Perspectives on Surrogacy

Tuesday, February 28, 2017

In December of 2017 the Greenberg Chair in Women and the Legal Profession held a panel on surrogacy, where several prominent feminist lawyers and academics discussed their perspectives. A large number of University of Ottawa Faculty of Law students attended the event, and many blogged about it as part of an assignment in first year property law. Over the next few weeks this space will feature the diverse opinions of a number of our students.

In May 2017 uOttawa law Profs Angela Cameron and Vanessa Gruben along with their colleague Alana Cattapan of Dalhousie University will host a two-day workshop on the law and policy of surrogacy in Canada featuring national and international experts. Several uOttawa law students will participate in this event, and we will post their reactions to the workshop here.


Raven Schofield

1-800-RENT-A-WOMB: Evaluating the Effects of Commercialized Surrogacy

There are always two sides to every story, and surrogacy is not exempt from this rule. On one hand, many, such as family and fertility lawyer Erin Lepine and family and equality rights lawyer Pam MacEachern, argue that commercialized surrogacy unfairly targets those who are economically depressed, or oppressed minority groups who resort to surrogacy services as a way to provide for themselves and their families. On the other side, individuals such as Professor of Global Health and Social Medicine, Bronwyn Parry, argue that, while it can be, surrogacy is not always inherently or exceptionally exploitative and the commodification of other forms of affective labour already exists. The question then becomes, is the commodification of maternal labour any different than all other forms of compensated labour? Should the spheres of intimate relations and economic activity continue to operate in separate domains? I am inclined to answer these questions in the affirmative.

The Canadian federal government passed the Assisted Human Reproduction Act (AHRA) in 2004, which states that “no person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.” The rationale for allowing only altruistic surrogacies to operate in Canada is rooted in a desire to protect Canadian women from being unnecessarily objectified and exploited. That is, that many low-income women would result to providing surrogacy services out of economic necessity, and not out of an inherent desire to provide these services. However, since the enactment of the AHRA, many feminists have struggled with the AHRA’s capabilities in balancing women’s rights to their bodies, their autonomy to choose, their freedom from exploitation, and the rights of same-sex couples to reproduce. Thus, the debate of commercialized versus altruistic surrogacy continues on.

Sara Cohen, a Canadian fertility law lawyer, argues that the AHRA is paternalistic and offensive, as most women acting as surrogates are altruistic, self-sufficient and independent thinkers, and not the helpless, marginalized women the AHRA and thus the federal government has painted these women out to be. However, Professor Somerville from McGill’s Faculty of Law holds that the commercialization of surrogacy violates women’s rights and leads to the commodification and exploitation of underprivileged women’s bodies, who often are unable to give informed consent. Since commercialized surrogacy is such a complicated and contentious issue, similar arguments continue to exist in multitudes on both sides of the debate. However, as previously alluded to, I am against the commercialization of women’s bodies through surrogacy.

Many men, women, and same sex couples struggle with fertility issues on a daily basis. While being childless is a heartbreaking outcome for many couples, a woman’s rights to human dignity and protection from commodification of her body vastly outweighs a couple’s rights to a child. In fact, I do not even believe having a child is a guaranteed right. The unpleasant effects of commercialized surrogacy have already reared their heads in countries which have legalized payment for these services. The Akanksha Clinic in Gujarat, India is comprised of ten to fifteen surrogate mothers, living in one room together within the clinic for a majority of their pregnancy. The clinic even advertises surrogacy to women as a good means to earn money for their child’s education or to purchase a house, preying on their weak financial positions and social vulnerability.

Women are already more likely to be or become impoverished than men are, and minority and racialized women are at even more of an economic disadvantage than that of white women. The commercialization of surrogacy would disproportionally target marginalized women and create a tier of second-class citizenry, furthering the economic and racial divide in Canada. Furthermore, the surrogate mother will always be in a lower bargaining position than the adopting parents and, even though she is being compensated for her labour, is still at further risk for exploitation and providing uninformed consent.

While the current model of altruistic surrogacy in Canada is not free of difficulties—for example, the definition of what counts as a receiptable expense is still contested—the commercialization of surrogacy services poses much greater complications. Simply because the payment for surrogacy services is not always exploitative, does not mean that it should not be regulated or banned. There are many activities which are not inherently dangerous, or not abused by the general public, however, because of instances where individuals have created a danger to themselves or others in performing those activities, the government has chosen to regulate them. This justification is no different when applied to surrogacy. While women should be free to choose how they use or consent to the use of their bodies, Canadian laws must protect those women who are unable to give informed consent or make an autonomous choice due to lack of options and financial insecurity. Currently, the only way to protect against this exploitation is through the complete ban of commercialized surrogacy.

