Paternalism, Autonomy and Surrogacy
The role of the state in protecting women’s autonomy
in commercial and altruistic surrogacy
Abstract
This thesis discusses whether or not commercial or altruistic surrogacy ought to be legally allowed in the perspective of autonomy. By discussing different theories of paternalism and definitions of autonomy we have seen that the issue is more complicated than first anticipated. Rather, this thesis finds restrictions to women’s bodily autonomy to seemingly be inevitable when trying to deal with surrogacy. Furthermore, we find that the result of weighing these autonomy impairments against one another risks being based on arbitrary grounds. In conclusion, I suggest that the easiest way to increase autonomy is to change norms of constructing a family and trying to help those that are involuntarily childless to find happiness without risking to harm a potential surrogate.
The role of the state in protecting women’s autonomy in commercial and altruistic
surrogacy ... 1
1. Introduction ... 4
2. Background ... 5
3. Paternalism – what should be legally allowed? ... 8
3.2 Richard Thaler and Cass Sunstein’s Libertarian Paternalism ... 9
3.3 Jason Hanna and the Defence of Hard Paternalism ... 10
3.4 Conclusion on paternalism and what should be legally allowed ... 12
4. Autonomy and the characterizations of an autonomous decision ... 14
4.1 Mackenzie’s Relational Analysis ... 14
4.1.1 The Relational Analysis Applied ... 17
4.2 Stoljar’s Adaptive preference formation ... 19
4.2.1 Stoljar’s Theory on Adaptive Preference Formation Applied ... 21
4.3 An objection to Adaptive Preferences as Nonautonomous ... 21
4.3.1 Changing societal norms to enhance autonomy ... 24
4.4 Surrogacy legislation as demeaning ... 26
5. Conclusion on autonomy and the definition of an autonomy impairment ... 29
5.1 Are restrictions of autonomy inevitable? ... 30
6. Concluding remarks ... 32
7. References ... 34
1. Introduction
Recently, two separate articles were published regarding surrogacy in Sweden. The first was published by the Swedish National Council of Medical Ethics and the second was an investigation published by the Swedish government. The two reports reached different conclusions in the matter, the former by the Council argued in favour of allowing surrogacy in certain circumstances while the latter by the governmental investigator argued against it in all circumstances (Gunnarsson Payne, 2018, p.67). The Council claimed that prohibiting altruistic surrogacy would be to limit women’s right to determine how they wish to live their lives, while the Governmental Investigator argued that the surrogate mother’s right to self-determination requires that the mater est rule is respected, which means that she is able to change her mind even after the delivery (Gunnarsson Payne, 2018, p.68). As of today, surrogacy is effectively banned in Swedish healthcare due to the mater est rule. Assuming that self-determination or autonomy is of value, should we then legalize surrogacy? The focus of this thesis will be to analyse whether or not surrogacy should be legal in the perspective of autonomy.
The aim of this thesis will be to discuss the topic of autonomy and apply it to the issue of both commercial surrogacy and altruistic surrogacy in order to conclude if either of them should be legally allowed. The former, commercial surrogacy, being compensated or paid surrogacy while the latter, altruistic surrogacy, concerns surrogacy without compensation.
I will start my thesis of by giving some background to the discussion of surrogacy in Sweden today. In section 3 I will briefly explain the premises of paternalism and argue for what the state should be able to legally prohibit and what should be up to the individual to decide for themselves. Then later, in section 4, I will present different theories of autonomy and apply them to the issue of surrogacy. Many ideas of autonomy are set out to oppose the idea of paternalism. However, this thesis wishes to show that respecting autonomy doesn’t necessarily have to imply a rejection of paternalism. Instead, I suggest that respecting autonomy can also be an argument towards the prohibition of surrogacy. Lastly, in section 5 and 6, I will present the conclusions made from section 3 and 4.
2. Background
In her recent article Autonomy in altruistic surrogacy, conflicting kinship grammars and intentional multilineal kinship, Jenny Gunnarsson Payne compares the two Swedish reports on surrogacy. The first report from 2013; Assisted Conception – Ethical Aspects, published by the Swedish National Council of Medical Ethics [Statens medicinsk-etiska råd (Smer)], henceforth referred to as the ‘Council’, argues in favour of altruistic surrogacy. The Council claims that prohibiting women from becoming surrogates would be harmful to their self- determination (Gunnarsson Payne, 2018, p.67). According to The Council, there are women who autonomously wish to become surrogates to a friend or family member, and as long as certain conditions are upheld this should not be interfered with by the state (Gunnarsson Payne, 2018, p.67-68). Gunnarsson presents the Council’s conditions as following: (1) the surrogate and the intending parents must have a close relationship to each other (2) the surrogate must have gone through a pregnancy before and (3) the surrogate cannot be genetically related to the child that they carry. Both the surrogate and the intended parents also needs to go through assessments in order to assure that they are suitable. The Council also argue that the child has a right to knowing early in their life how they were conceived as well as a right to information about the surrogate when they are older and mature enough (Gunnarsson Payne, 2018, p.71). Although this was the conclusion of the report, there was still a minority of the Council that argued in favour of prohibiting altruistic surrogacy on the grounds that it is too hard to assess self-determination and informed consent in the matter. This minority also argued that altruistic surrogacy is not compatible with the principle that a human being never “shall be used as a means for other people’s ends” and also highlighted the risks of commercialization, pressure, children becoming commodities and the exploitation of women (Gunnarsson Payne, 2018, p.71).
