ARTICLE ANALYSIS: SHOULD

COMMERCIAL SURROGACY BE LEGAL?

LGST001 G3 || Bentham-Mill
 AGENDA
1. Facts of the Case
2. Arguments For CS
3. Arguments Against CS
4. Class Discussion
5. Conclusion
THE ETHICAL ISSUE:
IS COMMERCIAL SURROGACY ETHICAL
GIVEN THAT
THIS MAY BE THE ONLY WAY SOME
COUPLES HAVE CHILDREN,
EVEN IF IT
COMMODIFIES MATERNITY
AND
RIGHTS OF THE CHILD.
WHAT IS COMMERCIAL SURROGACY?
➤ Commercial Surrogacy :
➤ Sponsors pay for surrogate mother's medical expenses +
services of pregnancy
➤ Two types: Traditional and Gestational
➤ Traditional: Biological relationship between the surrogate
mother and child
➤ Gestational: No biological relationship between the
surrogate mother and child (i.e. embryo is transferred)
FACTS OF THE CASE
Why are we even having this conversation?
CASE TIMELINE
Before Nov 2013

Couple decides to start a Couple is advised by Couple goes through

family together adoption agencies that commercial surrogacy
because of their process and engages a
homosexual orientation, surrogate mother in US
they would not be
allowed to adopt in
Singapore

Nov 2013 Aug 2014 Dec 2014 Dec 2017 Dec 2018

Child is born ICA rejects Adoption Lower court High Court

in US child’s application is dismisses the grants the
citizenship filed with the adoption adoption
application courts application
1. THE SURROGACY ARRANGEMENT:
1. Man's sperm + egg of an anonymous donor through IVF
2. Embryo was transplanted into the womb of the surrogate
mother, who carried the foetus to term for a fee
3. IVF and surrogate procedures done in the United States
➤ In Singapore, assisted reproduction can only be provided to
a married woman with the consent of her spouse
4. Paid US$200,000 to the surrogate mother (medical fees +
US$25,000)
2. ADOPTION APPLICATION
1. First adoption application in Singapore by someone who has
openly declared himself to be homosexual and is living with
his same-sex partner
2. An adoption order would increase the child’s prospects of
securing Singapore citizenship and possible long-term
residence in Singapore (where his natural father and family
support structures are) The courts considered :
➤ The child’s sense of security and emotional well-being.
➤ The long-term stability of care arrangements.
2. ADOPTION APPLICATION
1. First adoption application in Singapore by someone who has
openly declared himself to be homosexual and is living with
his same-sex partner
2. An adoption order would increase the child’s prospects of
securing Singapore citizenship and possible long-term
residence in Singapore (where his natural father and family
support structures are) The courts considered :
➤ The child’s sense of security and emotional well-being.
➤ The long-term stability of care arrangements.

Aren't these very Utilitarian considerations?

2. ADOPTION APPLICATION
3. The case was dismissed by lower court
➤ “the man was well aware that the use of medical procedures — such
as IVF — to have his own child would not have been possible in
Singapore”
➤ “child’s welfare does not demand unlocking the back door”
➤ “does not further the interests of a four-year-old child… (who) will
thrive anywhere if in the hands of loving people”
4. Chief Justice Menon (High Court):
A. Opined that the welfare of the child trumps policy opinions
against the formation of same-sex family units.
B. Ruled in favour of the adopting parents, on the basis of the child's
welfare.
 ARGUMENTS FOR
COMMERCIAL SURROGACY
Why not let the Free Market Decide?
A UTILITARIAN
PERSPECTIVE
 UTILITARIANISM
“Case studies”: High Court decisions

Benefit to the Child :

➤ The court deemed the case in benefits of the child for his/her sense of security
and emotional well-being.
➤ The stability and care provided by the “couple"
Benefit to the Couple/ Sponsor :
➤ The couple gains custody of the child, and they get to establish a family
Benefit to the Surrogate Mother :
➤ US$200,000 Compensation

The overall maximisation of pleasure over pain

 "BUT THE CHILD MAY BE
PSYCHOLOGICALLY HARMED!"
UTILITARIANISM
Author point: Commercial Surrogacy may bring upon psychological harm to the child

Counter Argument: The child might have better overall welfare

Hard to justify the complete range of good and bad

➤ There is no way to determine the well-being of
the child after birth
➤ Assuming the child has better overall welfare,
how can we measure if the pleasure outweigh the
pain and vice versa
A FREE MARKET PERSPECTIVE
(ADAM SMITH)
Commercial Surrogacy is Ethical, so long as all parties are
freely consenting to the agreement, and no fraud is involved.
A FREE MARKET PERSPECTIVE (ADAM SMITH)
Commercial Surrogacy is Ethical, so long as all parties are freely consenting to the
agreement, and no fraud is involved.
1. The Invisible Hand of the Market:
➤ The Market will adjust to make Commercial Surrogacy mutually
beneficial if :
➤ Commercial Surrogacy is a legal and common service.
➤ The commercial surrogate market is competitive
2. Surrogate Mothers should be able to offer a service to meet
market demand, with minimal interference from the
Government.
➤ The most utilitarian good can be derived from all parties being able
to make a self-interested decision.
PROBLEMS WITH A FREE MARKET ARGUMENT
Commercial Surrogacy is Ethical, so long as all parties are freely consenting to the
agreement, and no fraud is involved.

