Françoise Baylis argues that the focus on “criminalization” in recent Canadian debates about payment for surrogacy is a serious distraction aimed at ignoring the critical issue of “commodification.”

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There are a number of people who want access to women’s bodies so that they can have children with whom they have a genetic link. For example, there are single men who do not have a female partner with whom to reproduce. There are also women (single or in a couple relationship) who have healthy eggs but are unable or unwilling to carry a pregnancy. As well, there are men in same sex relationships who want children with a genetic link to at least one member of the couple.

In Canada, these people (often called intended parents) can legally access the services of a surrogate. They cannot pay her, but they can reimburse her for costs incurred. The reason for this is explicit in the founding principles of the Assisted Human Reproduction Act which state that “trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends raise health and ethical concerns that justify their prohibition.”

Some are against the prohibition on payment for surrogacy and Mr. Anthony Housefather, a Liberal Member of Parliament, has decided to champion their cause. He, among others, insists that the prohibition on payment for surrogacy is wrong because it criminalizes women’s bodies. This statement has rhetorical force. After all, who wants to criminalize women’s bodies? But this statement is seriously misleading. The current Act does not criminalize women’s bodies—surrogacy is legal and women can freely engage. What Mr. Housefather and others are against is the prohibition on payment for surrogacy.

Charles Leplae, Two Pregnant Women, 1953 Image Description: Photo of outdoor sculpture in park. Sculpture depicts two pregnant women, wearing dresses, facing one another, and each holding one hand over their stomach.

Some people support payment for surrogacy for practical reasons. Among these people are those who lament the fact that there are not enough women willing to use their bodies in this way. They describe the problem as a “shortage” as if the issue is simply a market problem where demand outstrips supply. The proposed solution—to increase supply by putting money on the table—is too simplistic. This strategy ignores the fact that payment for surrogacy is not just about economics, but also about ethics.

Why assume that anyone should be allowed to buy anything they want and that government should not stand in the way of those with the means to exploit and coerce others? Let’s consider, for a moment, a different but similar scenario where there is an unmet need, not merely a want, and where most governments explicitly preclude a market in body parts.

There are people with organ failure who need an organ transplant to live. There is a chronic shortage of organs for transplantation and, as a consequence of this, people die on waiting lists. But rather than create a market in human organs, governments invest in various social strategies aimed at encouraging organ donation. If we are not willing to put the human body in the market place to save lives, why would we do so to allow people to satisfy a desire for genetically-related children?

Other people are against the prohibition on payment for surrogacy for principled reasons. Among these people are those who maintain that surrogacy is labour; women should be paid a fair wage and provided with proper working conditions. Proponents of this argument draw attention to the fact that everyone except the woman who is pregnant and gives birth (i.e., the brokers, lawyers, and doctors) is paid. They insist it is unjust that the woman should work for free.

The problem with this argument is that it elides the fact that the labour of pregnancy is like no other kind of labour and that what is really being bought and sold is the child. The argument uses semantics to avoid the fact that the labour of pregnancy involves the procreation of a child and that, with a surrogacy agreement, the expectation is that the child belongs to the employer(s) (intended parent(s)).

This expectation also means that women who become surrogates are in many ways indentured labourers. They cannot quit their “job” on a whim (or with reason) and expect to be paid for their labour. For example, after the birth of their child, they cannot freely choose to keep the child or ask a different person or couple to adopt the child that they have been paid to create.

From another perspective, do those who believe that pregnancy is labour for which pregnant women should be paid a fair wage (whatever that might be) also believe that all pregnant women, not just those who sign surrogacy agreements, should be paid? I have yet to hear this argument from a Member of Parliament.

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Françoise Baylis is a Professor and Canada Research Chair in Bioethics and Philosophy at Dalhousie University @FrancoiseBaylis