When giving in is not consent
This factsheet delves into the concept of consent and is essential to remind us of the reality surrounding practices and the role of surrogates, who are the most deeply involved in surrogacy. The consent argument is employed by neoliberal and pro-surrogacy advocates to justify women’s freedom to engage in this practice and to neutralize any scrutiny of the conditions under which contracts are signed. We will, therefore, explore who truly holds decision-making power in these contracts and what hidden realities and conditions exist.
SURROGACY UNDER CONTRACT LAW
Supporters of surrogacy often emphasize the consent of surrogate mothers, their ability to make choices about their bodies, and their individual autonomy in decision-making. This argument primarily considers consent from a social perspective, framing it as a sign of evolving attitudes and liberal principles that grant women freedoms, which they did not have decades ago. In this perspective, it is the clients who speak on behalf of women, not the women themselves.
In the context of surrogacy, consent is primarily a legal matter and becomes crucial when the commercial contract between the surrogate and her clients is signed. To assess the contract’s legality, two aspects need examination: the contract’s purpose and the consent required from the surrogate mother to endorse it.
Is the Contract’s Purpose Valid?
The law applies to commercial contracts, and it is important to emphasize the commercial aspect: “This contract, based on the consent of both parties, legitimizes the right to use the other and her body as one would use an object.” [1]Neither the surrogate mother, who carries a child for nine months, nor the child, who is given to the commissioning parents, should be considered objects. Human beings cannot be treated as objects, just as they cannot dispose of themselves or others. Therefore, the legality of surrogacy contracts’ purposes is questionable. Lawyers have created a legal fiction to sidestep this issue, describing the contract as related to ‘gestation of supply’ rather than the delivery of a child. However, without the birth of a child, there is no incentive for the contract.
Additionally, many surrogacy contracts examined feature clauses that heavily favor the commissioning parents, making them unfairly one-sided or “leonine.”
Is consent genuine and Informed?
– Is the surrogate’s consent valid?
The consent of the parties is a critical requirement for the validity of a contract. According to French law, consent must be freely given, fully informed and genuine[2] otherwise, the contract is deemed null and void. The contract’s validity can be challenged on three grounds: error, which involves a misrepresentation of reality; fraud, a deliberate deception aimed at inducing the other party to agree to the contract; and force, which entails physical or moral coercion to secure the contract’s signature.
The surrogate cannot provide informed consent if she cannot foresee the experiences she will undergo during her pregnancy, childbirth, and postnatal period. Many risks may be concealed at the time of contract signing but may emerge during the medicalized stages of surrogacy. It is crucial to bear in mind that surrogacy is not without risks and complications. For instance, “hemorrhage during childbirth remains one of the most dreaded complications and, despite medical interventions, can lead to maternal mortality.” During pregnancy, various medical situations may arise, necessitating urgent decisions made in consultation with medical professionals. These decisions include considerations like the possibility of reducing the number of embryos in cases of multiple pregnancies, whether to continue or discontinue intensive care for very premature births or acute fetal distress during delivery, deciding on medical abortion, or continuing the pregnancy in the event of malformations detected through ultrasound, some of which may or may not be operable. The question arises: who has the authority to make these decisions—the surrogate or the commissioning parents? In this context, the risks for the child are substantial as well. For instance, in 2014, there was a case of twin pregnancy (the “Gammy” case) in which one of the two children was diagnosed with trisomy 21, and the mother chose to continue the pregnancy despite the prenatal diagnosis. The child’s vulnerability led the mother to protect and decide to carry him to term. At birth, the commissioning parents opted to retain only one of the twins, the one without disabilities, and entrusted the other to the surrogate. In this case as well, the timeline of the pregnancy and the reproductive risks altered the initial contract intended for a planned child.
Furthermore, there are instances of contracts being drafted in a language the surrogate mother does not understand, as was the case in India, where contracts were written in English.”
– Assuming that informed consent is possible, is it distorted by economic necessity?
The reality of the market reveals a significant increase in the number of thriving agencies offering gestational carrier services. According to CCNE Opinion 110, “In all countries that have legalized surrogacy, it has been observed that the parents come from a higher social class than the surrogate mother”[3]. This observation, which reflects a reproduction of class dominance, underscores the notion that “giving in is not consent”[4] through a dual narrative:
- Socio-economic narrative[5]: “It’s not merely because a woman who agrees to bear another man’s child lacks understanding or is necessarily being dominated, alienated, or coerced that we should consider her consent. It’s because, in practice, the risk of an illusion is too great. An Indian woman may choose to repeat the experience to provide an education for her child, giving them a roof over their head thanks to her first surrogate pregnancy. How can we not be disturbed by the contrast between her poverty and the numerous constraints influencing her choice, in comparison to the relative affluence of the commissioning couple?” (Hennette-Vauchez, 2012). The legalization of surrogacy can be perceived as endorsing the idea that everything can be bought and rented under the auspices of the “neoliberal fiction” of consent, without adequately considering the socio-economic constraints that can undermine it.
- Cultural narrative: Can the strictest regulations, which demand that surrogacy be altruistic, performed solely within the context of family or friends, and that consent be verified, effectively shield against the inevitable pressures that might be exerted on a sister, a cousin, or an employee who happens to have a functioning uterus?
