WOMBS FOR RENT; THE DARK SIDE OF SURROGACY

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‘A long time ago there were a king and queen who said every day, ‘Ah, if only we had a child….’

Thus begins the original tale of Sleeping Beauty, in which supernatural forces grant the King and Queen’s deepest desire, and cause a curse to befall them, all in the same breath.

Such is the fate that confronts many a couple, when biological reasons hinder them from having a child. You see, there is something profound in having children. It speaks to something deep within us, the incredible desire to create life, to pass on our stories, our love, our legacy. So much so that in the good book, God gives man an explicit command to ‘Go forth, be frutful, multiply and fill the earth’.[1]

But what happens when your body has other plans? It raises tough questions, doesn't it? Is having a child something we're entitled to, a fundamental right? Or is it one of life's precious gifts that some of us might have to find different ways to embrace? These questions touch the very core of what it means to be human, to dream of creating family, to long for that most intimate of human experiences.

That’s where surrogacy comes in- the ostensibly perfect solution. A woman carries a child for those who cannot. Sounds beautiful, doesn't it? A win-win arrangement where everyone gets what they want. Everything okay, everybody happy. Except, dear reader, it's not that simple. It never is.

The unfortunate reality is that whether presented in the guise of commercial contracts or the gentle veil of altruism, surrogacy is exploitation wearing different masks.

Well, what about willing participants with free, prior and informed consent? Consider, if you will, a case of commercial surrogacy. Here is how it works: a woman becomes pregnant with the intent of giving the child to someone else upon birth.[2] She is then reimbursed for medical expenses, and compensated for her service. Usually, fertility clinics act as an intermediary between surrogates and intending parents, and make profit off the transaction. Proponents of the school of thought that commercial surrogacy is not a violation of the right to dignity argue that, after all, fertility clinics in Australia charge thousands of dollars for their services . As such, to prevent individual women from charging  for the service of being a surrogate, when “big businesses” may charge large fees for other assisted reproductive services and to claim this is for the women’s benefit, seems to be the height of hypocrisy and paternalism.[3]  Advocates for commercial surrogacy argue that financial incentives alone do not compromise on informed consent and in fact, a lack of payment for surrogacy services could be exploitative.[4] In cases where women in poverty stricken situations choose to be paid to be a surrogate as a last resort, prohibiting them from doing so might further constrain their already limited options, forcing them to turn to less desirable alternatives.

Even so, we're essentially putting a price tag on a woman's womb. We're turning the miracle of life into a transaction, complete with terms and conditions. Is Commercial Surrogacy a violation of the right to dignity, or should women be left to use their bodies however they deem fit to earn a living?

Ideally people are allowed to use various parts of their bodies for example their hands to make ends meet and it is not categorized as a violation of their right to dignity. This then begs the question, why it would be termed a violation of this same right when women use their wombs for the same purposes. Is it a double standard or is there more to it than meets the eye?

However, looking at the practice from a different lens, it is an undisputable reality, and regrettably so, that surrogacy ‘hotspots’ have thrived in areas of economic depravity. This effectively renders hollow the claim that financial gain is not a motivating factor.[5] In fact, when gestational commercial surrogacy first became possible, some feminists expressed their fears that it would lead to the creation of a ‘sub-class of breeders’, women who would only be used as a means to an end, to bear children for other couples..[6] They argued that surrogacy is an option of last resort for financially desperate women and therefore takes advantage of their desperation.

In India, a major hub for surrogacy globally, before the ban on commercial surrogacy, women from impoverished backgrounds were lined up in "baby factories." Likewise, in Ukraine, before the war disrupted the industry, surrogacy agencies advertised women's reproductive capabilities like commodities. Is this really so different from the exploitation we condemn in other contexts? It's the ultimate expression of what philosopher Michael Sandel calls "market triumphalism" - the belief that everything can be bought and sold.

Altruistic surrogacy isn’t so different either. This is when a person carries a baby for another person or couple without receiving financial compensation.  When we dress exploitation in the clothes of compassion, does it become any less exploitative? Altruistic surrogacy often involves subtle coercion - family pressures, emotional manipulation, societal expectations. It's exploitation wearing a halo.

Think about it: Would a wealthy woman typically offer to be a surrogate for a less privileged family? The power dynamics at play reveal the inherent inequality in these arrangements. Remember the biblical story of Hagar, who bore a child for Abraham and Sarah? The biblical tale of surrogacy ended in exploitation and exile. Thousands of years later, we’re yet to learn the lessons and use it as a precautionary tale.

The language we use also tries to sanitize this reality. We speak of "gestational carriers" instead of women, "reproductive services" instead of pregnancy and birth, "compensation" instead of payment. George Orwell would have had a field day with this newspeak.

The ultimate consequence is that in our rush to fulfill adult desires, we've created a new category of children who are deliberately alienated from their birth mothers, their biological origins commodified before they even take their first breath.

Let's be clear: This isn't about judging those who yearn for children. That desire is profoundly human! But when did we decide that the right to have a child trumps the right not to be exploited? Are we, in our quest to give life, diminishing something fundamental about human dignity? The answer, in our considered view, lies in the tears of surrogate mothers separated from babies they've carried, in the complex psychological struggles of surrogate-born children, and in the transformation of sacred human experiences into market transactions.

What then shall we say about these things? Is the decision by a woman to become a surrogate mother for a commercial surrogacy arrangement an autonomous one or is it influenced by the prevailing circumstances? Sometimes, the most progressive thing we can do is to stop and say: This far, but no further. Some things should not be for sale. Least of all, the human womb! So, the next time someone speaks of surrogacy as a miracle of modern medicine, remember: Some miracles come with a price that can't be measured in shillings and cents. They cost us something far more precious, our humanity.

Article authored by Dickson Gitonga Mwebia and Edna Mwiti who are both third year students of law at the University of Nairobi. They are avid writers, legal researchers and two-time national and international moot court competition champions.

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[1] Genesis 1:28.

[2] Surrogacy, Law and Human Rights, ADF International (2022).

[3] Merryn Elizabeth Ekberg, “Ethical, Legal and Social Issues to Consider When Designing a Surrogacy Law (2014)

[4] The Petrie Flom Centre: Regulating International Commercial Surrogacy < https://petrieflom.law.harvard.edu/2024/03/18/regulating-international-commercial-surrogacy/ > last accessed on 17^th February

[5] Natalie Gamble, ‘Crossing the line: the legal and ethical problems of foreign surrogacy’, RBM Online 19,2 (2009

[6] Commercial surrogacy and the human right to autonomy (2015) 23 JLM 365.