TIAN LE
田乐
Student Number：51272903034
A Utilitarian Opposition to Surrogacy
In this paper, I will articulate my objections to surrogacy (including both commercial
and altruistic surrogacy) from a utilitarian perspective. It is important to clarify that
while my views align with those of conservative opponents of surrogacy—specifically
in the belief that a woman's reproductive capacity is an inalienable right—my
opposition differs from that of conservative critics. My stance does not attribute the
moral wrongness of surrogacy to secular ethical or religious beliefs regarding the
sanctity of life, nor does it align with Kantian notions of human dignity. Rather, my
position is grounded in a utilitarian framework that considers consequences and overall
welfare.
In the following sections, I will draw upon Michael Sandel's example of "Baby M" from
his book Justice: What's the Right Thing to Do to further elucidate my objections to
surrogacy. The structure of this paper is divided into two parts: in the first part, I will
provide some background information, including an explanation of the concept of
surrogacy and my views on surrogacy practices; in the second part, I will present the
case of Baby M and discuss in detail my objections to surrogacy in relation to this
example, along with the relevant justifications.
I
Surrogacy
First, it is essential to focus on the definition of surrogacy. Surrogacy is generally
defined as an arrangement in which a woman (the surrogate) carries and gives birth to
a child for another person or couple (the intended parents), with the intention that the
child will be raised by the intended parents. 1
Given the proximity of ethical issues and legal norms (both discuss individual rights
and responsibilities), it is necessary to examine surrogacy as a moral issue within a
clearer and more regulated legal framework. At the beginning of this paper, I
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Student Number：51272903034
differentiate between two basic forms of surrogacy: commercial surrogacy and noncommercial (altruistic) surrogacy.
It is important to note that this distinction is not made based on whether the arrangement
is paid or unpaid, but rather on whether there is a clear contractual relationship involved.
The former is typically based on a well-defined contract, allowing for a clearer
discussion of rights and responsibilities in a legal sense. Therefore, I believe it is
necessary to initially focus the discussion on commercial surrogacy. Globally, different
countries and regions have varying legal regulations regarding the legitimacy of
commercial surrogacy. For instance, countries such as France, Germany, China, and
Italy explicitly prohibit commercial surrogacy, while in India, Ukraine, and certain
states in the United States, commercial surrogacy is permitted under specific
regulations.
Although there are national differences regarding the legality of commercial surrogacy,
its factual existence does not imply moral justification. I hold a thorough opposition to
commercial surrogacy itself. My objection is similar to Peter Singer's stance on the
rejection of the use of fetal tissue in a free market context; even if these actions may
appear beneficial from a utilitarian perspective, I do not support the commercialization
of surrogacy. Singer cites R.M. Titmuss's argument that when we choose between
altruistic and commercially-driven social policies, we are selecting between two
different types of society.2
While Peter Singer views the use of fetal tissue based on altruistic considerations as
acceptable, I argue that this perspective cannot be transferred to the discussion of
surrogacy due to the consideration of practical and historical factors. The metaphor of
a slippery slope can be applied to commercial surrogacy: today it concerns fetuses,
tomorrow it could be infants (I do not consider surrogacy as a “reproductive service,”
as this risks equating it with sex work; I prefer to view the baby as the object of the
surrogacy transaction), and the day after could involve organs, leading to a gradual
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Student Number：51272903034
degradation of the value of bodies and lives along this "slope" until it becomes
uncontrollable, where anything could be traded. If that is the case, who can guarantee
that they will not be swept into the frenzy of a free market?
Criticism of commercial surrogacy can also be found in the work of Elizabeth
Anderson.3 She notes that “commercial surrogacy indeed raises new ethical issues, as
it represents the market's invasion into a new realm of behavior, particularly concerning
women's reproductive activities. When women's reproductive actions are treated as
commodities, the women involved are devalued. Furthermore, commercial surrogacy
reduces the status of children to that of commodities, thereby diminishing the identity
of the child.” This results in the infant being treated as a mere object for the surrogate
mother’s profit, as well as a meticulously selected product for the intended parents to
fulfill their desires. It undermines the natural bond of love between parents and children,
as the parents no longer anticipate the birth of life out of love and respect, but rather
with a predetermined price even before birth.
The law can effectively regulate commercial surrogacy activities; however, whether
such regulations are necessary fundamentally depends on an ethical examination of
surrogacy itself. Scholars generally face the same core question regarding surrogacy: is
it ethically acceptable? Regardless of whether it is deemed acceptable or not, a reliable
ethical justification must be provided. The opposing sides in this debate are proponents
and opponents of surrogacy. I believe that these two factions cannot be distinctly
categorized based on specific ideologies. For example, some feminist scholars who
oppose abortion in the Roe v. Wade case also argue that surrogacy can be permitted as
a form of assisted reproduction, as it reflects women’s right to choose over their own
bodies.
