What Kind of Surrogacy is Compatible With a Fiduciary Account of Parenting?

Hello Team! After a hectic end of a hectic semester, we are back to bringing you short pieces of public philosophy here at PEA Soup’s The Pebble. Today’s entry is brought to us by Anca Gheaus, Associate Professor in the Department of Political Science at the Central European University in Vienna. Here is Professor Gheaus now: 

 

Recently I’ve been thinking a lot about surrogacy, because I am writing a for-and-against book on the topic, with Christine Straehle. She’s for, I’m against. My reason against surrogacy, at least as practiced today, is child-centred: I argue that most cases of existing surrogacy should be understood as instances of adults attempting to engage in a private transfer of their parental rights. A bit like going for a privately arranged adoption, where you give me the right to bring up your kid, either for money or altruistically. However – I say – parents lack the moral power to transfer custody at will. The moral right to parent is not a claim but a privilege, and for this reason not the kind of thing that can be passed on based on a private agreement. People enjoy this privilege because it is in their children’s interest to have them as parents [1].

I find this view quite compelling, and I was surprised that none of the numerous works I’ve read so far defends it. Now, my assumption that the moral justification for having custody over particular children is grounded in the interest of the child, and in adults’ interest in having custody, is very contested. Not as contested, though, as one might think reading political philosophy and, possibly, bioethics alone. In these subfields many people hold so-called dual-interest accounts of the moral right to parent, according to which this is a claim right that adults have partly in virtue of their own interest in being parents. By and large, they see parenting as an important and legitimate project, which adults have a right to pursue as long as they meet some parental competency requirements. But there is an alternative theory, one that legal scholars who subscribe to the best interest of the child standard shouldn’t find too controversial: The theory, which a I endorse together with a couple of other philosophers [2], says that parenting is a fiduciary role and, therefore, not something that one may claim as a right which protects one’s own interests. You can’t have a claim to raise a child because it’s part of your life plan to do so, any more than you can have a claim to to the custody of a person with profound intellectually disability because it is part of your life plan to engage in stewardship. (I don’t mean to imply that children and intellectually disabled people are similar, except for both needing custodians.)

Now, where does this leave us with respect to surrogacy? It depends on what actually goes on in a surrogacy agreement. Scholars disagree: Many critics of commercial surrogacy suggest that it is a form of child-selling. But children can’t be owned, and hence can’t be sold – as many others object. Then, perhaps, what commercial surrogates sell is merely their gestatory services? But in this case, as some noted [3], commissioning parents have no special claim over the child – they pay only for a gestational activity. However, intending parents, in fact, seek much more from a surrogacy agreement: they aim to raise the baby. By analogy, I don’t pay the baker only to bake the bread, but to also give me the bread. More plausibly, most types of surrogacy involve the transferring of one’s right to parent – selling in the case of commercial surrogacy, gifting it when the agreement is altruistic. Political philosophers, at least, tend to see surrogacy as the transfer of parental rights. Yet, they stop at saying that much, and never question the very possibility of transferring the right to parent. Even philosophers such as Richard Arneson [4], who believe that parental rights are strictly fiduciary, think that surrogacy is permissible in principle. And not even its fiercest critics, like Elizabeth Anderson [5], make their case by arguing that one cannot sell, or gift, a privilege right. But a fiduciary role cannot be transferred at will: so, I conclude that surrogacy involves a mere attempt to sell or gift custody.

I don’t know if the blindspot comes from a form of residual proprietarianism in relationships with children. Is it possible that even some philosophers who hold fiduciary accounts of parenting tend to see the right to parent as a transferable kind of claim right? Maybe [6]. In any case, the lesson, I think, is that any normative analysis of surrogacy must rely on some view of what it means to have the right to control a child’s life – that is, to be a custodian. Is it a claim partly protecting the right-holder’s interest? Or a privilege entirely grounded in the child’s interest?

Above, I said that we should understand most types of surrogacy as attempts to transfer parental rights. One type, however, can be plausibly described as the mere provision of gestational services. If so, this kind of surrogacy would not necessarily be illegitimate, on the child-centered view that I hold. I have in mind full surrogacy with gametes from intending parents. Assume that genetic parents always make best parents to their offspring. If so, in such situations intending parents pay the surrogate for her services and, once the gestational labour finished, they automatically become the moral parents of the newborn, on grounds of best fit. This is an interesting case, which I’ll examine closely in the book. Not even in this case, I will end up saying, is surrogacy a permissible practice: first, because we know that genetic procreators are not always the best parents to their offspring. Second, because appeal to the feature that most likely recommends them as parents could provide even stronger support for the surrogate claiming the right. Many think that genetic parents have a higher than average likelihood to bond with the child in virtue of their genetic connection. But not a few (also) believe that birth mothers often stand in some kind of intimate relationship with the newborn [7]. Gestational mothers are not just containers [8]. So, not even intending parents who provide both gametes can automatically hold the moral right to the newborn’s custody, which, indeed, is what they seek from surrogacy and what they see themselves as paying for.

For everything I said so far, it may still be possible to defend a practice whereby women gestate “for others” – that is, without an intention to acquire custody over their newborns. But any children born in this way would automatically become the charge of the state, and custody over a particular baby would not automatically go to the adults who may most hope to parent her, and who may have contributed one or both gametes to her procreation. Perhaps in a majority of cases either a strong desire to parent a particular newborn, or a genetic connection with the baby, or both, would make intending parents the best custodians of their genetic offspring; yet, the interest of the child would have the last say in custody allocation. This, indeed, would make a dent in prospective parents’ own interests, but a well motivated one.

Notes

[1] I argued for this in “The Best Available Parent”, Ethics 131(3): 431-459, 2021.
[2] David Archard, Children. Rights and Childhood, 3rd edition. London and New York: Routledge, 1993/2015; James Dwyer, Religious Schools v. Children’s Rights. Ithaca, NY: Cornell University Press, 1998; and Pater Vallentyne, “The Rights and Duties of Childrearing”, William and Mary Bill of Rights Journal 11:991-1010, 2003.
[3] Cecile Fabre, Whose Body is it Anyway? Justice and the Integrity of the Person. Oxford: Oxford University Press, 2006.
[4] In “Commodification and Commercial Surrogacy”, Philosophy and Public Affairs 21: 132–64, 1992.
[5] In “Is Women’s Labor a Commodity?”, Philosophy and Public Affairs 19: 71–92, 1990.
[6] Recent work about justice in childrearing often notes that proprietarian attitudes and practices towards children are still widespread, not surprisingly given the legal status of children as property in the past. See, for instance, Harry Brighouse and Adam Swift Family Values: The Ethics of Parent-Child Relationships. Princeton University Press, 2014.
[7] I argued for this at length in “Biological Parenthood: Gestational, Not Genetic”, Australasian Journal of Philosophy 96(2): 225-240, 2018.
[8] This is more than a mere claim about relationships that are worthy of protection; it is a metaphysical claim that several contemporary philosophers are exploring. See, for instance, Theresa Baron, “Nobody Puts Baby in the Container: The Foetal Container Model at Work in Medicine and Commercial Surrogacy”, Journal of Applied Philosophy 36(3): 491-505, 2018.