Commodification of the womb

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Commodification of the womb is a Marxist concept related to the sale of functions performed by the human uterus.

The Marxist view of this market transaction views the womb, or uterus, and the woman in which it resides, as a service provider in the marketplace. In Marxist terms, the womb in its commodified state has both exchange value and use value. Market transactions involving the services of women's wombs (i.e. surrogacy) became increasingly common in the early twenty-first century. Such transactions are generally relied upon by those unable to conceive and those who are willing to pay someone else to bear pregnancy. Commodification of the womb raises several ethical and legal questions, which have expanded from questions regarding the rights of surrogates and biological parents, and the legitimacy of a child resulting from the transaction, to questions regarding transnational surrogacy within a global market. In vitro fertilization, as well as embryo and egg freezing, have added related complications to this issue.

History

Background

Through modernization of reproductive technology, the options for having a child has expanded to include artificial insemination, in vitro fertilization, and surrogacy as possible solutions when faced with infertility. A woman may essentially offer to rent her womb for the gestation of a child who will be given to another person following the birth of the child. Surrogacy has been a practice throughout history, yet has become more popular in the modern day.

In the Bible, Rachel, who was infertile, gives her handmaid Bilhah to her husband Jacob to bear him children. The two children, Dan and Naphtali whom Bilhah gave birth to were given names by Rachel who was considered their mother following birth. This was the earliest biblical example of surrogacy. [1] From the Middle Ages to modern times, other reproductive services have also been supplied for a fee. For example, in the Middle Ages, a wet nurse would feed and care for another woman's child in exchange for payment. These reproductive services are often provided by lower-class women to wealthier women, either for an individual fee or as part of her employment.

New reproductive technologies

In the late twentieth and early twenty-first centuries, developments artificial insemination made impregnation possible without sexual intercourse. [2] Thus the market for commodification of the womb was transformed. Through the advancements of modern technology, potential parent(s) have the ability to enter into a market transaction with a someone who agrees to gestate a child, either of their own egg or that of a surrogate, with the contractual obligation of turning this child over upon birth. Due to the high costs associated (often $100k+ per child) and typical lack of insurance coverage, having a child born of a commercial surrogate may be considered a luxury good. [3]

Early markets

Viewing the womb as a commodified good allows for the understanding of the market supply, demand, and transactions that take place with a part of the human body. The market for commercial surrogacy began to take shape in the late 1970s; one of the more prominent figures in this market was attorney Noel Keane of Michigan, United States. [4] Keane drew up the first commercial surrogacy contract in 1976. [5]

Keane started brokering deals, for a fee, between potential surrogates and parents until he found out that it was illegal for a genetic parent to sell their child to another person in the state of Michigan. Keane's business model was to have fathers contribute sperm and the surrogate mothers provided eggs. The surrogate mothers were genetically related to the child, while the non-birth mothers were not. Such surrogacy arrangements were illegal in some states on the basis that the non-birth mothers were paying the biological mothers for their genetically related children. The state of Michigan was one such state that enacted laws forbidding these surrogacy arrangements, thereby making Keane's business model illegal. [6] The main purpose of these laws was to prevent the sale of infants as if they were property. Some states viewed surrogate contracts as void, the payment for a child was illegal, and/or viewed artificial insemination as adultery, if the couple was not married. [6]

To avoid the legal issues Keane thought women would volunteer, without pay, to become surrogates out of an altruistic motivation. However, without the promise of financial compensation, Keane found a sharp decline in the number of women who volunteered. [4] In the early 1980s, Keane moved his commercial surrogacy business to Florida, where laws were more lenient. Florida also had no laws regarding the exchange of money for infants. [7] A commercial surrogacy broker could be viewed as organizing production and offering a product to the market. This raised the question of whether women and children are being viewed as commodities without sufficient regard for their autonomy. At the outset of commercial surrogacy, the laws in place in the United States were not equipped to handle the resulting legal and ethical questions that would arise. As with many modern markets, womb commodification has moved from local markets to outsourcing in foreign countries.

Conceptualization

Commodification refers to the process by which goods and services are transformed into commodities to be bought and sold in the market. In Capital, from the Fetishism of the Commodity and its Secrets, Karl Marx describes a commodity as a thing. Marx calls commodities trivial, strange, and use values to satisfy human needs. [8] Marx conceptualizes the commodity as something man transforms from raw materials into a final good. Goods, in his definition, are inherently not human, making commodification of the womb difficult to fit into a Marxist framework. The womb itself is not a good, but its functions can be highly profitable.