The second article from 2016; Different Paths to Parenthood which was published by the Swedish government and led by judge and governmental investigator Eva Wendel Rosberg, reached a different conclusion. The Governmental Investigator also emphasized the importance of protecting the autonomy of the surrogate, but had a different approach than the Council. Instead of focusing on the right to self-determination in the choice of one’s own body, the Governmental Investigator highlighted other risks with altruistic surrogacy.
They claimed that it is of outmost importance that the mater est rule is respected, which
means that the surrogate needs to be able to change her mind, even after giving birth. The Governmental Investigator, through highlighting the mater est rule, reached the conclusion that the risks of emerging conflict are too high and that this could potentially cause harm to both the intended parents, meaning the parents who wish to use the services of a surrogate, as well as the child (Gunnarsson Payne, 2018, p.68). The investigation also argued that there are risks of pressure on the surrogate to help close friends or relatives and that therefore, allowing altruistic surrogacy may be problematic – especially if the involved parties are closely related. Furthermore, the investigation also emphasizes the potential difficulty for the surrogate to imagine whether or not they could handle carrying a child for nine months and then giving it away to the intended parents. Their conclusion is therefor that even if there are some advantaged to allowing altruistic surrogacy in that it would help those that are involuntary childless, the risks and potential damage it could make to all parties, but especially the surrogate and the child, outweighs those advantages (Gunnarsson Payne, 2018, p.72).
Gunnarsson claims that the arguments made shows that the reason why the reports reached differing conclusions was due to disagreement on the surrogate’s bodily autonomy and self- determination, rather than fundamental ideological differences (Gunnarsson Payne, 2018, p.67). By bringing fourth these two opposing conclusions, Gunnarsson means to demonstrate the intrinsic tension between the mater est rule and the principle of parental intent in surrogacy (Gunnarsson Payne, 2018, p.68).
The legal principle of mater semper certa est, which translates to ‘the mother is always right’ is used to determine who the mother is in cases of egg donation. Since 2003 the mater est-rule is explicitly formulated in Swedish legislature as; “If a woman gives birth to a child that has been conceived through an egg from another woman after fertilisation outside the body that has been inserted into her body, she is to be considered the mother of that child”
[my translation] (Prop. 2001/02: 89 p.6) In Sweden today there are no direct laws that forbid surrogacy, but because of the legal principle of the mater est-rule, surrogacy-related treatments are effectively banned in Swedish health care (Gunnarsson Payne, 2018, p.67).
Gunnarsson reaches the conclusion that what sets the two articles apart are their differing, incompatible, views on kinship grammars. Specifically, the Council emphasizes the kinship grammar of parental intent, which means that the intendent parents have stronger claim on being the rightful parents of the child. The Governmental Investigator, on the other hand, puts emphasis on the kinship grammar of gestation – which would give the surrogate the stronger claim. What this means is that the two reports disagree on who ought to be granted the parental rights and responsibilities – the surrogate or the intendent parents (Gunnarsson Payne, 2018, p.73). Gunnarsson also states that “[…] any feminist version of surrogacy needs to put the autonomy and self-determination of the surrogate centre stage, as well as accepting that autonomy and self-determination cannot be reduced to a simple ‘choice’
made at one determined point in time, but something that may be changed and renegotiated by the person whose body it concerns, and that, in doing so, we will necessarily reduce the security and, indeed, power of the intended parents” (Gunnarsson Payne, 2018, p,74). With this in mind, Gunnarsson proposes a change in the normative notion of families only consisting of two parents, even if she admits this also brings about its own problems.
Gunnarsson considers the possibility of legally recognizing three or four parents as well as potentially granting surrogates shared custody, stating that this form of multilineal kinship would increase both reproductive autonomy and justice, for all (Gunnarsson Payne, 2018, p.74).
3. Paternalism – what should be legally allowed?
In order to determine whether or not surrogacy should be legally allowed in the perspective of autonomy we need to first settle on what should be regulated by the state and what should be left for individuals themselves to decide. To approach this, we will look to the question of paternalism. Paternalism can broadly be described as interference against a person’s will, motivated by making the person better off or protected from harm. This is however, as I mentioned, a very broad definition of the concept of paternalism and allows for many different interpretations, variating definitions and theories within the subject. It might seem like, and some would even argue that, paternalism is always in conflict with autonomy. This isn’t necessarily the case, rather, it depends on what theory of paternalism we look at, as well as how we define autonomy.
In this thesis we will focus mainly on three different takes on paternalism; soft paternalism, libertarian paternalism and hard paternalism. Soft paternalism is often defined as ‘forcing’
information on agents in order for them to be better equipped to make choices in their best interest. Suppose that the state would make it obligatory to inform high school students about the dangers of drugs and alcohol. The students are still free to make their own choice, but through soft paternalism the government tries to influence their choices in the direction that they think is in the best interest of the students. Libertarian paternalism, on the other hand, can be described as a way of ‘nudging’ the agent in the right direction. In the same example of drugs and alcohol, a store owner might decide to place alcoholic beverages in the back of the store so that customers who have the intention of buying something else are not tempted to also grab a bottle of liquor. This still is not forcing costumers not to buy alcohol, but rather making it easier for them to act in their own best interest since alcohol would be considered bad for your health. Lastly, hard paternalism is where more direct intervention is done. The state might monopolize sales of alcohol and make the stores carrying it only be open at certain times, restricting the opening hours in order to make people less likely to over consume.
