Commercial Surrogacy: An Opinion

Under the current legislation in Hong Kong, the issue of surrogacy remains complicated. Strictly speaking, surrogacy services are only accessible to married, heterosexual couples. In addition, commercial surrogacy is strictly forbidden for all citizens, with possible penalties including monetary fines and imprisonment.

Yet, in various other countries, the legality of commercial surrogacy is much different. Clearly, the issue of commercial surrogacy is highly controversial. As such, this article aims to discuss the intricacies of such reproductive service and address the ethical issues that may arise from its usage.

Without doubt, commercial surrogacy acts as an efficient gateway for families to raise children, especially for parents that are biologically unable to reproduce. This may include LGBTQ+ families as well as individuals that are biologically infertile. By providing families with increased parental opportunities and legal recognition, it reinforces an environment that reduces discrimination. Undoubtedly, it can also provide psychological relief for parents, as it places them on equal footing with their heterosexual and fertile counterparts. 

Some may argue that these benefits can be reaped without the legalization of commercial surrogacy, since adoption serves as another means by which families can raise children. However, especially among Asian populations, it appears that adoption itself is insufficient to satisfy the needs of parents. Considering the strong values of filialfamilial piety, many expect or want to establish a biological relationship with their children. As such, surrogacy serves as one of the few ways in which this can be achieved.

Another benefit of legalizing commercial surrogacy includes potential financial compensation for surrogates. This serves as another means by which biological women can increase their incomes. From a macroeconomic perspective, the establishment of surrogacy as a sunrise industry can stimulate economic growth. 

With that being said, exploitation is a major concern for commercial surrogacy. The potential financial benefit with such services creates opportunities for coercion, whereby vulnerable women could be forced to engage in surrogacy. As such, it is highly important and vital for legal frameworks to be established to prevent such happenings. Currently, in California, this is prevented through sections 7960 to 7962 (“Gestational Commercial Surrogacy Law in California”). Ethical frameworks must be firmly established and informed consent needs to be given for the procedure to occur. Moreover, there are strict biological guidelines that surrogates must meet to engage in commercial surrogacy, thereby protecting minors from potential abuse.

It should also be said that even if commercial surrogacy were not fully legalized, underground practices already occur. Therefore, rather than ignoring the industry entirely, governments should at least provide some form of legal protection for such vulnerable women by legalizing the process and adopting safety measures.

It is also important to address the issue from the perspective of the child. For example, after undergoing commercial surrogacy, the child may be faced with a multitude of issues relating to their identity. Does the child have the right to know how they were conceived? Should they address their surrogate as one of their parents? And does the surrogate have the right to be involved in the process of child-raising?

Despite these concerns, it shouldn’t fully undermine the process of commercial surrogacy, seeing as these issues will also be faced by families formed through non-traditional means, such as adoption. But it is still important to reduce the burden to children and their families. Currently, in the state of California, surrogacy agencies have offered counselling and emotional support services to support surrogates through the process (“Gestational Surrogacy Law in California”). However, perhaps, these agencies could extend services to children as well, or at least refer parents to relevant resources, seeing as they are most informed in the process of conception. 

More interestingly, perhaps what should be discussed is the distinction between traditional surrogacy and commercial surrogacy, whereby the former does not normally involve any financial transactions with the participants. This creates an argument against commercial surrogacy, whereby some view the service as a form of dehumanization, suggesting that it commodifies children. 

However, others argue that despite the monetary transactions, it does not objectify the child involved. Since the biological act is consensual between adults, it is suggested that the act of surrogacy is merely an extension of reproductive autonomy. Furthermore, using money as a means for transaction simply does not undermine the value of a product itself, as its importance often cannot be quantified.

Finally, the issue of commercial surrogacy becomes more complex if we further consider the legislation involved internationally. Due to the various laws across the globe, parental rights can often be unpredictable, evidenced by the case of Manji Yamada in 2008 (Manaptra). The child was born under surrogacy in India, but due to lack of governmental frameworks in the parents’ legal residence (Japan), the child was not granted citizenship. This left the child in legal limbo, creating a multitude of issues.

However, the lack of regulation should not be an argument against commercial surrogacy. Simply put, this suggests a lack of relevant governmental and legislative support provided to families and does not imply anything morally incorrect about the reproductive service itself.

Overall, while the issue of commercial surrogacy remains highly complex, I believe that it should be legalized, seeing as it provides families with a unique opportunity to raise children of their own and most of its ethical issues can be addressed through appropriate governmental policies. 

References:

1. Mahapatra,  “Baby Manji’s Case Throws up Need for Law on Surrogacy: India News - Times of India.” The Times of India, TOI, 25 Aug. 2008, timesofindia.indiatimes.com/india/baby-manjis-case-throws-up-need-for-law-on-surrogacy/articleshow/3400842.cms. 

2. “Gestational Surrogacy Law in California.” SurrogateFirst, surrogatefirst.com/pages/gestational-surrogacy-law-california. Accessed 31 Oct. 2023.