Ethics

Womb commodification raises ethical questions regarding exploitation of poor/low income women, the rights of the child, and the natural biological function of the human body. [9] The commodification of the womb also tries to balance a woman's right to enter in to a contract and to make decisions regarding her own body. Surrogates can be viewed as economic agents engaged in free market trade. The commodification argument asks whether women are being given control over their body, or whether they are being exploited for their individual body parts with monetary incentives.

An ethical argument against commercial surrogacy is that it allows the rich to take advantage of the willingness of poor women to perform any job as long as they are able to earn a wage. A woman may choose to commodify her womb for money because she is faced with no other profitable options for employment; however, the payment arrangement and monetary value varies from case to case.

Since the surrogate functions as a gestational carrier, only carrying the pregnancy to delivery; the surrogate has no legal claim or responsibility to the child after pregnancy. This causes an ethical issues regarding the rights of the child. There is no claim to the gestational carrier after birth, which often means the child cannot obtain any information about the carrier or possible siblings. [10]

Women in the modern world often carry children with no biological relationship to them. This transforms the nature of a woman's body's function into a commercial transaction.

Reproductive technology is a relatively recent phenomenon with little universal regulation. [11] Surrogates, clinics, and commissioning couples often choose the market that is most favorable, beneficial, or profitable to them. Many individual states in the United States view the gestational mother as the legal mother, which can prove problematic when determining rights of the surrogate versus the rights of the commissioning couple. [12]

Opposition and challenges to surrogacy agreements most often relate to the nature of the surrogacy contract. [13] One of the legally debated questions is whether the contract is granting a woman the right to sell the service of her labor through womb rental or whether the surrogate and the commissioning parents are entering into an agreement to sell/purchase a child. One of the most controversial legal issues is determining the rights of surrogate as the birth mother versus contractual obligations of the surrogate as a party to a contract. A mother is commonly defined as a woman who has given birth or legally adopted a child. [14] The law often does not keep pace with technology. With the advancements of surrogacy and the invention of commercial surrogacy, what it means to be a mother will inevitability need to be redefined.

A question at the forefront of legal debates is whether the birth mother may be required to relinquish her rights to the child, or whether the biological parents’ rights supersede the rights of the birth mother. [13] In order to avoid the sale of a human, which is illegal, the focus of a surrogacy contract needs to focus on the legal use of the surrogate's womb to be enforceable. There is little case law on which to rely and this legal battle is made more complex when the element of transnational surrogacy is added. Birth often confers nationally and citizenship. With transnational surrogacy being a common form of commercial surrogacy, there is growing demand for international regulation of this burgeoning market.

Surrogacy laws by country

There are two types of surrogacy: commercial surrogacy and altruistic surrogacy. Commercial surrogacy is when the surrogate offers the rental of her womb to the market for financial gain. Conversely, the surrogate generally does not profit from the rental of her womb in altruistic surrogacy.

The following countries legally permit both commercial surrogacy and altruistic surrogacy: Russian Federation, Ukraine, Belarus, Georgia, Armenia, Cyprus, India, South Africa, and the United States (in the states of Arkansas, California, Florida, Illinois, Texas, Massachusetts, and Vermont).[ citation needed ]

Other countries permit altruistic surrogacy: Australia, Canada (except Quebec), the United Kingdom, Netherlands, Denmark, Hungary, Israel, and United States (in the states of New York, New Jersey, New Mexico, Nebraska, Virginia, Oregon, and Washington).[ citation needed ]

There are also countries in which any form of surrogacy is illegal, Germany, France, Spain, Italy, Switzerland, Austria, Norway, Sweden, Iceland, Estonia, Moldova, Turkey, Saudi Arabia, Pakistan, China, Japan, and the United States (in the states of Arizona, Michigan, Indiana, North Dakota). [15] Due to varying options within a home country many people seeking a commercial surrogate choose to seek markets abroad. India legalized commercial surrogacy in 2001. [16] Legalization was pushed forward with the hope that medical tourism, and specifically reproductive tourism in India would increase.

