Image from Isabelle Khoo | Huffington Post

Heather Cross is a 1L student at the University of Ottawa Faculty of Law (Common Law Section).

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, in its current form the AHRA 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 relies on presumptions to limit a woman’s capacity to 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, parliament 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 issue 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.