In this thesis I will argue in favour of hard paternalism and this will later be the stepping stone for further arguments made on what the role of the state in the matter of surrogacy should be, and whether or not it should be legally allowed in the perspective of autonomy.
3.2 Richard Thaler and Cass Sunstein’s Libertarian Paternalism
Richard Thaler and Cass Sunstein considers a libertarian paternalism characterized by helping individuals to do what they desire rather than exercising coercion. First, Thaler and Sunstein argue that most libertarians, falsely, make the assumption that individuals always make decisions that are in their own, best interest. They then move on to present two common misconceptions; (1) that there are other, feasible, options instead of paternalism and (2) that paternalism always involve coercion. According to Thaler and Sunstein, there are inevitable situations in which institutions or individuals have to make decisions that are going to affect others. They also argue that there are ways that a libertarian paternalism can help individuals to make better decisions for themselves rather than limiting their right to choose (Thaler & Sunstein, 2003, p.175).
Thaler and Sunstein presents an example of a school cafeteria in which the employee has to decide where to place the desserts and where to place the healthy options such as fruits. The idea is that the chosen placement of desserts in the cafeteria might affect the health choices made by the students at the school. Thaler and Sunstein reach the conclusion that as long as the desserts are still accessible and no choice has been taken away, then it seems acceptable to promote a healthy option without compromising any libertarian values. Instead, Thaler and Sunstein argue that the libertarian paternalistic approach of promoting fruits by for example placing it next to the cashier seems to be the best option (Thaler & Sunstein, 2003, p.177). Either way, some product needs to be placed next to the cashier, so even if we make a conscious decision of what to promote or if we just place a product there randomly, we will affect the choice of the consumer – thus making paternalism inevitable. The argument, made by Thaler and Sunstein, seems to be that if affecting the decision of the consumer is inevitable, why not try to promote the better choice, in this case the healthy option?
The premises that are presented about the two misconceptions and the false assumptions are well argued for and seems acceptable. Indeed, the problem with Thaler and Sunstein’s article is not that they don’t convince us that there is a way for keeping libertarian values and still promoting paternalism, rather, the problem seems to be why we are not advocating for even more, ‘harder’ paternalism. The aim of the article certainly is to convince
libertarians, but makes no real, strong arguments about why we should stop at the placing of desserts in the cafeteria, if people are generally bad at acting in their own best interests.
Thaler and Sunstein recognizes paternalism similarly to the definition presented earlier in this thesis, as interference that aims to make the affected parties better off (Thaler &
Sunstein, 2003, p.175).
3.3 Jason Hanna and the Defence of Hard Paternalism
In his book ‘In Our Best Interest’, Jason Hanna argues in favour of hard paternalism.
According to Hanna, unless an intervention in the best interest of an individual is wrong in virtue of its effects on others, then this intervention does not treat that individual impermissibly (Hanna, 2018, p.2). Although Hanna claims that his account of pro- paternalism does not necessarily imply any indication of what legal authority the state should have, his arguments will be used in favour of intervention and we can then additionally argue that the state is best equipped of intervening in the case of surrogacy (Hanna, 2018, p.37).
Pro-paternalism applies to both individuals and the government, meaning that intervention should be made on both of these levels. If we can agree that there ought to be some instances where coercion should be carried out in the best interests of agents, then some of these instances are clearly best managed by the government. Hanna believes that action such as punishment for crimes committed and confiscating stolen goods are examples of what ought to be the business of the state (Hanna, 2018, p.25). Hanna’s point is that there are instances where intervention and coercion should clearly be dealt with on the governmental level.
Hanna makes some important distinctions of how we should define what’s in our best interest. By considering someone who gets a ticket for not wearing their seatbelt while driving, Hanna wishes to clarify how we, in practice, can understand intervention in the best interest of individuals. Though the law that requires people to wear seatbelts might not have been in the best interest of that individual, at this specific point in time, overall it could be justified on paternalistic grounds since it might save lives through giving stronger incentives for people to wear their seatbelts – and thus increasing road safety (Hanna, 2018, p.27). This same individual who got the ticket might even at some other point be caught in a car crash
and, because he wore his seatbelt, avoid harm. Similarly, Hanna considers a critique of the paternalistic grounds of imprisonment as a punishment for crimes, where someone questions how imprisonment can be considered to be in the best interest of the one imprisoned. Hanna answers the critique by stating that, although the person being imprisoned might not at that specific point in time be better off in jail, the law, or threat of imprisonment, is likely to prevent people from committing crimes and therefore could make people generally better off (Hanna, 2018, p.27). Although this might be true in some cases, I think that the conclusion that this example should help us reach is that imprisonment shouldn’t be based on the grounds of punishment. Rather, the truly paternalistic act in this situation, what will truly make the most people better off, is to aim towards imprisonment not as a punishment, but rather as rehabilitation. In this way, the person being imprisoned will actually be better off, once they have done their time, as well as the rest of society, their friends and family, and so on.
Some might say that what makes a governmental prohibition on surrogacy an autonomy impairment, is that it treats the agents, women in this case, as if they are not able to make sound decisions in the matter themselves. Hanna describes a status-based objection to pro- paternalism that could be related to this issue. The idea is that some intervention might be thought of as demeaning to the agent not because the intervention in itself seems insulting, but rather that it treats the agent as being of lower status than she is (Hanna, 2018, p.75).