Economic and social impacts

With a lack of regulation in the commercial surrogacy market, payments to surrogates can vary depending on the terms of the individual contract. [17] India is a favored location for commercial surrogacy due to the lower costs. By some estimates, those wishing to enter in to a commercial surrogacy contract could save as much as $70,000 in India versus the United States. [18]

Social benefits

By becoming commercial surrogates women in India are enabling themselves to improve not only their lives but also the lives of their families. It is common for surrogates to have had limited access to education, which could limit the opportunities for employment in the market. [17] Payment for surrogacy varies by contract, estimates range from the equivalent of three times what the head of household could make in a month, [17] to earning in nine months an amount that would take fifteen years worth of work. [19] This amount of money can provide access to better housing, food, education, and sanitation, that would otherwise not be probable.

Former surrogates also have the ability to become agents for surrogacy clinics. Agents, for a fee, facilitate a surrogate's doctor's visits and look out for the care and wellbeing of the surrogate throughout the course of her pregnancy. Becoming an agent allows the woman to have several patients and she is able to collect fees from each of them, which may further improve her financial situation. [17] It was expected that profits for commercial surrogacy would reach as high as six billion dollars by 2012. [19]

6 September 2018, Section 377 of the Indian Penal Code is declared unconstitutional in India. After this path breaking decision, surrogacy, especially single father surrogacy will see a boost among LGBT community. [20]

Clinics

When a woman signs a contract to become a gestational carrier she is subject to hormone administration and embryo transplantation to become impregnated. Many, but not all surrogates move to gestational hostels and receive better medical treatment and care than they would receive were they giving birth to their own child free of the obligation of a contract. [21] Nutrition, health, and rest are all monitored as part of the contract, with the wellbeing of the fetus often paramount to that of the surrogate.

Many clinics that broker transnational surrogacy prefer women who have already given birth, as the clinics have evidence of a viable uterus. The clinics may also prefer women who have their own children, with the hope that the surrogate will not bond with the fetus. Surrogacy contracts focus on the rental of an unused womb, with the belief that the fetus is the property of another. Many surrogates only receive full payment for their service if the full duration of the pregnancy is met.[ citation needed ] The appeal for foreign parents of transnational surrogacy is due to the lower costs and wage demands than they would find in their home country.

Dr. Nayna Patel runs the Akanksha clinic, in Anand, Gujarat. At first most of the clients seeking fertility services from the Akanksha clinic were Indian, but their clientele has expanded to Westerners also seeking a child. Many come to this distant clinic as the fees are too high in their own country - foreign couples are seeking lower priced alternatives to local surrogacy, and foreign surrogates may be willing to accept a lower fee. Surrogates at the Akanksha clinic have the possibility of making $5500 for this transaction, a sum of money that is significant in providing for a family, education, housing, and wellbeing when compared to other alternatives. [22]

Citizenship and transnational surrogacy

Citizenship

Citizenship of a child has traditionally been established through jus soli, right of the soil, and/or jus sanguinis, right of blood. [23] Surrogacy challenges the traditional view of citizenship, by redefining what it means to be a mother. Nations must now consider if a mother is the person who physically gave birth to the child, the one who provided her ovum, or the one who will care for the child.

In July 2010, consuls general from Belgium, France, Germany, Italy, the Netherlands, Poland, Spain, and the Czech Republic sent letters to surrogacy clinics in Mumbai, India, to direct potential clients from these countries to seek guidance from their consulates before entering into surrogacy contracts. These countries have varying surrogacy laws, and many of their citizens have faced difficulties upon trying to gain citizenship rights for children born in India. [23]

Manji

One of the most well known cases of problematic transnational surrogacy and lineage is that of the baby girl known as Manji, born in 2008, in India. Manji's birth was the result of a commercial surrogacy contract between her Japanese parents and her Indian surrogate. Before Manji's birth, her parents divorced, and her commissioning mother refused to claim her. Under Indian law, an infant's passport may only be issued in conjunction with the mother's. Since neither her Japanese or Indian mother would claim Manji, for a brief time she was not considered a citizen of Japan, India, or any other country. [19] It was not until her paternal grandmother claimed her, accompanied by a lengthy legal battle, that Manji was able to apply for a passport and citizenship.

See also

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<span class="mw-page-title-main">Mother</span> Female parent

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Baby M was the pseudonym used in the case In re Baby M, 537 A.2d 1227, 109 N.J. 396 for the infant whose legal parentage was in question.

<span class="mw-page-title-main">Surrogacy</span> Arrangement in which a woman carries and delivers a child for designated parent(s)

Surrogacy is an adoption arrangement, often supported by a legal agreement, whereby a woman agrees to childbirth on behalf of another person(s) who will become the child's parent(s) after birth. People pursue surrogacy for a variety of reasons such as infertility, dangers or undesirable factors of pregnancy, or when pregnancy is a medical impossibility.

