Redefining Exploitation: Surrogacy Arrangements in Israel and the United States
By: Daniela Mansbach and Alisa Von Hagel
This blog was previously published on July 29th 2016. Below is a brief update written on June 2020:
Despite some legislative changes in Israel and the US, the main forces of exploitation in surrogacy continue. In the US, exploitation still centers on a specific impediment – cost. At the time of this update (June 2020), surrogacy is now legal or permitted in 47 states. Among the handful of states liberalizing their surrogacy laws in recent years is New Jersey’s 2018 Gestational Carrier Act, Washington state’s 2019 reversal on their commercial surrogacy ban, and Oklahoma’s recent legalization of surrogacy contracts. However, healthcare – and specifically fertility medicine – remains a part of a private healthcare system that contributes to extreme costs for the average patient. In Israel, in February 2020, the High Court of Justice ruled that the existing restriction on same-sex couples from entering surrogacy agreements is discriminatory. The Court granted the state one year to change the law. While this change has not yet been enacted, if done, it will grant gay couples access to surrogacy agreements in Israel. While this change will address discrimination based on sexual orientation, it will do little to change the existing power relations within surrogacy agreements.
Assisted reproductive technologies (ARTs) are often criticized by feminist scholars as exploitative in nature; they take place within the medical field, which has a history of discriminating and oppressing women, leading to unequal health outcomes. Within this context, surrogacy – the act of carrying a pregnancy for another couple or individual -, is often considered one of the most injurious ARTs, primarily due to the potential emotional, physical, and economic exploitation of the surrogate.
Surrogacy requires a woman to undergo an arduous medical process for the wellbeing of others, which is not only physically complicated, but also emotionally difficult. The potential for exploitation is heightened by the unequal distribution of power, between the surrogate who is often of lower socio-economic status and the intended parents, who are often highly educated and wealthy. The increasingly transnational nature of this practice today – with intended parents often seeking out surrogates in other nations in order to minimize cost and reach an advantageous legal status – further enhances the risk of exploitation. It is for these reasons that some feminist scholars argue surrogacy should be prohibited in all cases, with no exceptions.
While we are sympathetic to the claim that surrogacy will always include exploitation, at least to some extent, we regard the possibility of eliminating such a practice as highly unlikely. The global nature of the market for ARTs, in general, and surrogacy, in particular, makes its eradication even less likely, since this would require legislation and enforcement at the global level.
Therefore, based on the current market for surrogacy, we are interested in developing practical methods to reduce or limit the exploitation of surrogates. For us, the answer is in the development of regulations that adequately protect the rights and safety of women. However, we also recognize that there is no clear answer to the question of what specific requirements and regulations will limit or ameliorate exploitation. For example:
Is unlimited monetary compensation more or less exploitative than compensation that is limited to expense reimbursement of the costs incurred while pregnant?
Is the requirement that a surrogate be single – because of the concern that a partner may force her to become a surrogate – less exploitative than opening the practice to all women, including those with a stable partner, who can support her during this long and difficult process?
And what about the allowance or prohibition of altruistic -thus, unpaid- surrogacy?
For us, it is clear that there is no simple way to answer these questions. Instead, we believe that it is the context – mainly, the cultural, social, and economic assumptions and beliefs of a specific place and time – that influences the surrogate’s experience of exploitation.
Thus, in order to ensure that women’s health and safety remain of paramount importance, we have devised basic outlines of regulations that are context-dependent in nature, and are thus able to mitigate some of the most direct and immediate harms that occur as a result of this practice. In order to evaluate these unique scenarios and the specific experiences that such regulations must address, this paper analyzes and compares two cases – Israel and the US – that are distinct in their cultural, social, and economic context, as well as in their approach to regulation of ARTs, in general, and surrogacy, in particular.
Israel is an example of a country with a highly regulated approach to surrogacy. In 1996 it was the first country to legalize the practice, requiring that a committee approves the agreement between intended parents and the surrogate, ensuring all parties follow specific guidelines. The guidelines include standards for surrogate mothers and the intended parents, such as:
different limits on age and marital status,
detailed listing of the expenses incurred by intended parents,
and the legal relationship between the intended parents and surrogate mother.
While we support such detailed regulations and requirements, we believe that in the case of Israel, with its extraordinary emphasis on motherhood, some of the current regulations – for example, the illegality of altruistic surrogacy, on the one hand, and the very limited compensation for surrogates, on the other hand -, increase the risk of exploitation of surrogates.
In the US, surrogacy, like other ARTs, is understood as a private enterprise, conducted without regulatory intervention from the state. While there are virtually no substantive federal laws concerning surrogacy, there is a patchwork of state laws on the subject; in some states surrogacy contracts are absolutely prohibited, in others the practice is authorized, while in most states there are a different array of limited legal protections – if any – in place for either the surrogate or the intended parents. In this private market approach, compensation may be whatever the intended parents are willing to pay. The cost for a surrogate in the US can be anywhere between $25,000 and $50,000, with even higher prices advertised. Within this context, what is needed is a cap on payment to create a balance between the fair compensation for the time, energy, and health risks involved, on the one hand, and the risk of coercion and exploitation, particularly for low-income women, on the other.
The comparison of these two cases helps underscore that it is the context that defines what type and amount of compensation is less exploitative. Thus, specific social expectations and economic risks, which are shaped by local conditions and context, should be taken into consideration when developing comprehensive legal protections. Assisted reproduction – in the form of IVF, preimplantation genetic diagnosis, and cryopreservation – will remain present, with new forms of technology and possibilities continually developing over time. Thus, the identification of the context-specific experiences within universally problematic practices is crucial for the development of public policies informed by feminist values, which are able to address new issues and technologies as they become viable.
Read the full article here: The Regulation of Exploitation: A Comparative Analysis of Surrogacy Arrangements in Israel and the United States
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Dr. Alisa Von Hagel is an Associate Professor of Political Science at the University of Wisconsin-Superior. Her contemporary research - conducted with colleague Dr. Daniela Mansbach - focuses primarily on the changing strategies and impact of the pro-life movement on reproductive rights policy in the US.
Dr. Daniela Mansbach is an Associate Professor of Political Science at the University of Wisconsin-Superior. Her current research, conduced with colleague Dr. Von Hagel, analyzes participation of experts in reproductive health legalization at the state level.