contributors to that discussion. And Satz, Anderson and Sandel, all three make use of the case, or the example, of commercial surrogacy as a core example of what is at stake in the whole discussion about should there be moral limits to markets.

JL: Let’s go back to the idea of commercial surrogacy being a labour market. You said you saw it differently from other types of labour. Can you please explain why?

BW: Well I think it is different from more neutral, or less personal services because they involve less of your personal integrity. I think commercial surrogacy is a clear attack or invasion to your personal integrity.

JL: But when you go about this personal bond that you say that this service is. Do you think that reinforces the idea that women are baby-making machines…?

BW: I think that is part of the problem. The image problem is one. But the other, I think, the core problem for me is that this is not the kind of service that you should do for commercial reasons. It is like selling your body to the highest bidder, basically.

JL: So you are comparing it to slavery?

BW: Not necessarily. I think It is more akin to prostitution, basically. Slavery is another type of social problem I would say. There are no moral limits of markets involved in slavery, I would say.

JL: There is this assumption that you were making about how personal it was. Not all mothers bond with their fetuses.

BW: No, that is true.

JL: For some people, it isn’t personal at all.

BW: No, but I think that is very unfortunate. I think that should be the exception.

JL: What do you think are some of the social and cultural backgrounds that make some societies allow it…?

BW: I wouldn’t know really. This strikes me as far too deterministic. That you would, so your question basically is, is it a coincidence that it happens more often in Ukraine? For example, nowadays. We used to look at India, but India has banned commercial surrogacy now. But it does go on in economies like Ukraine, which is of course not a very well developed or very rich economy.

JL: However, it also happens in California, which is quite rich.

BW: It happens in California, but then, I don’t know, we would need to empirically research the figures.

JL: Do you have any hypotheses though?

BW: Well, I would expect it to be far more common in poor economies than in rich economies like in California. So I would expect to find it in Ukraine rather than in California or Canada. We talk about commercial surrogacy.

JL: Commercial surrogacy, yes.

BW: So not surrogacy by itself, because it can also be an act of love if you do it for somebody that you like.

JL: So you would blanket ban it all over the world?

BW: I would need to learn about cultures. We talk about commercial surrogacy, I do not object to personal surrogacy when you do this as an act of love — if you do it to help somebody on a personal basis. I think that is a completely different proposition. I am against the idea of commercial surrogacy, and if we take that as a point of departure, then yes, I would extend that to the whole world.

JL: When it comes back to commercial surrogacy, if two parties are willing to donate the genetic material and carry the baby to term in the womb. Why would we object to this consent?

BW: Well that’s a good question. I suppose we could object to this consent because it denigrates and degrades the role of the woman who does it. And I suppose it also has an impact on the public image that we have of women.

JL: Isn’t that argument paternalistic — we have to protect women?

BW: I am not saying that we need to protect women, but I think that we need to respect women in certain natural functions that they do for us. They help us reproduce.

JL: So in the interest of respecting women, you are taking women’s ability to choose away from them?

BW: Yeah, I suppose there is an element of paternalism there, as there is in all moral legislation. But I think it is very naïve, what would be the right word in this context? Naïve and lacking of critical assessment to say that everybody should be free to decide their own fate. Because certain people would do this out of monetary reasons.

JL: Do you think it is ironic in your position as a man to tell women what to do?

BW: I suppose it is ironic. But then isn’t that what morality is about? It’s what we think is desirable, and what we think we should realize in the world. That may be paternalistic, may be ironic. Yes, I plead guilty.

JL: This relates to body autonomy. Are you saying that there should be limits to body autonomy?

BW: To the extent that I think it is a good thing that we prevent women from making their bodies available for these kinds of purposes, yes. If that means that we have to forbid, or that we need to restrict, I think in the background there is a more general political discussion. There is this discussion between the libertarian idea that everybody should be a boss in their own body, and should decide what to do with their own body which is a typical anti-paternalistic libertarian idea. But then you have other people like welfarists, or people like John Rawls, who would be far more willing to restrict the interactions of people, the choices that people supposedly make on a free manner, but maybe under duress. There are reasons why you would want to restrict certain kinds of transactions.

JL: When it comes to duress, though, from a pragmatic point of view; isn’t it better to allow the family to have at least a source of income…?

BW: Well maybe. Maybe that would be a valid counter-argument, but it would still detract, it would still go against the autonomy and the integrity of the human body. It would come at a cost.

JL: If we go back to the specifics of commercial surrogacy, some people claim that the moment you sign the contract does not reflect how you feel about the contract after giving birth. Would you agree that this is a valid reason to ban commercial surrogacy?

BW: Well that may be a psychological reason that comes in addition to the moral hesitations that I have with the practice of commercial surrogacy. That might be a reason, so that would have more to do with the state of mind in which people are when they commit themselves in such a contract. You can never know how you will feel 9 months on. When you actually have to give away the baby, and then you may regret that. But that’s more of a psychological argument I would say, it is not necessarily a moral argument, it is more of a pragmatic argument than a moral argument.

JL: How much weight should we give morals versus pragmatics?

BW: Well I think morals are important. And I am not sure if you are looking for a ratio or a quantification. Then, I am not sure that I can help you. But it is certainly an important consideration.

JL: Let’s talk about a different perspective here and talk about the child born from surrogacy. Do you think commercial surrogacy can impact the child born from it?

BW: I don’t know, maybe. But that’s not my primary consideration. That is not a reason why I think commercial surrogacy is undesirable. I think it is undesirable because we shouldn’t want women to rent out their wombs, basically.

JL: Do you think that commercial surrogacy commodifies children themselves?

BW: Yes, I clearly think that is a risk. Very much depends on if you say commercial, then yes. Commercial to me equals commodification.

JL: But don’t you think that ignores the outcome of the industry…

BW: You already called it industry, and that worries me a lot. I don’t want this to develop into an industry. We are already long past the critical point. I would like to stop it long before, if I can.

JL: Let’s go back to definitions. How would you define parenthood?

BW: Well the parent is the person who is involved in the production and education of the child. So I would have it as a dual definition, a dual function there.

JL: When you use the term production…

BW: Yeah, I hesitate. I already felt that… no, this not what I want to say. Because it makes it really industrial…

JL: Exactly, because you criticized when…

BW: Yeah ok, I take that back. I must find an equivalent that is less loaded. When I was saying it, I was already dissatisfied with the word.

JL: But then again, what about under the table deals? We spoke about morals. But if it is a possibility, and people know about it. How would you address a black market?

BW: Well, I would fight a black market as efficiently as I could. But then, by definition, if it is not in my view, I would only have limited possibilities to fight that market.

JL: Thank you very much for your time. I think there are many conversations and thoughts that can come from this topic, commercial surrogacy. Thank you for shining light on some of them.

BW: Yes, José, it was my pleasure.

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