Raven Schofield is a first year law student from Brantford, ON and is interested in pursuing a career in criminal law. 

Heather Cross

Leaving the ‘Dignity of Womanhood’ to Women: Protecting a Surrogate’s Interests Without Limiting her Agency

In 2015, the Indian Supreme Court questioned the government’s position on the “Assisted Reproductive Technology Bill” released by the Ministry of Health and Family Welfare. Among a variety of ethical, legal, and socio-economic questions, the Supreme Court asked whether commercial surrogacy is “inconsistent with the dignity of womanhood.” This notion draws  parallels to the implications seen in Canada’s own Assisted Human Reproduction Act (AHRA), where the principle of banning commercial surrogacy is justified because it protects against health and ethical concerns that may arise through the commercialization and exploitation of reproductive capabilities (s.2(f)). While some may perceive it as inherent exploitation, the AHRA, in its current form, limits the agency that women have in exercising their rights over their reproductive choices.

By defining, and prohibiting, acts that do not uphold the dignity of women, the choice of what is considered “dignified” is no longer left to the person whose dignity the law is trying to defend. The statute assumingly suggests in what capacity a woman can use her reproductive capabilities. More specifically, that it is not in a woman’s best interest to use her body in an economic capacity due to the inherent exploitation she may suffer in performing surrogacy labour. By prohibiting a commercial value to be drawn from the work, the legislature is deciding what women are allowed and not allowed to do with their bodies, for their “own good.”

Canada’s desire to limit surrogacy to an altruistic deed strips a woman of her corporeal agency and implies that women do not always know what is best for them. In a recent panel discussion on the issues of surrogacy, Bronwyn Parry discussed the notion of “philanthropic labour.” She brings agency into the equation by discussing the motivations that underlie the choices surrogates often make. Parry suggests that the assumption of exploitation strips surrogates of their ability to be social benefactors for another human being.

In her article, “Mutual exploitation, Beth Jones argues that there exists a desirable level of mutual exploitation in the relationship between the surrogate and intended-parents. She states that in her experience, “any construed exploitation done against [her] was equally matched” by what she gained from the process. This does not necessarily mean that women always benefit from their surrogacy situations; however, it also does not translate into inherent exploitation in all surrogacy agreements. Studies conducted in the United States and Great Britain, where commercial surrogacy is legal, reveal no evidence indicating that women are being pressured or forced into surrogacy. There is also no evidence of women agreeing to become surrogates due to financial distress.      
Darren Rosenblum, a law professor at Yale University, published an article in which he uses his personal experience with surrogacy to summarize the benefits and drawbacks of using a surrogate. He addresses the concern of exploitation by stating that it is economic fragility that leaves women vulnerable to exploitation, not the nature of the surrogate work. Furthermore, he postulates that the argument of potential class exploitation is no truer for surrogacy than it would be for other forms of laboured work. Similarly, Parry suggests that it is the “mechanics of the practice” that create space for exploitation, not the principle behind surrogacy itself. She suggests that the harm stems from the lack of regulation, rather than the nature of the labour.                 
In its current form, the AHRA only permits surrogates to use their reproductive capabilities in an altruistic manner, with very little protection afforded to the surrogate mother. Stronger regulation of the process and expectations of each party would increase the protection offered by the AHRA. Rather than protecting a surrogate’s “dignity” by banning commercial surrogacy altogether, more stringent regulations would potentially protect, without overly limiting, a woman’s agency in using her reproductive capabilities.

Heather Cross is a first year law student at the University of Ottawa in the common law program. She is from Montreal, Quebec and hopes to pursue a career in international commercial law.

uOttawa law students solidarity event Wed. Feb. 8th

Saturday, February 4, 2017

Solidarity event

Alex Trebeck Hall, University of Ottawa, 5:30 pm to 8 pm

On Wednesday, February 8th, students, professors, and staff will join together for a night of solidarity in response to the Quebec City Mosque Shooting and the Immigration Ban south of the border. UOttawa law is home to people of all cultures, religions, and identities, which we commit to protecting and respecting every day. This event is meant to inform participants of the different issues and consequences of these events in a safe environment. This event is an official launch of several solidarity initiatives UOttawa student organizations have been planning since our return from the break. 

We are also setting up a donation booth; all proceeds will go to the Quebec Islamic Cultural Centre and the International Refugee Assistance Project. We will have laptops set up in case you would like to donate with with a credit/debit card.

* Introductory Remarks
* Group huddles or break-out sessions with specific professors and students aimed to generate discussion around particular issues arising from these events
* Musical performances from our professors
Sandwiches, wraps, cookies, and non-alcoholic beverages will be served
We will be setting up a photobooth with whiteboards for those who wish to campaign online. We ask that you hashtag #uosolidarity.
Designed by Rachel Gold.