Hanna answers this critique by stating that pro-paternalists don’t necessarily believe that the agent lacks the ability to make sound choices, but rather that, in this instance that intervention could be the solution, the agent fails to exercise this capacity well enough to do what is in their best interest (Hanna, 2018, p.79). It is quite obvious that no matter who you are, you do not, at all times, make the decision that is in your best interest. All people sometimes fail to exercise their capacity of being reasonable, know what is best for them, and then act accordingly. Hanna argues that if someone feels insulted by intervention, this feeling should be considered one of the costs of intervention and be weighed against the potential benefits (Hanna, 2018, p.59). Hanna also states that some expert in a certain field may be more inclined to interfere in the acts of the some individual without this intervention being deemed insulting, like a doctor telling their patients they should exercise more versus a family member without any health expertise giving the same advice. Similarly, Hanna
argues that the government can be deemed an expert in certain fields and therefore this should not, on the same grounds as stated before, be seen as insulting intervention (Hanna, 2018, p.73).
Although paternalism is sometimes criticized for depriving individuals of their autonomy, Hanna, on the contrary, argues that intervention cannot, when it is in the person’s best interest, violate or disrespect autonomy. Instead, Hanna suggests that paternalistic intervention might even, in some occasions, protect autonomy (Hanna, 2018, p.13). Looking at paternalism in this way, and applying it to surrogacy, it seems to be reasonable to suggest that we indeed can intervene in the best interest of the different parties involved in surrogacy in order to protect autonomy, and that this doesn’t necessarily need to conflict with each other (Hanna, 2018, p.54).
3.4 Conclusion on paternalism and what should be legally allowed
Consider an example; most people would probably agree that, in a welfare state, we have a duty to take care of children and elderly people because they cannot take care of themselves.
To leave them fending for themselves would be cruel, so if there are children without parents or elderly people without relatives to help them – the state ought to provide them with what they need to live a worthy life. Most people would consider this duty of the state to also concern people with disabilities and maybe even people who for various reasons find themselves homeless or in some other kind of vulnerable situation. What children, elders, homeless and disabled people have in common is that they, to variating degrees, cannot take care of themselves – and they are not the only ones. I would argue that we all, at some point of time in our lives, are incapable of taking care of ourselves. Whether it be when we are infants or when we are just weak minded – we don’t always see what is in our best interest, and even if we do, we might not be in the position to act accordingly. Thaler and Sunstein also argued, in favour of a libertarian approach to paternalism, that individuals don’t always act in their own, best interest. Hanna takes this further, stating that if we are allowed to intervene in the best interest of adults who are permanently incompetent, we should also be allowed to intervene with those that are only temporarily incompetent (Hanna, 2018, p.146).
Not intervening in the best interest of some individual, who is incapable of acting in her best interest, might therefore be argued to be cruel in the same way.
I do think that there are strong arguments in favour of the state acting on what is in our best interest. For instance, it’s hard to argue against a law that requires you to wear your seatbelt since it is clear that it is in your best interest, and if you are not doing it voluntarily then you might not be able to effectively exercise your ability to assess the risks of driving. Much like Hanna’s example of some individual receiving a ticket for not wearing their seatbelt, we should think of surrogacy in a broader scope. Suppose that some state prohibits both commercial and altruistic surrogacy and that a woman in this state wishes to help her friend to become a parent through surrogacy. Suppose also that this woman desires this autonomously, without any pressure from her friend or others and is fully informed as well as understands what would be required of her as a surrogate. The ban of surrogacy in the state might not be considered to be in the best interest of this specific woman’s autonomy, at this specific point in time. However, much like the example of the driver, some other woman who would have become a surrogate for the wrong, nonautonomous, reasons might be better off. By this example I wish to put forward the idea of a ban of surrogacy being what will make women, generally, better off even though it could potentially, or most likely, in specific situations, impair women’s autonomy.
The account for libertarian paternalism, presented by Thaler and Sunstein, shows us that (1) some paternalism will be inevitable and (2) that paternalism does not, necessarily, include coercion. However, Hanna’s arguments have also shown us that hard paternalism, or
‘coercion’, doesn’t have to be impairing to autonomy. Rather, sometimes, what is in the best interest of the individual could be to protect their autonomy, and this can sometimes be done by enforcing laws upon individuals.
As previously stated, Hanna argues that unless an intervention in the best interest of an individual is wrong in virtue of its effects on others, then this intervention does not treat that individual impermissibly. In order to apply this on the issue of surrogacy, we first need to decide what will make all parties better off, and secondly if this would be ‘wrong in the virtue of its effects on others’. If banning commercial surrogacy and altruistic surrogacy is in our best interest, and is not deemed ‘wrong in the virtue of others’ then our conclusion should be that the state in fact should ban all forms of surrogacy. Some would say that
effectively banning all forms of surrogacy is a definite impairment to the autonomy of women, but like I stated in the beginning of this section, this depends on the definitions of paternalism and autonomy. Now that we have settled on a harder form of paternalism, we will move on to defining different theories of autonomy, and how this will affect our conclusion on whether or not surrogacy ought to be allowed.
4. Autonomy and the characterizations of an autonomous decision
In order to discuss whether or not to legally allow surrogacy, based on autonomy, we need to define what autonomy is and when it is impaired. In the following section we will look at different definitions, or theories, of autonomy, and what conclusions about surrogacy they can help us reach.
4.1 Mackenzie’s Relational Analysis
In Three Dimensions of Autonomy: A Relational Analysis, Catriona Mackenzie argues that the true definition of autonomy needs to be understood in three different, but causally interdependent, dimensions; self-determination, self-governance and self-authorization (Mackenzie, 2014, p.15).
