The Department of Health Service Support has hastily issued a proposal for the surrogacy bill currently being drafted, suggesting a ban on surrogates who have no blood ties to the intended parents, in an attempt to prevent commercial surrogacy.
The buzz surrounding baby Gammy and the bizarre mystery of the Japanese man who fathered 15 children have expedited the process of forming legislation regarding surrogacy. But beyond these scandals, what has been lacking in our conversations are the fundamental reasons why commercial surrogacy should or should not be banned. There could be and are happy endings to the practice.
Various forms of surrogacy, as they stand, are exceedingly complex, in terms of ethics and practical legality. In these recent cases, disparity in the laws of different countries further complicates the situations. In Australia, altruistic surrogacy is legal, while commercial surrogacy is not. In Japan, as in countries such as France and Italy, any form of surrogacy is banned. In India, the only other Asian country where surrogacy is legal, reproductive tourism is estimated to be worth between US$500 million (16 billion baht) and $2.3 billion, according to a 2011 study published in Global Health. Everywhere, there are loopholes.
The root of the ethical dilemma is based on our understanding of the concept of pregnancy itself. As surrogacy becomes more and more prevalent around the globe,
a re-examination of traditional perceptions are called for.
Research tracing the history of surrogacy pointed out that, in fact, the first documented case of surrogate pregnancy occurs in the Bible. Today, pregnancy, beyond being a biological process, is seen as a social practice — being pregnant conventionally involves expecting a child, committing to taking care of that child and raising it for the foreseeable future.
To be a surrogate, literally, means to be a substitute. In commercial surrogacy, the surrogate provides a service, a physical labour, in exchange for money. It is a transaction. Every day, we pay for the services provided by others. Opponents of commercial surrogacy may claim the process is the commoditisation of female reproductive ability, that it puts a price on the act of pregnancy, violating the traditional view of the sacredness of motherhood. (But what is the rationale of this view?) The woman becomes an incubator.
Here, a woman can rent out her womb, as women have rented their vaginas since the dawn of time, with no emotional investment required. The analogy stands in terms of being paid for providing a service, despite the fact that the differences are countless. Being pregnant is nine-month-long, 24-hour-a-day, seven-day-a-week job. At the end, if all goes well, the surrogate will have provided an extraordinarily meaningful service to a couple, and may herself have money to put food on the table.
The analogy between commercial surrogacy and prostitution is effective in raising the important question about freedom of choice as to what we do with our bodies. It should be fundamentally up to any individual to decide their lifestyle choices, make their own judgements about what they think is right or wrong.
Sure, the two recent cases here present unequal bargaining power between the intended parents and the surrogate mothers. We can't help but read: "Rich Western couple take advantage of unfortunate Thai woman." Commercial surrogacy turns into a process of exploitation. A choice made in desperation is not
a real choice.
But this notion of exploitation is a result of poor infrastructure of a society that fails to provide other sources of income, fails to provide a more lucrative alternative to commercial surrogacy. Banning commercial surrogacy does not solve the problem of social inequality, of economic imbalance.
Protecting children conceived through surrogacy can easily approximate the process of assessing couples for adoption, before authorisation of the surrogacy. Standards can be set to safeguard every party involved, especially the resulting child.
Banning commercial surrogacy is paternalistic. It is taking the easiest way out in avoidance of tackling the real problems that lead to dreadful circumstances. Instead of restricting their autonomy, the government should be working towards ensuring that women of any economic standing are equipped to make well-informed choices — and that we have choices.
Pimrapee Thungkasemvathana is a writer for Life.