Therefore, as an important perspective for considering the ethical issues surrounding
surrogacy, utilitarianism is variable in its stance due to its emphasis on consequences
and the desire to "ought to maximize the overall good.4" Here, I disagree with Sandel's
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Student Number：51272903034
view of utilitarianism, in which he suggests that proponents of surrogacy are
represented by libertarianism and utilitarianism. This assessment may stem from his
belief that utilitarianism would view surrogacy as a means to increase overall welfare.
However, I argue that utilitarianism can both support surrogacy as a neutral
technological means to fulfill the reproductive desires of infertile couples and reject it
from the perspective of the potential harms to the rights of women and infants, as well
as the possible slippery slope effects that could lead to structural oppression and
injustice.
Next, I will discuss the case of Baby M to present my negative viewpoint on surrogacy
from a utilitarian perspective.
II Baby M
William and Elizabeth are a couple who wish to have a child but are unable to conceive,
as doing so would pose a life-threatening risk to Elizabeth due to her multiple sclerosis.
They contact a fertility center that arranges surrogacy, which advertises for "surrogate
mothers"—women willing to become pregnant and give birth for others in exchange for
compensation.
Among the applicants is a 29-year-old woman named Mary, who works as a cleaner. She
agrees to artificial insemination using William's sperm, to carry the child, and to
relinquish the child to William after birth, for which they sign a contract. She also agrees
to give up her parental rights so that Elizabeth can adopt the child. In exchange, William
offers to pay Mary $10,000 plus medical expenses.
After several attempts at artificial insemination, Mary becomes pregnant and gives birth
to a baby girl in March 1986. The couple eagerly anticipates adopting their daughter;
however, Mary changes her mind and does not want to give up the child, subsequently
fleeing to Florida with the baby. The couple obtains a court order requiring her to
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surrender the child. Florida police locate Mary and return the child to William and
Elizabeth, leading to a custody battle in New Jersey courts.
The trial judge, Harvey, presented two opinions in the initial ruling. First, he invoked the
sanctity of contracts to uphold the agreement, arguing that a transaction is a transaction,
and the surrogate mother does not have the right to rescind the contract simply because
she changed her mind. Furthermore, he asserted that there was no coercion between the
parties; neither party held a superior bargaining position, and there was no
disproportionate bargaining power involved, thus there were no elements of injustice.
Secondly, he countered the notion that surrogacy equates to the sale of a baby. The judge
maintained that William is the biological father of the child and did not purchase the
baby from Mary. He merely compensated her for the service of carrying and delivering
the child. “After birth, this father did not buy the child; she is a child connected to his
own biological genes. He cannot purchase something that already belongs to him.” Since
the child was conceived using William’s sperm, she was his child from the outset.
Therefore, the issue of baby selling was not applicable. The $10,000 compensation was
for a service (pregnancy) rather than a product (the child).
Regarding the view that providing such services exploits women, Judge Harvey also raised
objections. He compared paid surrogacy to compensated sperm donation. Just as men
can sell their sperm, women should be able to sell their reproductive capacity: “If a man
can provide the means for reproduction, then society must equally allow women to do
so.” He argued that opposing this view denies women equal protection under the law.5
(I note that this example is excerpted from other materials and does not count toward
my paper's content.)
I believe there are several unreasonable aspects in Judge Harvey’s defense.
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In his first rebuttal, Harvey discussed the conditions for the formation of the transaction
and the responsibilities of the parties involved solely from a legal debt perspective,
determining that Mary is obliged to return the child to William because it is a legally
valid contract. One party has reason to hold the other accountable. However, legal
formality does not imply legal legitimacy, nor does it provide a reasonable moral basis.
The interests of the parties involved, when considered morally, often extend beyond
legal stipulations. Being deemed at fault or illegal in law does not equate to moral fault
or guilt. While acknowledging the close relationship between law and morality, we
must also recognize that morality, as the natural foundation of law, encompasses greater
origin and value. Therefore, from a utilitarian perspective, considerations of Judge
Harvey’s ruling should not be limited to a simple calculation of legal responsibility;
rather, they should involve a moral assessment of the contractual relationship, as this
provides a more valuable judgment.
Moreover, Harvey’s ruling does not accurately reflect his claim that “neither party held
a superior bargaining position, nor did either party possess disproportionate bargaining
power.” The high-income William and Elizabeth could purchase Mary’s reproductive
capabilities, which inherently implies an inequality of economic rights. The affluent
can buy the rights, bodies, and even the life value of the poor through the payment of
certain general equivalents, revealing an alienation rooted in structural oppression. Is it
not worse for a Roman slave owner to sell the entire labor and life value of slaves to
nobles than for the slaves themselves to sell their labor and life value?