Mackenzie starts off by distinguishing between unitary and ethical concepts. Water, a dog or gold are unitary concepts while goodness, trust and autonomy are ethical concepts.
According to Mackenzie, autonomy is often described as self-governance, which means to be able to make choices and act out of your own motives, values and reasons. However, Mackenzie claims that this is the definition of autonomy as a unitary concept, and that the unitary definition of autonomy is inadequate (Mackenzie, 2014, p.16). Instead, she suggests that we need a multidimensional analysis of autonomy, partly because the concept of autonomy is used for so many different purposes in different social and normative contexts.
(Mackenzie, 2014, p.17).
Mackenzie proposes a relational understanding of autonomy. She argues that autonomy needs to be considered relative to the context in which we speak, instead of being absolute in the sense that it’s either something you possess or you don’t possess at all (Mackenzie,
2014, p.19). What this relational autonomy means in practice, is that an individual could be considered autonomous at work but not in their personal life, at the same time.
According to Mackenzie, there are mainly three reasons for why we should consider autonomy as relational; (1) that our conception, or definition, of autonomy has to be susceptible to the facts of human vulnerability and dependency rather than assuming that all individuals are independent and rational in their actions (2) that individual identities have complex relations to cultural, social and historical factors and (3) that social conditions that limit self-determination are unjust and thus, a society which considers itself socially just has obligations towards all citizens to create social, legal and political institutions that protect autonomy (Mackenzie, 2014, p.21-22). The purpose of considering these relational aspects of autonomy, Mackenzie argues, is to illustrate how stigmatization and oppression can impede individual autonomy (Mackenzie, 2014, p.23).
Mackenzie then goes on to more thoroughly present the three interdependent dimensions;
self-determination, self-governance and self-authorization. Self-determination includes having both the freedom and the opportunity to make choices of importance to one’s own life. Choices such as what to value or who to be are considered in this dimension. The conditions of freedom concern any kind of social or political constraints that interfere with self-determination and the conditions of opportunity considers what opportunities are needed for an individual to be able to make choices about what to value and who to be (Mackenzie, 2014, p.17). Mackenzie argues that those who understand freedom in terms of negative liberty are more likely to overlook the conditions of opportunity. She believes that her relational analysis, by prioritizing opportunity conditions, can specify the social and political opportunities that should be deemed as preconditions for individual self- determination (Mackenzie, 2014, p.27).
Moving on to self-governance, this dimension involves having the skills and capacities that are needed in order to enact decisions. The dimension of self-governance regards the internal conditions for autonomy, opposed to the dimension of self-determination which can be describes as regarding the external conditions (Mackenzie, 2014, p.17-18). Mackenzie says that self-governance, broadly, can be described through two conditions; competency
and authenticity. The competency condition means that there seems to be some cognitive competences that are required for acting on one’s motives, values or reasons and thus being self-governing. The condition of authenticity aims at making sure that these motives, values or reasons are truly one’s own (Mackenzie, 2014, p.17).
The third dimension, self-authorization, is described by Mackenzie as involving an individual to have the normative authority to be both self-determining and self-governing.
Through self-authorization we can identify conditions for autonomy such as accountability, self-evaluative attitudes and social recognition. What this means is that the individuals can hold themselves accountable for their own decisions as well as answer to their reasons for those decisions and actions (Mackenzie, 2014, p.18-19).
Mackenzie goes on to argue that feminists shouldn’t reject the value of autonomy since women’s emancipation is dependent on some level of self-determination, self-authorization and self-governance. Furthermore, Mackenzie claims, that gender oppression in society today is an impairment to women’s autonomy in variating degrees (Mackenzie, 2014, p.20).
The aim of Mackenzie’s relational autonomy is to shed light on the very real, common, non- ideal human agents and to theorize the kind of autonomy that is possible for these agents.
The analysis is meant to show complexities in determining who is autonomous as well as diagnose how social factors such as oppression and stigmatization can impair individual autonomy. Furthermore, Mackenzie wishes to present possible solutions for how we can restructure society and institutions to protect this individual autonomy. This is also the reason why we need a relational analysis of autonomy, since the unitary concept of autonomy previously used in a number of philosophical work oversees the issues of social and political constraints (Mackenzie, 2014, p.23).
Mackenzie concludes that this relational theory of autonomy requires that autonomy can be obtained in different degrees in different contexts, and thus that it is important to also have different criteria for these contexts. For example, with respect to democratic citizenship, Mackenzie considers we might need a higher amount of self-determination than self- governing (Mackenzie, 2014, p.40)
4.1.1 The Relational Analysis Applied
Mackenzie argues that we should understand autonomy through the three dimensions of self-determination, self-governance and self-authorization; but how does this apply on surrogacy? In order for the state to rightfully ban surrogacy, women, according to Mackenzie’s definition of autonomy, need to still be able to exercise self-determination, self-governance and self-authorization despite being prohibited from being surrogates.
The conditions, according to Mackenzie, of self-determination consists mainly of freedom and opportunity. The freedom criterion is not to be understood as negative freedom, which would be freedom from interference, but rather social and political freedom to be self- determining. Secondly, the conditions of opportunity require women to still have the opportunities they need in order to make decisions about what they value and who they are.
This would mean that a ban on surrogacy shouldn’t interfere or hinder women from being who they are or decide their values for them. In his book, Hanna defends paternalism against critique saying intervention enforces values upon the individuals which are interfered with.
