The Western Australian government's Department of Health recently finalised an inquiryinto assisted reproductive technology and surrogacy. One of the terms of reference was to consider if surrogacy could be made mercenary (described in the report as commercial) or should be limited to the altruistic system that currently exists in all Australian jurisdictions that have addressed the subject. Of the 126 written submissions to the inquiry, the majority chose the altruistic type of surrogacy; this conclusion was also reached by the inquiry's report produced. The three main justifications for continued prohibition were, in the eyes of the author, Associate Professor Sonia Allan: commodification of the mother as well as the child, exploitation of poor women, and the best interests of the child.
What is Commodification?
Commodification is defined as turning an entity into, or treating it as, a commodity. With regards to people, the most known example is slavery, but others would be a dictatorship using healthy convicts as reservoirs of body parts to be sold to those needing transplants, and governments, democratic or otherwise, using national service to staff public hospitals with nurses paid at lower-than-market rates. Another example, one which often flies under the radar, relates to the opposition to school financial vouchers where parents have the option to send their children to private schools. On this site in 2006, Andrew Mcintosh of the Australia Institute arguedthat, amongst other reasons, vouchers should be denied because the end result of them is "a hierarchy of schools in which disadvantaged students are concentrated in under-resourced public and private schools. Because peers influence individual student results, the increase in segregation could … increase the inequality in education outcomes." The argument therefore is that higher-performing students must not be allowed to move to private schools because, due to the loss of peer influence, the remaining students' results will decrease. Similarly, an Australian education news site warns of vouchers, citing the "increasing residualisation of disadvantaged public schools". In the eyes of Mcintosh, and unfortunately too many other academics, the higher performers are merely a commodity to be utilized in whichever way benefits the education of the others.
What becomes interesting about the report's approach is that, as compared to the above examples, commodification can also be a wrong even when the 'victim' volunteers to be commodified. Not for any physical harm done to her, but if a surrogate mother wishes to earn $50,000 to create a baby for others, she must be prevented because of the apparent psychological harm that will be done to her. To follow this logic further, imagine a situation where you are strolling along the harbour front on a summer's day and the captain of a yacht asks you if you would like to come sailing for the afternoon because the fifth member of his crew hasn't turned up. It doesn't take you long to realise he doesn't desire your company because he sees you as a person of intelligence, warmth, feelings and humanity, but rather as 75 kilograms of ballast to lean out port or starboard side when directed. You are free to decline the offer, but if you accept the few hours of pleasant sailing does that make you the victim of a wrong?
In stark comparison to a potential surrogate woman asking to be commodified, not all students agree to be denied vouchers, yet we forbid the surrogate commodification while condoning what's done to unwilling student victims.
In addressing the issue of mercenary surrogacy, it did not take the report's author long to choose the divisive and emotive phrase, "the exploitation of poor families for the benefit of rich ones".
We can hope it was not a choice made on Harmony Day. Even then, the Dickensian rich family / poor family dichotomy does seem a bit of a stretch. It could be middle-class couples who would be prepared to invest five years or more of their savings to also be blessed with something integral to their reason for living. And with regards to the rich family on Nob Hill, it is not as though they are buying the poor family's children, but simply that the mother will be inconvenienced for a few months, not only to make her family less poor, but also to help an infertile couple gain a desired child.
Furthermore, one might ask what the specific elements of exploitation are. Few would argue one element is that one party to the contract/ arrangement, the victim, may be in straitened circumstances. Okay, but which of the rich barren family, or poor fertile one, is the family being exploited? Considering that one family suffers from its lack of children, while the other lacks necessary comforts, are they, ironically, not both in straitened circumstances? It gets beyond ridiculous to declare that a contract between two parties must be denied because it entails a wrong, yet it is difficult to identify just who is the unconscionably acting malefactor, and who is the innocent victim.
"One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool." George Orwell, Notes on Nationalism, May 1945.
In another section of the report, reference was made to instances reported in academic journals and a documentary where third-world women are in economic situations that, to quote one 25 year old Indian housewife, "can't possibly get any worse" and what they "have to do to survive" is actions "such as selling a kidney or entering the sex worker trade" if surrogacy is not available to them. And the author's response to this predicament?
"In such circumstances there are strong arguments against [commercial surrogacy] in lieu of addressing the broader social, economic, and class issues they face."
Yes, as the economy of the underdeveloped country slowly increases over the years and more wealth permeates, the motive to perform acts viewed as unpleasant decreases, but subject to some mythical social and class revolution long awaited by activists but still to arrive, what are suffering indigent women to do today to keep the wolf from the door? Incredible as it may seem, the author's implied response is that rather than engaging in the 'dehumanising' practice of surrogacy, it is better to sell an organ or become a prostitute.
Similarly to acquiesced commodification, exploitation is not a harm that can befall the undefended. The Equity Law concept, 'volenti non fit injuria' translates from the Latin to declare there can be no injury to the willing, what would appear a very reasonable rule. Thus, one would think the fact of being of sound mind, in full knowledge of possible ramifications, and having taken legal advice, would be enough to preclude any wrong.