Third-party reproduction or donor-assisted reproduction is any human reproduction in which DNA or gestation is provided by a third party or donor other than the one or two parents who will raise the resulting child. This goes beyond the traditional father–mother model, and the third party's involvement is limited to the reproductive process and does not extend into the raising of the child. Third-party reproduction is used by couples unable to reproduce by traditional means, by same-sex couples, and by men and women without a partner. Where donor gametes are provided by a donor, the donor will be a biological parent of the resulting child, but in third party reproduction, he or she will not be the caring parent.

Egg donation is the process by which a woman donates eggs to enable another woman to conceive as part of an assisted reproduction treatment or for biomedical research. For assisted reproduction purposes, egg donation typically involves in vitro fertilization technology, with the eggs being fertilized in the laboratory; more rarely, unfertilized eggs may be frozen and stored for later use. Egg donation is a third-party reproduction as part of assisted reproductive technology.

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Surrogacy in India and Indian surrogates became increasingly popular amongst intended parents in industrialised nations because of the relatively low costs and easy access offered by Indian surrogacy agencies. Clinics charged patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate's fee, and delivery of the baby at a hospital. Including the costs of flight tickets, medical procedures and hotels, this represented roughly a third of the price of the procedure in the UK and a fifth of that in the US. Surrogate mothers received medical, nutritional and overall health care through surrogacy agreements.

<i>A.G.R. v. D.R.H</i>

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<span class="mw-page-title-main">Surrogacy laws by country</span>

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The Akanksha Infertility Clinic is a women's health centre located in Anand, Gujarat, India, and headed by Dr Nayna Patel. The clinic was founded in 1999, and was originally focused on In Vitro Fertilization. India declared commercial surrogacy legal in 2002; however the clinic did not begin to do surrogacy until 2004. Patel, who appeared on Oprah Winfrey's talk show in 2007, has produced more than 1000 surrogate babies as of October 2015.

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LGBT parents in Canada have undergone significant progress in terms of both legal and social acceptance. Same-sex couples who wish for parenthood now enjoy equally the possibilities, responsibilities and rights of opposite-sex couples. Following the nationwide legalization of same-sex marriage in 2005, the number of LGBT families in Canada has increased substantially, paving the way for same-sex couples' aspirations of having their own children. Legal methods of assisted reproduction range from insemination via IVF through to surrogacy arrangements.

Surrogacy is legal in New Zealand if it is performed altruistically, where the surrogate donates her services selflessly, without any compensation beyond the coverage of expenses. Commercial surrogacy, where the surrogate is paid in addition to the coverage of expenses, is not legal. There is a lack of specific legislation and regulations dealing with surrogacy, though the recent increase in surrogacy cases has led to a number of amendments. New Zealand is party to the United Nations Convention on the Rights of the Child, and ratified it in April 1993. The primary principle of this convention is that the best interests of the child are paramount, which must then encompass all surrogacy agreements and regulations. The lack of clear surrogacy legislation in New Zealand has led to many couples engaging in reproductive tourism in order to ensure the surrogacy is successful. This has the potential to significantly impact the human rights of all of the parties involved.

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Surrogacy is legal in Canada provided that it is altruistic (unpaid). The Assisted Human Reproduction Act of 2004 criminalizes commercial surrogacy. The validity of surrogacy contracts and the process for establishing parenthood of the child is governed by provincial law. Quebec law did not recognize surrogacy contracts from 1994 to 2023, and continues to regulate them more strictly, whereas British Columbia has the most permissive laws governing surrogacy. Provinces also vary in the degree to which they compensate surrogacy expenses, such as IVF procedures.

Amrita Pande is an Indian sociologist and feminist ethnographer based in South Africa, tenured as a professor at the University of Cape Town. She was the first to publish a detailed ethnographical study on the surrogacy industry in India with her book Wombs in Labor (2014). Pande has also been appointed as the lead for the National Research Foundation project into the surrogacy industry of South Africa.

<i>O.R v an Tard Chlairaitheoir</i> Irish Supreme Court case

M.R. and D.R. & ors v An tArd-Chláraitheoir & ors, [2014] IESC 60 is an Irish Supreme Court case in which the Court held that the Civil Registration Act 2004 only allows the birth mother to be on the birth certificate. Thus, children born through surrogacy will have the name of their birth mother on their birth certificate and not of the genetic mother, who intends to raise them.

