Updated 03/11/2024
Surrogacy and prostitution share a number of common features, which are examined below: mechanisms, actors, beneficiaries, ethical issues, problems, legislative approaches, etc.
Exploitation
It is crucial to recognize the exploitation inherent in a woman being drawn to give birth to a child, not for her own parental project but for third party, just as it is in sexual relations that do not stem from her own desires.
The sexual and reproductive exploitation of women has become alarmingly normalized.
This industry has marketed and commodified human reproduction and sexual relations. To make it socially acceptable and to relieve the clients of any feeling of guilt, it has been framed as “care”, “sexual service” and “gestational service”, misleading it with personal service. In reality, both surrogacy and prostitution offer not a service but access to a woman’s body in exchange for financial compensation. This so-called “service” should be accurately described as exploitation—whether reproductive or sexual.
Violence against women.
Surrogacy should be recognized as a form of violence against women, who are exploited for their reproductive capabilities. This reproductive violence encompasses not only surrogacy but also the commercialization of oocytes, forced sterilization, forced abortion, and the lack of legal access to abortion.
Similarly, prostitution and pornography, which is often considered as filmed prostitution, must be viewed as forms of violence against women who are exploited for sexual purposes.
Financial transaction
In the context of surrogacy, surrogate mothers receive payment for becoming pregnant and giving birth to a child on behalf of clients. Various actors involved in this practice—brokers, agencies, clinics, and hospitals—also profit from this exploitation. When surrogacy is regulated and misrepresented as altruistic or ethical, payments to surrogate mothers are framed as “compensation,” limited to a list of approved expenses that vary significantly from one country to another. In contrast, there are no limits on the fees received by anyone other than the surrogate mother. Similarly, in prostitution, sexual acts are performed in exchange for payment, which is then distributed among various parties involved, including pimps and online platforms.
Commercialisation / commodification
The prevailing neoliberal ideology suggests that everything can be bought and sold, prioritizing the freedom to use one’s own body over the respect for individual dignity. This perspective ultimately reduces the freedom of certain women for the benefit of others, undermining the integrity and dignity of women who are treated as commodities. The commercialization of women’s and girls’ bodies has far-reaching implications, affecting all women who may one day find themselves in similar situations. Transactions that treat a person’s body as a commodity or service impact humanity as a whole.
Who are the beneficiaries?
The beneficiaries of these systems are predominantly men. In surrogacy, the demand hinges on the desire for a genetic link between the unborn child and a male client (the so-called intended father). This requirement raises several ethical questions; while the genetic connection through sperm is deemed essential, the genetic link through the egg is overlooked, as is the role of the surrogate mother. This perpetuates the patriarchal myth that the sperm alone creates the child, relegating the woman to the status of a mere vessel. Such demands reflect a preoccupation with patriarchal lineage and “blood bonds,” concepts that have historically contributed to the hierarchical structuring of society.
In the realm of prostitution, the vast majority of clients are men, while over 85% of victims are women or girls. Men, as clients, benefit from what they perceive as a “right of access to a woman for sex,” and as pimps, they profit from the sexual exploitation of these women.
Vulnerability
Social and economic vulnerability is a breeding ground for the recruitment of women to serve as surrogate mothers or prostitutes. The women who are exploited in these systems typically lack secure social and economic standing.
In the context of surrogacy, the stark economic disparity between clients and surrogates is evident. The compensation received often goes toward meeting the needs of the surrogate mother’s family, including her children’s housing and education, rather than addressing her own personal needs. Consequently, this financial support rarely enables her to escape her vulnerable situation.
Trafficking and mafia networks
In Europe, a staggering “96% of victims of sex trafficking are women and girls[i].” Surrogacy practices, particularly cross-border surrogacy and reproductive tourism are becoming increasingly commonplace.
As the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others[ii] emphasised, trafficking and prostitution are inseparable. Trafficking is part of the very logic of the prostitutional system. It is merely a channel through which it is fed[iii].
Surrogacy should be classified as a form of human trafficking. Brokers play a pivotal role in recruiting and selecting surrogates, and in some regions, organized crime groups are already investing in this lucrative industry. Trafficking, as defined by the Palermo Protocol[iv] and the revised EU Directive on trafficking[v], occurs when a woman is recruited and coerced into becoming a surrogate mother through deception. This deception is rooted in a threefold falsehood
- The belief that she is not the mother of the child she is about to give birth to, despite being responsible for the entire biological process of pregnancy and childbirth.
- The notion that the child is not hers, but belongs to the commissioning people, who seek to be recognized as the child’s parents because they “conceived” the idea, provided genetic material, and paid the necessary fees for the newborn and its parentage.
- The assurance that the child she has given birth to will not be sold, contradicting the principles outlined in Article 4 of the “Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption”[vi] which delineates the distinction between adoption and the sale of children.
For and against
Market-driven arguments are increasingly gaining traction in public and political discourse, often trivializing the exploitative nature of practices such as prostitution and surrogacy. It is essential to examine the perspectives of those who either support or oppose these practices.
- Proponents of prostitution often align with those who advocate for surrogacy. They utilize market-based arguments centered on individual autonomy to justify these practices as rights to control one’s own body and engage in paid services. They hijacked feminist principles that assert the inseparability of body and personhood under the slogan “our body, ourselves.” However, access to a woman’s body equates to access to a human being, and no one should have the right to claim access to another person—this is a fundamental principle of equality.
- – Opponents of surrogacy and prostitution share a unified ethical stance. They condemn the violation of human dignity that occurs when the human body is commodified, reducing individuals—both women and children in surrogacy—to mere objects or services. They argue that placing another person’s body on the market constitutes exploitation and a violation of fundamental rights.
Institutions complicit in reproductive exploitation
While there are many similarities between prostitution and surrogacy, the latter involves significant institutional support that facilitates its practice:
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- National Health Services. These should prioritize the health needs of the entire population rather than, as one journalist noted regarding South Africa «Can we continue to legitimise investment in cutting-edge technologies and five-star luxury fertility clinics when our reproductive health sector is riddled with systemic inequalities? Can we justify assisted reproductive technologies as essential when they continue to serve only a privileged few? »[i]
- Legal Professionals. Lawyers who draft surrogacy contracts or regulations often operate detached from issues of social justice, contributing to the normalization of this exploitative practice.
- Governments and Regulatory Bodies. Elected representatives and national regulators should prioritize the welfare of the people, not the market
These institutions bear significant responsibility for the proliferation of practices that contravene human rights, and it is imperative that they be held accountable for their roles in this exploitation.
[i] https://icat.un.org/sites/g/files/tmzbdl461/files/publications/icat-ib-04-v.1.pdf
[ii] https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-suppression-traffic-persons-and-exploitation
[iii] https://mouvementdunid.org/non-classe/traite-les-non-dits-d-un-consensus/
[iv] https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-prevent-suppress-and-punish-trafficking-persons
[v] https://eur-lex.europa.eu/eli/dir/2024/1712
[vi] https://assets.hcch.net/docs/8fefcb0a-9479-426e-9830-31827ed22c74.pdf
[i] https://mg.co.za/coronavirus-essentials/2020-05-22-ivf-surrogacy-south-africa-race-class/?fbclid=IwAR0Edv1KOJFNXchxoJEHrnLTw7AMHS3sHnGBmtlFFqeqIjhX2NrkWcTr2po