The value objection, says that paternalism seems to force values and interests upon other people that they might not themselves hold (Hanna, 2018, p.87-88). Hanna argues that it is not quite clear what it means to enforce values upon another, stating that this makes it hard to define just how paternalism supposedly would wrong anyone by interfering. (Hanna, 2018, p.88) Furthermore, Hanna argues that paternalism mostly appeal to values that all people would accept, such as financial security, health and longevity (Hanna, 2018, p.116- 117). If we can successfully show that banning surrogacy would be in the best interest of women since it potentially could cause harm and exploitation, then this could be in line with Hanna’s argument as something that, at least rational adults, would all value and therefore shouldn’t be in conflict with self-determination. However, those that are in favour of surrogacy might claim that there are more severe, controversial, values being forced upon women if we were to ban surrogacy all together. Some would heavily criticise this by saying that it forces values such as that the body shouldn’t be for sale or used as a commodity, even if this is the wish of the potential surrogate.
Moving on to self-governance, we now have two new conditions to consider; competency and authenticity. Relating the competency condition to surrogacy, in order to be certain that the choice of becoming a surrogate is self-governed, we need to make sure that the potential
surrogate is well enough informed to make an educated decision. This includes knowing what one is ‘signing up to’. We need to figure out how to construct a kind of contract between the surrogate and the future parents. The mater est-rule in Swedish legislature requires the surrogate to be able to change her mind even after giving birth. This is a form of autonomy-insurance that will protect the surrogate from being forced to follow through with a decision she made nine months ago. This condition, that also was advocated for by the Governmental Investigator, seems reasonable since it could potentially be problematic for the surrogate to sign a contract nine months in advance that forces her to give away a baby she has been carrying and thus, most likely, losing all claim over that same baby.
The Council, as well as many others who are pro-altruistic surrogacy, would also consider it a requirement of the surrogate to have been pregnant and given birth before in order to fully understand and make such a decision. But most people might find it hard even imagining what it must feel like to carry a child for nine months and then not even be a part of that baby’s life and give all parental right away to someone else. And if the requirement of having to had given birth before is legitimate, which means that we require the surrogate to have gone through the experience before in order to be able to make such a decision, then that same argument could be put forward on the need for experience in giving a child away.
This could be considered an uneducated decision, since the argument stated is that the potential surrogate need to experience pregnancy and giving birth in order to have all the information in making such a decision. In summary, if we accept the requirement of experience in order to make an educated decision, we could argue that surrogacy fails the competency condition. This would imply that allowing surrogacy, at least without respecting the mater est-rule, would be harmful to the autonomy of women by impairing their ability to self-govern.
Furthermore, some would argue that allowing surrogacy could also be conflicting with the condition of authenticity. Making sure that the motives, values or reasons behind the decision of some woman who desires to be a surrogate, is truly hers, might be hard. The Governmental Investigator worried that allowing surrogacy might result in women becoming surrogates for family members or friends out of pressure, and not because they truly desire it. Making sure motives are truly one’s own seems hard to guarantee in any
situation, but it is worth mentioning since the harm of some women entering into surrogacy because of pressure or oppression could be devastating.
Lastly, we shall consider Mackenzie’s third dimension – self-authorization. Mackenzie describes this as insuring that the individual possesses the normative authority of being both self-determining and self-governing. This involves conditions such as accountability and self-evaluative attitudes. This implicates that the surrogate, in this case, can hold herself accountable for her own decision and actions as well as answer to her reasons for those actions. This dimension of Mackenzie’s theory on autonomy seems to oppose a ban on surrogacy since this does not allow women to decide for themselves.
4.2 Stoljar’s Adaptive preference formation
In the anthology Autonomy, Oppression and Gender Natalie Stoljar writes about adaptive preference formation. Stoljar argues that people who are oppressed, much like women have been in society for a long time, learn to adapt their preferences to fit their perceived opportunities (Stoljar, 2014, p.227). What Stoljar wishes to explore is whether or not these adaptive preferences can be labelled as autonomy impairments (Stoljar, 2014, p.229).
Stoljar argues that the adaptive preferences, or deformed desires, will count as autonomy impairments. In her article, Stoljar presents the model of freedom to do otherwise. With this model, adaptive preferences are viewed as adjustments which occur when options are limited and therefore have a limited freedom to do otherwise (Stoljar, 2014, p.232).
According to the model, preferences are nonautonomous if they fail the freedom to do otherwise conditions and thereby are shaped by necessity as opposed to free will (Stoljar, 2014, p.239). This condition is presented in the following way by Stoljar;
If I want to do x, and I am free to do x as well as free not to do x, then my want is not shaped by necessity and therefor is not adapted or nonautonomous.
For example; If a woman wants to be a surrogate, free to be a surrogate and free not to be a surrogate, then her desire to be a surrogate is not shaped by necessity and her preference in this case is not adapted which would make her desire autonomous.
Stoljar then presents another model to distinguish between autonomous and nonautonomous decisions – the psychological process model. This model claims that there is a difference between individuals adapting their preferences and deliberately adjusting their desires to their possibilities. Adaptive preference formation is described as an unconscious action taking place without the control of the agent and therefore should be considered nonautonomous. This is thought to be different from the psychological realization of not being able to do all of what you desire, and then deliberately changing those desires – thus deliberately, and autonomously, changing those desires (Stoljar, 2014, p.233).
