Commercial surrogate motherhood

Children are objectionably turned into a commodity by commercial surrogate contracts since these contracts consider parental rights over children thereby turning them into property which can be allocated at the parents’ will and not as trusts to be allocated in the child’s best interest.

Commercial surrogate contracts compromises the inalienable rights of mothers to act in their children’s best interest thereby expressing a gross disrespect for mothers. Beyond these, there are other ethical concerns with regard to commercial surrogate motherhood.

Those in support of the practice argue that contract pregnancy does in no way result in total commodification of children or their mothers and that there are particular ways in which commodities are treated such cherishing them which may not be termed as objectionable ways of treating individuals.

1 A sound ethical critique of commercial surrogate contracts cannot therefore be based on the supposition that the practice is synonymous with turning children and their mothers into actual commodities, neither can it be based on any parallel between how children and their mothers are treated by contract pregnancy and the way some individuals treat commodities. Instead, commercial surrogate pregnancy commodification objections must specifically point out the respects in which the children and their mothers are being treated and again explain why such treatment is considered objectionable.

When the production, distribution or enjoyment of anything is basically governed by norms which are distinctive to the market, such a thing is considered a commodity. The relationship among the individuals who produce, distribute and enjoy the benefits which accompany the thing in question is structured by market norms. For instance, the allocation of freely alienable rights is determined by the will and desire of individuals in market transactions.

As such, it is the responsibility of every individual to look after his interest. Neither party is expected to take into consideration the interests of another except to the extent which the law requires. The question at stake with regard to commercial surrogate motherhood is whether such norms which govern the realm of market transactions should be stretched to consider parental and custodial rights allocation to children.

In this paper, my position is that commercial surrogate motherhood is deeply immoral mainly because it commodifies both women and children. As such, it turns humans to commodities subject to trade which has a consequence of turning human individuals into slavery. The essence and nature of children is such that they should never be sold. However, individual who support commercial surrogate motherhood argues that it does not amount to actual sale of custodial and parental rights over children.

2 Their argument is that the mother is paid so as to surrender her right to claim legal parenthood of the child and not to transfer her custodial and parental rights to the father. This is from a legal perspective. Since her right is not transferred but surrendered, the legal sale of parental right is not literally involved in commercial surrogate motherhood.

However, the concept of commodification is not a legal one. Rather, it is an ethical and cultural concept.

Even if transaction legally defined as a sale is not involved in commercial surrogate motherhood, it still may commodify children if parental norms are replaced with market norms with regard to the children’s rights and custody. My argument is that commercial surrogate motherhood does exactly this since it deviates from seeing parental rights over children as trusts which is supposed to be allocated in the child’s best interest to considering them as a freely alienable property right which is to be allocated at the parent’s will.

In order to see how this comes about, consider two legal regimes: one which considers pregnancy contracts to be null and void and another in which it is valid and enforceable. I would advocate for the first instance while those who support commercial surrogate motherhood would advocate for the second.

The major question that one is bound to ask is whatever would happen if there is a disagreement between a mother and father on under whose should the child be once it is born. This is considered a custody dispute between two parents under the first regime. Such disputes are resolved in the United States by considering the child’s best interest.

The only standard of judgment becomes the child’s interest contrasted with degree of soundness of either of the parents’ claim to custody. No parent is allowed to bail another so as to go away and again expect that the courts uphold such voluntary contracted agreements. This is because parents do not possess the right to separate their rights willfully over their children.

They hold as trusts their rights over the children. The rights of parents over children are only so as to facilitate role performance. In other words the rights are necessary as a means of facilitating the discharge of parent’s obligation to children.

Parents cannot negotiate their obligation to their children neither can they negotiate the vital means to discharging obligations. However, it is the right of every child to claim sustenance, care and protection from both the parents. As such, the parents cannot voluntarily relinquish this right.