Reframing the Surrogacy Debate

If compensated surrogacy is legal, compensated organ donation should be too

I had never really thought about the ethics of compensated surrogacy until a couple of years ago, when Dave Rubin and his husband announced that they were expecting two babies via surrogates. The reason I had never really thought about it is because in Canada, the UK and most of the rest of the world, compensated surrogacy continues to be illegal. The US on the other hand allows compensated surrogacy in most states, making it an outlier among developed nations. I support legal compensated surrogacy because I think it’s very clearly net-positive as well as pro-liberty. I’m not going to spend any time on anti-surrogacy arguments that rest on the apparent concern for the quality of life of potential babies because they seem to be motivated more by disgust than by convincing empirical evidence and as such are not productively dealt with through appeals to evidence. However, I think the debate is poorly framed and often find the exasperation of others in my ideological sphere confusing.

I initially saw the ethics of surrogacy through a similar lens as the ethics of sex work given that many feminists have traditionally opposed both for the same core reasons: that they result in the exploitation and commodification of women’s bodies. While I admittedly bristle at attempts to frame sex work as an “empowering act of resistance” I see no reason why it should be illegal. The risks of exploitation and physical or psychological damage to workers exist in all industries. And these risks are so high for sex workers largely as a result of criminalization. However, while sex work can reasonably be conceptualized as just another category of paid labor, albeit one that comes with unique psychological and physical safety concerns, surrogacy cannot.

Surrogacy involves pregnancy, and pregnancy really doesn’t fit in the regular paid labor category because you’re never “off the clock”, your body is working to grow a baby for the intended parents 24/7. “Quitting” is only possible if the surrogate mother gets an abortion, which is far from a trivial barrier to exit. It also involves childbirth which, in the US, carries a risk of roughly 2-3 deaths per 10,000 births along with many other potential complications.

On top of that, what should and should not be enforceable in a surrogacy contract yields real ethical problems since these contracts often include requirements which conflict with the bodily autonomy of the surrogate mother as well as with her right to privacy. In states that allow surrogacy contracts, they’ll often include a stipulation that the surrogate mother will not terminate the pregnancy unless it’s been deemed necessary for her health. What recourse an intended parent would have if their surrogate mother decided to abort for other reasons is legally and morally messy. A couple in New Zealand spoke out publicly after their surrogate mother aborted their genetic fetus without informing them. On the other hand, these contracts may also include stipulations that the surrogate will abort at the direction of the intending parents if the fetus is developing abnormally or through “selective reduction” in the case of multiple pregnancies. Cases where surrogate mothers want to continue these pregnancies have resulted in at least a couple of legal battles.

The reality of what pregnancy and childbirth mean for the body in addition to the largely undecided legal and ethical questions that arise when surrogates and intended parents disagree puts surrogacy in a different class than regular labor or sex work. Instead, I think the correct parallel to draw is to compensated organ donation. Organ donation also comes with a risk of death (kidney donation has a similar risk of death to childbirth), significant recovery time and permanent changes to the body. This feminist also draws the surrogacy-organ parallel, stating that “surrogacy agreements should be regulated under the same terms as organ donation”. But while she uses that parallel to argue that compensated surrogacy should be illegal, I instead take it as an argument that compensated organ donation should be legal.

I support legal, compensated organ donation for roughly the same reasons that I support legal compensated surrogacy: it’s very clearly net positive as well as pro-liberty. And it might also be quite a lot more net positive than surrogacy.

The number of babies born via surrogates per year is only ~3,000, most of which are likely marginal babies (i.e. they wouldn’t have been born any other way). This could grow, but given the expense required to compensate a surrogate it’ll always be a relatively small market. Plus, we should really only count compensated surrogacies since we’re comparing to the potential impact of allowing compensated organ donation. Unfortunately, I couldn’t find data on the percentage of altruistic vs. compensated surrogacies so we’ll just assume they’re all compensated. Assuming these babies will live 80 years on average, that values legal compensated surrogacy in the US at 240,000 life years per year.

On the other hand, a 2018 paper estimates that kidney shortages lead to the premature death of ~40,000 Americans per year. That same paper states that “…under the current system in which compensation of kidney donors is prohibited, each transplant saves taxpayers about $146,000, because the total lifetime cost for treating a transplant patient is far less than the lifetime cost for a patient receiving dialysis therapy, and the government accounts for most of the spending on both.” I’ll assume that transplants would extend the life of recipients by 10 years on average (but please comment if you have a good estimate for this!). That values ending the kidney shortage at 400,000 life-years per year, and that’s only from kidneys!

Plus organ donation doesn’t come with “concerns” for the welfare of babies that can be used to express thinly veiled homophobia! Yet, as Scott Alexander saw in the comments on his post about donating his kidney, even when it’s done altruistically, some people object on the basis that “bodily integrity has a value in and of itself, independent of any utilitarian calculation”. The “bodily integrity is important just because” argument may help you justify why you don’t want to donate an organ, but it’s certainly not strong enough to use in order to limit the freedom of others and this is the norm that we need to get rid of.

People have already started to get comfortable with compensated surrogacy, and while the right-wing opposition will likely continue it’s a minority opinion while opposition to compensated organ donation is the default outside of very libertarian circles. I think that opposition to surrogacy is wrong but given the parallels to organ donation I don’t find it remotely surprising. Ultimately, I think surrogacy is great, but organ markets are at least as important. Perhaps the increasing comfort with legal compensated surrogacy can form the wedge to start a real conversation about legalizing compensated organ donation.