For example, consider a woman who is brought up in a patriarchal society in which she is taught to think that giving life to children is her most important role and what she was born to do. Let’s say that this, as well as the notion that men are genetically made to be in power positions, be the breadwinners and provide for women, are strong cultural norms that is accepted by all of society. These norms are never questioned and social rules as well as laws and regulations are formed with this in mind. In this oppressive state, women might very likely adapt their preferences and shape them after how society is shaped and what they are, subconsciously, taught. What the psychological process model then says, is that there are also situations in which individuals deliberately, instead of subconsciously, change their preferences or desires because they consciously realize that they can’t get what they desire.
Here, we can make a distinction between preference change and preference formation, the former being deemed autonomous while the latter is seen as nonautonomous. The model of psychological process considers adaptive preference formation as nonautonomous since a blind and unconscious decision can’t be argued to still be an autonomous decision. But the model also clarifies that you cannot tell from only looking at the preferences alone whether or not they were formed or changed. If the woman raised in a patriarchal society comes to desire to be at home while her husband works, this could be the result of both learning and experience – or adaptive preference formation (Stoljar, 2014, p.234).
4.2.1 Stoljar’s Theory on Adaptive Preference Formation Applied
The principles of adaptive preference formation and freedom to do otherwise can in several ways be applied to the issues of surrogacy. For instance, a woman who feels pressure, subliminally or consciously, from her family members to help her brother and his partner to have a child, might feel her autonomy impaired through limited freedom to do otherwise.
It seems important to sort out what kinds of conditions that have the potential to make anyone not free to do what they prefer. I would argue that pressure from family members or society ought to be considered as one of those conditions and therefore also be considered an autonomy impairment. Even if the pressure from close friends or relatives won’t necessarily make it impossible for someone to act on their own free will, at least it would be considered a lot harder to do so. Susan Wolf considers something similar in Freedom Within Reason (1990). According to what Wolf presents as ‘The Reason View’, ability is a matter of degree, instead of an “all-or-nothing-matter”, much like autonomy (Wolf, 1990, p.86-87). So if we consider autonomy to be a matter of degree, by saying that a woman’s autonomy is impaired, we are not stating that she, or her decision, is nonautonomous all together, we are simply claiming that the decision is not fully autonomous.
Moving on to the psychological process model, and applying it to surrogacy, this model requires that we know whether or not a woman who desires to be a surrogate has deliberately made this choice or if she might have come to desire it ‘unconsciously’. Unfortunately, it is not very clear how to identify a preference formation versus a preference change, since it could be the result of both experience and learning, as well as something that has been formed under oppressive circumstances.
4.3 An objection to Adaptive Preferences as Nonautonomous
Donald Bruckner presents a counterargument to the notion that adaptive preferences would be considered nonautonomous or an autonomy impairment. Instead, he claims that adaptive preferences potentially can promote a more valuable life (Bruckner, 2009, p.314). What Bruckner wishes to do is to distinguish between adaptive preferences that are fully rational and worthy and those that are irrational and unworthy (Bruckner, 2009, p.308). To distinguish between these two types of adapted preferences Bruckner focuses on the agent’s own judgement of the adaptive preference (Bruckner, 2009, p.307).
Bruckner starts off by presenting one way in which we can view adaptive preferences. This view is dependent on what options the agent is capable of attaining, namely when an agent changes their preference based on that their feasible options have changed. This is shown in the Sour Grapes example, where a fox decides he no longer wants grapes he previously desired, since they are out of his reach. Instead the fox decides that he no longer wants the grapes on the basis that they are sour. Some would claim that the fox’s choice is irrational because it is nonautonomous (Bruckner, 2009, p.307). The reason for it being considered nonautonomous is because the fox did not intentionally change his preference, rather it was something that happened to him as a result of a ‘causal mechanism irrelevant to rationality’.
According to Bruckner, some would say that for preferences to be deemed rational, they need to be changed intentionally and through ‘deliberate character planning’ (Bruckner, 2009, p.307). Like Stoljar, Bruckner makes the distinction between adaptive preference change, and adaptive preference formation. The difference between Stoljar’s definition of adaptive preference change and adaptive preference formation and Bruckner’s definition of it, is that Bruckner believes that both can be rational choices. Bruckner argues that a lot of adaptive preferences that some would have called irrational, he instead considers fully rational and worthy of pursuing (Bruckner, 2009, p.308). According to Bruckner, what distinguishes an irrational choice from a rational one is whether or not the criterial judgement which the preference is based on, have changed as well (Bruckner, 2009, p.310).
This will be more thoroughly clarified later.
Bruckner describes adaptive preferences as preferences that change in relation to an agent’s feasible options. When an agent’s adaptive preferences change, this is the result of the agent’s set of feasible options changing. The set of feasible options can change in different ways, either expanding (increase) or contracting (decrease). Bruckner focuses on when this set of options contract, since this is when a person seems likely to be worse off than before because the agent is more limited. What is also important to note, is that the agent’s feasible options could contract but his desires can still stay the same, not adapting his preferences, even though they are unattainable. It is therefore not necessary for the agent’s adapted preferences to change in such circumstances, although it is likely to (Bruckner, 2009, p.308).
Bruckner presents an example to clarify his argument, in which an employee desires a new opening at his firm. This new position involves a pay raise and greater status for the employee, but also more time at the office and a lot more stress. The manager at his firm tells him that he is underqualified and therefore should withstand from applying, so the employee decides that he no longer desires the new opening. Instead, he considers the new salary and higher status to not compensate enough for the amount of stress and extra workload of the new position. This is a clear case of adaptive preference change and Bruckner argues, unlike some others, that this is a fully rational decision by the employee (Bruckner, 2009, p.308-309).
