Is surrogacy baby trafficking?

Surrogate mother Pattharamon Janbua and her baby Gammy have been a lightning rod for discussion about surrogacy law in ...

Surrogate mother Pattharamon Janbua and her baby Gammy have been a lightning rod for discussion about surrogacy law in Australia. Photo: EPA

Proponents of surrogacy claim that it is completely different from prostitution.  But are there similarities?

Many people agree that it should not be possible to buy and sell pregnancy for money—but what if someone bears a child for a friend or a relative? What if a woman bears a child for her infertile sister, a mother gives birth to her infertile daughter’s child or a friend of a homosexual couple offers to carry a child for them?

Altruistic surrogacy is advocated by, for example, Birgitta Ohlsson of the Liberal Party of Sweden. She believes that altruistic surrogacy is completely different from commercial surrogacy.

Author, Kajsa Ekis Ekman.

Author, Kajsa Ekis Ekman.

According to her argument, if we don’t accept this ‘milder’ variant, we will instead get the ‘worse’ form in which Indian women are exploited. This is reminiscent of the distinction between prostitution and trafficking in which ‘voluntary, humane sex work’ is set against the forced and inhumane trafficking.

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If it were just a matter of allowing one form of surrogacy in order to avoid another, we would never see Australians or Americans seek out the Indian or Thai market.

The fact that altruistic surrogacy is legal in Great Britain and commercial surrogacy is legal in many American states (but not anywhere in Australia), ought to suffice to keep people from looking abroad, according to this argument. On the contrary, however, Americans, Britons and Australians are dominant amongst the foreign buyers in India.

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Americans who look to India explain their actions as follows: since surrogacy is well known and widely available in the USA, a doctor may advise them to try surrogacy after establishing infertility. When they begin to look into it, they find that it is expensive and since it is difficult to find someone who is willing to be a surrogate mother for free, they begin to consider India.

There is no proof that altruistic surrogacy will hold back the commercial market. In fact, it is even difficult to prove that ‘altruistic’ is an accurate term. In England, where only reimbursement of expenses is allowed, surrogates often get around this by claiming they need “long vacations abroad and a whole new wardrobe.”

If the procedure is legalised—a woman will bear a child as laid out in a contract—the risk that a black market will develop increases. As Kelly Oliver has shown in her studies of American surrogacy, few people actually bear children for others completely without compensation. When some states in the USA banned commercial surrogacy, agencies noticed that the number of willing surrogates sank dramatically. Just as trafficking is a consequence of prostitution and nothing else, commercial and altruistic surrogacy are different levels on the same scale.

The next question is, of course, whether altruistic surrogacy is more humane. Is it reasonable that a woman bears a child for someone else, with everything it involves, without receiving any compensation? Are familial relationships always equal, and do they guarantee that things will be done right? In US child custody cases involving altruistic surrogacy, some women claim that they were manipulated and forced into surrogacy by their relatives.

In my opinion, the distinction between altruistic and commercial surrogacy is a dishonest one. There is not actually any difference. What happens is the same in both: the woman is reduced to a container. Altruistic surrogacy functionalises motherhood, even when it doesn’t commercialise it. Instead of being an existential and spiritual experience for the woman, pregnancy is made into a function to serve others.

Functionalisation always precedes commercialization, as we have seen in prostitution. In order for something to be sold as separate from the seller, it must first be constituted as a separate function. What happens in the rhetoric of altruistic surrogacy is that it subversively accustoms people to seeing pregnancy as something a woman can lend to others—if she is not yet selling it.

Kajsa Ekis Ekman is the author of Being and Being Bought. Prostitution, Surrogacy and the Split Self (Spinifex Press 2013). She will be in Australia as a guest of the Sydney Opera House for the Festival of Dangerous Ideas (August 30 and 31).