Could international surrogacy ever be ethical?

The ethical question whether couples should go to India or Georgia or Nepal and seek gestational surrogacy services, that question is not settled by whether the balance of benefits to harms is good or bad for the local population because among other things some ethicists don’t believe that ethics is a matter of just comparing the benefits and the harms. Some ethicists say, “there are some kinds of actions that you should not undertake even if they maximise utility, even if they generate more benefit than harm.”

And they might say, “even if this is a win-win deal for example between the couple who benefit a baby that they really want and care about that much more than the money they pay and the gestational surrogate who presumably in most cases at least, if she is informed and capacitated for rational decision making knows what she is doing and presumably stands to benefit. So maybe even if the pregnancy is dangerous and more dangerous than it should be it is still less dangerous than the alternative hazardous job that she would need to engage in for many years in order to generate the same money.”

Some ethicists would say that, “even when that is the case that can be exploitative, the couple or the surrogate’s employers are exploiting her weak bad alternatives in order to give her an unfair deal and even if that deal benefits her that’s still exploitative and impermissible.” So different ethicists would take different approaches to this. Other ethicists say, “look the one worst thing than being exploited is not being exploited. We really should be certainly permitting in our regulations but also not refraining from practices that in fact ameliorate these women’s situation.” If indeed they do, that is still contentious.

The ways in which the international gestational surrogacy industry would definitely benefit from regulation, basic things like independent legal representation for the surrogate/carrier, medical safety proper informed consent, that’s obvious we need that. How to get there is not so obvious. The country often benefits a lot economically from the existence of that industry. And it is like any other global market. If there was going to be a lot of regulation, it is going to make it a little more expensive to practice to provide that service in that country. And if that service becomes even a little bit more expensive they might move to the next country.

So India might lose to Nepal or to Thailand and both countries know that so there is what philosophers and economists will call ‘a prisoner’s dilemma’ between these countries about which provides the cheapest services and that can drive down also the strength of the regulatory framework. In that respect it would have been great if we had an international system for regulating these countries top down. WHO or such organizations would have international regulation governing that area. But we know the reality. Right now we unfortunately don’t have an international system that has anything like this power so at this point we cannot do this.

Maybe regulations at the source countries of the tourists, especially of their referring hospitals or if in the future for some medical services the medical system of the source country. In the UK that would be the NHS sends people abroad for services. Maybe there we could hope to achieve demand for a properly regulated industry in the destination countries of the tourists. But that is not there yet.