1. It may be impossible to create a free market for commercial

surrogacy because :
➤ Surrogate Mothers do not have perfect information on matters
of their own "Utility or Cost Functions":
➤ If their pregnancy can be safely carried to term.
➤ If they may develop a maternal bond with the child, whom
they may desire to keep.
➤ If the child would be born without defect or disability.
PROBLEMS WITH A FREE MARKET ARGUMENT
Commercial Surrogacy is Ethical, so long as all parties are freely consenting to the
agreement, and no fraud is involved.

2. Human Pregnancy cannot be considered a typical service or

good because :
➤ It is a natural process that cannot be innovated upon.
➤ Many aspects of pregnancy (gestation, conception, etc.) cannot be
controlled.
➤ The end-product (child) has rights as given by law, and cannot be
sold.
➤ Transfer of child custody will be necessary to fulfil any commercial
surrogacy contract.
➤ If so, the child would have to be bought as part of the agreement,
the law would have to change, to allow the sale of children.  
 ARGUMENTS AGAINST
COMMERCIAL SURROGACY
Kant, Rawls, Utilitarianism and Virtue Ethics
Arguments against the notion of Commercial Surrogacy.
 A KANTIAN
PERSPECTIVE
KANTIAN ETHICS ( ON PRINCIPLES OF UNIVERSALITY)
Author’s Point: Commercial surrogacy commodifies pregnancy and trivialises the
surrogate’s perspective
1. Commercial Surrogacy is not universally acceptable.
➤ It is not universally lawful in all countries for couples to seek
commercial surrogacy services.
➤ Not common practice for fertile women to carry child for
infertile couples for compensation, in Singapore.
2. No reciprocity
➤ Surrogacy agreements suppress, manipulates and trivialises
the perspective of surrogate mothers.
➤ Hence, it is not a reciprocal or fair agreement.
 KANTIAN ETHICS ( ON PRINCIPLES OF HUMANITY)
Author’s Point: Commercial surrogacy commodifies pregnancy and trivialises the
surrogate’s perspective

1. Commodifying pregnancy treats surrogate mothers as a

means to obtaining children (an end).
➤ No agreement of commercial surrogacy treats the surrogate
mother as an end unto herself.
➤ Surrogate mothers seen as "Baby Factory".
THINK-TIME

Scenario: If the pregnancy becomes a risky endeavour due

to health complications, does the surrogate have a right to
protect herself by aborting the pregnancy?
KANTIAN ETHICS ( ON PRINCIPLES OF HUMANITY)
"Even if some women really do not mind being surrogates, and even if
they claim to form no maternal bonds, condoning commercial surrogacy
objectifies women"
2. Disrespects Surrogate Mother's Autonomy
➤ Depending on the agreement, the surrogate mother may
be unable to make her own decisions once engaged in the
contract.
➤ Her autonomy may be overruled by sponsors as her
maternal rights are seen to be sold along with her
services.
KANTIAN ETHICS ( ON PRINCIPLES OF HUMANITY)
Author’s Point: Commodifies Children and Cheapens their Life

3. Commercial Surrogacy commodifies children,

disregarding their inherent humanity.
➤ Transferring custody of the child is necessary for the
contract to be fulfilled.
➤ Whole process is likened to putting a price on buying a
child, objectifying them, without concern for their moral
worth or dignity.
A RAWLS-IAN
PERSPECTIVE
If you are poor, would
you engage in
commercial
surrogacy?
(Given that your
rights may not be fully
respected)
RAWLS-IAN ETHICS (SOCIAL JUSTICE)
Author’s Point: If made legal, there will be far more poor surrogates serving the
child-bearing needs of rich intended parents.
Assumption: The poor are less educated and all surrogates possess maternal rights
An Unfair Allocation of Burdens to Surrogate Mothers.
1. Poor Surrogates can be unfairly exploited.
➤ The poor may not have the knowledge or power to fight for
own maternal rights, and out of desperation sell them to
the rich
2. Poor Surrogates are expected to undergo a dangerous and
painful pregnancy, to service rich sponsors.
➤ "Would the poor as a class be indirectly instrumentalised
and viewed as second-class citizens who would do such
jobs for what is a pittance to the rich..."?
IN CONCLUSION...
THANK YOU!
Any Questions?