By Lucas Taylor
Surrogacy, the practice in which one party (the surrogate) gestates a fetus on behalf of another pair/person (the intended parent/s or IPs), has sparked academic debates regarding gender equality and bodily integrity in the face of both commercial and altruistic agreements. I re-engage with this topic by challenging how the capacity of the surrogate to choose may be restricted under English and Welsh law. This post does not seek to argue against the practice of altruistic surrogacy. Instead, it seeks to highlight, through the lens of Social Reproduction Theory, that central to the legal framework is a highly gendered devaluation of labor which undermines the potential for surrogates to fully exercise choice in relation to their gestational labor.
Since the first piece of legislation passed in England and Wales on the practice of surrogacy (Surrogacy Arrangements Act 1985), which disallowed commercial arrangements, the practice has been elevated as altruistic in nature. The 1984 Warnock Report was of the view that payment would render the relationship between surrogates and intentional parents ‘positively exploitative’ by turning the surrogate into a mere means of procreation (para 8.17).
By the 1998 Brazier Report it was recognized that payment alone was insufficient to reduce a person “merely to a means,” given that “[t]o be treated as ends in themselves people must be able to exercise moral agency, to make a free and informed choice to carry out acts that serve the ends of others.” The actual problem, in the report’s view, was that payment increased the risk of exploitation, as women, unable “to foresee the risks entailed” in acting as a surrogate, could not truly consent to the physical and psychological tolls that gestation would involve (paras 4.23-4.25). Both of these protectionist approaches can be seen in the disallowance of payment to the surrogate either to motivate the entering into of such agreements or post-delivery embedded into the legislation which governs surrogacy in the Human Fertilisation and Embryology Act 1990 (s.30(7)), which was then modified by the 2008 Act (s.54(8) and 54A(7)). While reasonably incurred expenses (new clothes, transit, etc.) can be compensated women in England and Wales have understood for 37+ years that being paid for gestational labor is not permitted under the law.
By drawing on Ferguson and Bhattacharya, and their engagement with the Social Reproduction Theory work of both Federici and Vogel, a distinction between commercial and altruistic surrogacy can be seen as a replicated division between the public and private spheres of labor under Marx. It is the capitalist marketplace which differentiates between those labor performances that are seen as economically valuable in the creation of exchange-value (commercial surrogacy), and those which are socially reproductive and positioned outside the marketplace (altruistic surrogacy). This division of labor has traditionally obscured the labor performed (primarily by women) in the private sphere; the affective, reproductive, and biological labor from which the marketplace and its labor-force have benefitted. It is this “benefitting” that is central to a re-articulation of altruistic gestational labor as, according to Ferguson, “the capitalist economy… free rides on activities of provisioning, caregiving, and interactions that produce and maintain social bonds, although it accords them no monetized value and treats them as if they were free.”
However, if the market free-rides on reproductive labor and wants to treat it as free, then there has been one significant change that has the potential to fundamentally alter the relationship between the gestational labor of the altruistic surrogate and their exclusion from the capitalist marketplace: the birth of the bio-economy. Coined in 1997 by geneticists Juan Enriquez and Rodrigo Martinez in relation to the economic activity related to genetics, the bio-economy has evolved to cover “research and innovation in the biological sciences to create economic activity and public benefit.” The bio-economic marketplace can, therefore, be framed to include those activities that extract value through the marketability or instrumentalization of living entities. Extracting value from the human body was considered by Cooper and Waldby in relation to stem cells and Assisted Reproductive Technology (ART), as both industries extract value from the “generative energies of the donor’s biology, sustained over time” and operate alongside the skilled knowledge labor of scientists/doctors, which is currently recognized within the public sphere.
Unlike the traditional public/private labor divide which sought to exclude the performance of private sphere labor under economic conditions by drawing benefit indirectly from the affective/biological work of women, the bio-economic marketplace draws directly from the generative or embodied labor of those bodies engaged in cellular and/or gestational labor; incorporating the body of the surrogate into the process by which value is created/extracted. The resulting contradiction in the English narrative around surrogacy is that women are now capable of choosing to perform their gestational labor within the bio-economic marketplace and yet are barred from recognizing that said labor has economic value. It is within this gap that it becomes necessary to challenge the “gift” narrative which underpins the altruistic approach to surrogacy, as it is not a matter of women choosing to provide their gestational labor freely, but of being denied the opportunity to see gestation as economically valuable and then deciding for themselves whether to offer said labor to the IPs freely.
The 2023 Law Commission Report on surrogacy retains the altruistic approach (Chapter 12), noting that recognizing gestational labor as a site of remuneration would be a significant change to the existing law. The report considers “that such a change would be appropriate only if it was widely supported, and the consultation responses demonstrated that that is not the case. Both those who were opposed to surrogacy and those who are personally involved in surrogacy were generally opposed to introducing payments for gestational services” (para 12.81). However, if surrogates have always participated under a framework that replicates the narrative of altruism and the gift of life, internalizing this alongside the devaluation of reproductive labor entrenched under capitalism, then asking only those that may have been normatively conditioned to devalue their own labor and those opposed to the practice seems unlikely to elicit any sort of transformative response.
The purpose of this post is not to recommend a shift towards commercial surrogacy, nor does it claim that altruistic surrogacy is impossible. Instead, I seek to challenge the enforced nature of the gift that is being imposed upon surrogates under altruistic surrogacy. Laws that make it impossible for women to participate fully in the bio-economic marketplace — which are grounded primarily upon protectionist concerns of exploitation and infantilize women’s capacity to assess the risks associated with gestation — seem to inhibit or negate the possibility of autonomous choice. If society does not disallow people becoming soldiers, firefighters, police officers, etc., which involves a very clear risk of “unforeseeable harm” for money (and, in some cases, as volunteers), then we should grant surrogates the same right to marketplace self-determination. If the need for legal prohibition is based upon the fear that surrogates will elect to receive payment for their gestational labor, thereby transforming the domestic conception of altruistic surrogacy, then perhaps the continued devaluation of gestational labor is an even greater site of harm and gendered exploitation.
Lucas Taylor is a lecturer in law at the Middlesex University School of Law.