References

  1. ↑ Twine, France Winddance. "Outsourcing the Womb: Race, Class and Gestational Surrogacy in a Global Market", Routledge, Taylor & Francis Group, 2016, pp. 6–15
  2. ↑ Ombelet, W.; Van Robays, J. (2015). "Artificial insemination history: hurdles and milestones". Facts, Views & Vision in ObGyn. 7 (2): 137–143. ISSN   2032-0418. PMC   4498171 . PMID   26175891.
  3. ↑ Murray, Christopher (February 20, 2024). "The Cost of Surrogacy in America". Synchrony Bank. Retrieved April 10, 2024.
  4. 1 2 Spar, Debora. “For love and money: the political economy of commercial surrogacy,” Review of International Political Economy 12 (2005): 287-309.
  5. ↑ creativefamilyconnections (2022-09-13). "History of Surrogacy | When Did Surrogacy Become Legal?". CreativeFamilyConnections. Retrieved 2024-04-10.
  6. 1 2 Keane, Noel P. “Legal Problems of Surrogate Motherhood,” Southern Illinois University of Law Journal 5 (1980): 147-169.
  7. ↑ Merino, Faith. “Adoption and Surrogate Pregnancy.” June 2010. New York, Facts on File: 36.
  8. ↑ Karl Marx. “The Fetishism of the Commodity and its Secret,” Capital Volume I. (London: Penguin Books, 1990) 163.
  9. ↑ “Surrogacy.” The Center for Bioethics and Culture, www.cbc-network.org/issues/making-life/surrogacy/.
  10. ↑ “Surrogacy.” The Center for Bioethics and Culture, www.cbc-network.org/issues/making-life/surrogacy/
  11. ↑ Patton, Brock A. "Buying a Newborn: Globalization and the Lack of Federal Regulation of Commercial Surrogacy Contracts." UKKC Law Review volume 79: (2010-2011) p 507-534.
  12. ↑ Ramskold, Louise Anna Helena, and Marcus Paul Posner. “Commercial surrogacy: how provisions of monetary remuneration and powers of international law can prevent exploitation of gestational surrogates.” Journal of Medical Ethics (2013): 397-402.
  13. 1 2 Anderson, Kelly A. "Certainty in an Uncertain World: The Ethics of Drafting Surrogacy Contracts." Georgetown Journal of Legal Ethics, volume 21 (2008). p 615-630.
  14. ↑ Larkey, Amy M. “Redefining Motherhood: Determining Legal Maternity in Gestational Surrogacy Arrangements.” Drake Law Review (2003).
  15. ↑ Archived 2014-04-28 at the Wayback Machine “Surrogacy laws by country.” Surrogate Baby. Accessed April 25, 2014.
  16. ↑ Archived 2014-02-11 at the Wayback Machine “Children born through Surrogacy Arrangements,” Australian High Commission India, accessed April 9, 2014.
  17. 1 2 3 4 Deomampo, Daisy. “Transnational Surrogacy in India: Interrogating Power and Women's Agency.” Frontiers: A Journal of Women Studies, Volume 34, Number 3 (2013): 167-188.
  18. ↑ Jaishankar, K., and Natti Ronel, editors. “Second International Conference of the South Asian Society of Criminology and Victimology.” (2013): 167-169.
  19. 1 2 3 Parks, Jennifer A. “Care ethics and the global practice of commercial surrogacy.” Bioethics, Volume 24, Issue 7 (September 2010): 333-340.
  20. ↑ "Single Father Surrogacy | Unnatural responsibility or Unblended Love?". BlogNox. 2017-08-22. Retrieved 2018-09-16.
  21. ↑ Vora, Kalindi. “Limits of “Labor”: Accounting for Affect and the Biological in Transnational Surrogacy and Service Work.” South Atlantic Quarterly, Winter 2014.
  22. ↑ Amrita Banerjee. “Reorienting the Ethics of Transnational Surrogacy as a Feminist Pragmatist.” The Pluralist Volume 5, number 3, Fall 2010.
  23. 1 2 Deomampo, Daisy. “Defining Parents, Making Citizens: Nationality and Citizenship in Transnational Surrogacy.” Medical Anthropology: Cross-Cultural Studies in Health and Illness, posted online March 10, 2014, accessed April 9, 2014.
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