Surrogacy, fundamentally built on the utilization of women’s bodies and reproductive functions for others, cannot be viewed as genuinely disinterested and respectful of free consent within a world marked by inequality and economic exploitation.
Allow us to cite Carol Pateman[6], who contends that consent is not a criterion of legitimacy when the contract itself represents a system of sexual exploitation, as she argues in the case of marriage contracts, prostitution contracts, and surrogacy contracts.
In surrogacy, surrogate mothers seemingly ‘consent’ to accept the consequences of conceiving a child for someone else. However, this form of commercial consent distorts the principles of contractual practice, as it often lacks genuine reciprocity and obligations. Unless significant societal changes occur, it will continue to be women and those most affected who are asked to provide their consent. In this scenario, consent is ‘given’ by the surrogate mother for the benefit of the commissioning parents.
Advocating for Human Dignity
Consenting to carry an embryo and give birth on behalf of another person equates to consenting to the transfer and disposal of an unborn human being. This rationale fundamentally contradicts the consent argument often advanced by pro-surrogacy advocates. It is inconceivable to grant consent to something—or in this instance, someone, a human being with rights—that does not and cannot rightfully belong to us. In France, the law underscores this principle in Article 16 of the Civil Code, which states: “The law upholds the primacy of the individual, prohibits any assault on their dignity, and guarantees respect for the human being from the very start of their life.” Article 16-1 further declares: “Everyone has the right to the respect of their body. The human body is inviolable. The human body, its components, and its products cannot be subject to property rights.”
Even if an individual woman opts to become a surrogate mother, even if she is only partially informed (since full informed consent is unattainable), motivated by economic necessity, and accepts societal hierarchies, these factors cannot, under any circumstances, justify the practice, as it constitutes an affront to human dignity. The argument of consent, often seen as the contemporary legal symbol of individualism and liberalism[7], has the potential to dismantle all barriers and legitimize any conduct. Dignity asserts the preeminence of the human being over any other consideration, and the human person’s worth supersedes any other rationale for restriction.
In 1995, in the case of “dwarf throwing,” this practice was banned in the name of dignity. The primary objective was not solely to safeguard the dwarf from the abuse he had endured—keeping in mind that this individual was contesting the ban, believing it deprived him of an economic opportunity—nor was it aimed at the entire dwarf population. Instead, it focused on the broader humanity within our society, guided by the paramount importance of human dignity.
The concept of consent, often perceived as the embodiment of individual freedom, influenced by neoliberal ideology, fractures the unity of the human body, reducing it to mere components at the mercy of others’ desires. As M.A. Frison-Roche reminds us, “the philosophical question of this century revolves around consent, as it is through consent that individuals accept that they are no longer indivisible entities immune to disassembly. Instead, they become sets of functionalities from which others can draw advantage through the intersection of interests.”[8]This effectively encapsulates the disembodiment of the person itself through contract law and the provision of services, whereby bodies (individuals) become instruments of service at the disposal of others.
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This factsheet enables us to critically examine the liberal argument of consent, frequently employed to legitimize surrogacy contracts signed by surrogate mothers in the name of their individual freedom.
Furthermore, it becomes evident that consent cannot be morally justified when it is utilized in a practice that exploits individuals and runs counter to human dignity, regardless of any agreements or arrangements made with individuals considered ‘consenting.’
In the realm of surrogate motherhood, the companies that promote this practice aim to eliminate the commodification of women and children by framing it as the provision of ‘services.’ Consequently, clients effectively purchase “pregnancy services,” in which the term “pregnancy” is obscured, and in the process, the woman herself is marginalized.
[1] Salvat Christophe, « L’éthique à l’épreuve de la Gestation pour autrui (GPA) », Raison publique, vol. 23, no. 1, 2018, p. 165
[2] Tourame Pierre, « Quelle liberté pour la mère porteuse ? », Les Cahiers de la Justice, vol. 2, no. 2, 2016, p. 283
[3] URL : <https://www.ccne-ethique.fr/sites/default/files/2021-02/avis_110.pdf>, p. 10
[4] Falquet, Jules. « Pour une anatomie des classes de sexe : Nicole-Claude Mathieu ou la conscience des opprimé·e·s », Cahiers du Genre, vol. 50, no. 1, 2011, p. 206
Publié en 1985 dans L’arraisonnement des femmes (1985a) et repris dans L’anatomie politique (1991)
[5] Roman, Diane. « La gestation pour autrui, un débat féministe ? », Travail, genre et sociétés, vol. 28, no. 2, 2012, p. 196
[6] Carol Pateman, The Sexual Contract, Stanford, Stanford University Press.
[7] Fabre-Magnan, Muriel. « La dignité en Droit : un axiome », Revue interdisciplinaire d’études juridiques, vol. 58, no. 1, 2007, p. 6
[8] Frison-Roche, Marie-Anne. « Pour protéger les êtres humains, l’impératif éthique de la notion juridique de personne », Archives de philosophie du droit, vol. 60, no. 1, 2018, p. 366