If we argue that the slaves sold their entire value voluntarily, I will refer to an example
from ancient China regarding filial piety: if a poor family's child encounters the
unexpected death of their parents, in order to raise funds for the funeral (influenced by
Confucian values that emphasize filial duty and the importance of funerary rites), they
may voluntarily sell themselves into slavery to a wealthy family. Should we then
believe that this voluntary action absolves the wealthy of moral responsibility? Even in
modern contexts, where we can impose more detailed regulations on voluntary
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choices—such as ensuring that the individual is not subjected to excessive coercion and
fully understands their options—I argue that the voluntariness of certain actions cannot
obscure the inherent injustice of their outcomes. Surrogacy is among these issues.
In his second rebuttal, Harvey argues that the father did not purchase the child; she is a
child connected to his biological genes, and he cannot buy something that already
belongs to him. This perspective treats the child as property of her biological parents
and raises significant moral concerns. The reasoning is similar to my previous
objections. If we accept the view that buying and selling slaves is wrong because the
act itself is wrong and slaves are human beings, we can understand why discussing
infants in terms of commodities and ownership is erroneous. This argument is
connected to the discussion of the unique value of human beings, which is a
metaphysical foundation sought by surrogacy opponents.
I choose to use the term "unique value" rather than "sacredness" or "human dignity" to
intentionally separate it from traditional religious views and the Kantian perspective of
“humanity as an end.” This does not imply that I reject the definitions of human value
offered by these two perspectives. However, from a future-oriented viewpoint, we can
consider the technical possibility of gestating a child outside of the mother’s body.
Could this advancement contribute to gender equality and improve healthcare? If the
answer is affirmative, then this hypothesis could be seen as successful from a utilitarian
perspective, as such technology could enhance the well-being of existing individuals,
especially women who have historically occupied a subordinate status in society.
However, if we invoke the special value of humans as stemming from an innate source,
it undoubtedly raises concerns about undermining natural human value and the natural
love parents have for their children.
This outlandish notion is similar to the case of surrogacy in that both involve the use of
technology to extend life, diverging from traditional notions of natural reproduction.
My opposition to surrogacy under any conditions stems from my belief that the benefits
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of extending life are outweighed by the necessity of protecting the rights of existing
vulnerable populations. Even voluntary surrogacy activities are unlikely to eliminate
the impacts of structural injustices. I support the idea of gestating outside of the human
body (for instance, using a simulated womb) because it does not rely on a foundation
that could easily lead to the commodification of rights, bodies, and values. Instead, it
challenges the inherent basis for human rights and dignity in traditional views,
potentially shaking the principles that underpin moral foundations.
I believe that in the context of rapid technological advancement and scientific progress,
we must recognize that morality is not a static definition. The exploration of morality
responds to the demand for establishing new ethical norms. In this regard, I argue that
utilitarianism, by stepping beyond traditional natural orders as moral justifications,
possesses a more flexible adaptability.
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TIAN LE
田乐
Student Number：51272903034
Works Cited
[1]American Society for Reproductive Medicine. (2013). "Guidelines for the ethical
practice of reproductive medicine."
[2] PETER SINGER.Practical ethics[M].New York:Cam-brige University Press,1979.
[3]ANDERSON
E
S.Is
Women's
Labor
a
Commodity[J].Philos
Public
Aff,1990,19(1):71-92.
[4]Driver, Julia, "The History of Utilitarianism", The Stanford Encyclopedia of
Philosophy (Winter 2022 Edition), Edward N. Zalta & Uri Nodelman (eds.), URL =
<https://plato.stanford.edu/archives/win2022/entries/utilitarianism-history/>.
[5]SANDEL
M
J.Justice:What's
the
York:Farrar,Straus,and Giroux,2010:160-170.
9
Right
Thing
to
Do[M].New
TIAN LE
田乐
Student Number：51272903034
Some notes on this assignment
Due to the very tight time frame for writing this article, it made it too late for me to
write in English, so I used translation software directly, but due to the peculiarities of
the language of philosophy, I'm worried that there may be some elements in it that may
affect comprehension, so please feel free to reach out to me on WeChat if you have any
questions!
Also, in the original planning, I had a third part planned, which was to try to go over
possible objections against my views, and I took into account the question that there
might be some pro-surrogacy feminists who think that my position might infringe on a
woman's right to dominate her own body, but I'm not sure that I'll be able to answer that
question very well,
if you think it's necessary, I'll be in a revised version of the article
to add this part.
I apologize for the fact that I exceeding the word limit for my assignments, I always
have a hard time controlling my exposition and I'm a lousy headline writer, so if you
don't think the categorization of the subheadings of my articles is clear enough (and I
think its very bad myself ), could you please give me some advice on categorizing the
headings? I would really appreciate it!
*Translate By Chatgpt
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