Commercial Surrogacy Analysis

The legality of the controversial issue of commercial surrogacy is unsettled. Elizabeth S. Anderson in her 1990 study, “Is Women’s Labor a Commodity?”, aims to clarify this. Commercial surrogacy differs from altruistic surrogacy as it involves a financial transaction. The surrogate mother relinquishes parental rights and transfers custody to the father in return for a fee and paid medical expenses. The author examines whether surrogacy improperly treats children and women’s reproductive capacities as commodities. This is done by emphasising the predominance of exploitation and degradation which the surrogate faces during the process. The purpose of this article is to make an argument against traditional surrogacy. Her suggestions for action …show more content…
Traditional surrogacy differs from gestational surrogacy, which uses In Vitro Fertilisation (IVF) to allow the commissioning couple to have a genetically related child. The surrogacy in question, traditional surrogacy, is where the surrogate is inseminated artificially with the sperm of a man who would be the father. As the child is the father’s biologically, the surrogate would be giving away the legal rights of the child to the child’s genetic father (Kornegay 1990: 46). As a result, the child would not be a commodity as it would not be sold or bought. However, this argument can be considered flawed. Even if one were to claim that commercial surrogacy is not the sale of the child as the child is already the father’s, Anderson clarifies that child is still treated as a commodity due to the treatment of the surrogate’s rights over the child (1990: 77). The couple pay for exclusive rights to the child. If the surrogate were to refuse to relinquish her parental rights, she would not be paid of the service of surrogacy. As the child has not been given to the commissioning couple, she will not be paid. Even though the surrogate did not complete the service wholly by relinquishing her parental rights, the service of carrying and delivering the child was completed. Therefore, it can be inferred that it is not the service you are paying for, but the …show more content…
While the commissioning couple own the sperm and eggs, they do not own the embryos and subsequently children made from them (McLachlan and Swales 2000: 3). Supporters of commercial surrogacy insist that parental rights are not property rights. As an illustration, take the example of selling a home. When selling this property, money would flow from the buyer to seller and there would be a corresponding transfer of legal rights. This would establish the ownership of the house from one to the other. This is not the case with surrogacy. McLachlan and Swales argue that no rights are transferred from the surrogate mother to the commissioning parents (2000: 4). This is because even though the surrogate is paid when the child is given to the couple, no rights have been transferred because the child is not a commodity and surrogacy cannot turn it into one (Kornegay 1990: 48). It seems Anderson’s argument may need some modification. Anderson’s analysis incorrectly accounts for the possibility that the child would be treated merely as a commodity or inappropriately simply by being born from surrogacy (1990: 80). There is no evidence to suggest that children born from surrogacy feel less love from their non-biological parents. Anderson’s explanation of the norms of parental love fails to see that this would not change the love a parent has for their child. The significance of