Bruckner’s definition of adaptive preference formation, on the other hand, is when the agent obtains a preference as a result of the content of the feasible set of options. To show this, Bruckner considers a daughter who is raised on traditional gender roles and is taught from an early age how to do domestic work while her male siblings are taught mechanical work.
To learn mechanical work such as how to repair cars is not within her feasible set of options and as a result she comes to develop a preference for what is attainable for her, which is domestic work. Bruckner argues, again, that this is perfectly rational for the young girl to do (Bruckner, 2009, p.309).
Bruckner wants to argue in favour of adaptive preferences as guides to our deliberation and as reasons for action, just like any other preference. If the employee changes his beliefs, or critical judgements, on what he values more – free time or a higher salary – then the adapted preference would be rational. That would also have to mean that if the manager would change his mind and tell the employee that he, in fact, is qualified for the job, then he still would not desire it (Bruckner, 2009, p.310). Bruckner also opposes the view of adaptive preferences as irrational and unworthy of pursuit (Bruckner, 2009, p.311-312).
Another example to distinguish between what truly is adaptive preference formation, and what is not, is the example of the son of a professional. The son desires a career as a truck driver, but is aware that his parents would be disappointed by this choice due to their cultural and social background. Let’s say that both his parents are in academia and they expect their son to make a similar career choice. Because of this, he decides to go to college and starts
to prefer his new path to his old desire of being a truck driver. Bruckner claims that this is not a case of adaptive preference formation, since none of the choices has been outside of the son’s feasible set of options (Bruckner, 2009, p.312). Bruckner argues that the pressure from family members is not enough to change the son’s feasible set of options and therefor it’s not to be considered a case of adaptive preferences.
4.3.1 Changing societal norms to enhance autonomy
I would oppose this view of Bruckner’s and claim that what really is of importance for the agent is not the feasible set of options, but rather the perceived feasible set of options. Even if it may seem like being a truck driver is attainable for the son of the professional, he is stopped not because he himself no longer desires it, but because of the backlash he would receive from family members for not choosing what is accepted in his cultural and social background. Thus, it may be a rational choice considering his alternatives and that he must value social acceptance over his desired career, but this can’t be an autonomous choice since it is not a self-governed one. Following this argumentation of perceived options, this could be applied to when family members become surrogates for one another. There could be difficulty trying to examine the social and cultural backgrounds behind family ties which in turn could result in women being surrogates for family members, not because they want to, but because carrying children and helping family members out is a preference that is formed from cultural background.
Bruckner claims that both adaptive preference change and adaptive preference formation has the potential to be not only rational, but also make the agent better off by changing or forming their preferences (Bruckner, 2009, p.313). The key word here seems to be potential, since this clearly is not the case in all situations. But I will agree with Bruckner that this could be the case for those that are involuntarily childless. For these people, it would be considered both rational and make them better off if they could form their preferences to no longer include biological children, or maybe children at all, but we don’t always act rationally. Even if those that are involuntary childless would recognize this as the rational thing to do, that doesn’t necessarily mean that they can change their preference. Maybe, they decide that they still desire a family, but this family does not need to include their own
biological child. They could adopt, or become a foster home to a young adult. They could also create a family by buying a pet together or they could dedicate themselves to work with youth or be a bigger part of their relatives’ children’s lives. The possibilities are endless for creating a family that does not consist of two parents and their biological child or children.
Even so, there will always be those who feel a great desire to raise their own, biological, children – but at the same time, for various reasons, are not able to do so. For most of these people, having a pet or having a close relationship to their relatives’ children won’t be enough. Rather, what I propose, is that changing the social norms of what a family consists of could potentially help some of the involuntarily childless people, and make them better off, even if they might not be entirely satisfied.
I would argue that there are societal norms about what the requirements for a family are, which causes a lot of harm to those that don’t fit into these family standards. Similarly, to what Gunnarsson argued for in terms of expanding the idea of a family by potentially allowing three or four legal parents, I argue that society has to change and be more open for different life choices so that the people who don’t fit into these norms don’t risk being harmed. We will never be able to give everyone who truly desires children, but are not capable of having their own, what they want. Even though I certainly think that we should try to help those that are involuntarily childless out the best we can, it’s not evident that the solution to this is surrogacy.
I want to make clear that family norms are not the only reason for people to desire being parents to their biological children or why women want to become pregnant. Of course, there are women who desire not only to be a parent, but to experience being pregnant and feel that it is a fundamental part in what it means to be a woman. It will be extremely painful for these women to have to accept the fact that they will not be pregnant, and also might not be parents. However, the state prohibiting them from the use of a surrogate or they’re own reproductive inability to have biological children are not the only reasons for them being harmed. Rather, I would argue, that what is truly harmful is the culture behind the idea that pregnancy is a fundamental part of being a woman, or that having a life without kids, especially as a woman, is meaningless. We are also slowly moving away from traditional ideas of gender and acceptance for transwomen, women without a uterus or non-binary
people is only growing bigger. It is therefore crucial that we work toward a paradigm shift on the ideas of family and reproduction in relation to gender roles and what it means to be a man or a woman.
People who are not able to have children but desires them to such a level that life would seem meaningless to them without children, could potentially be victims of adapted preference formation. Just like some would argue that vulnerable, patriarchal, conditions in society should be considered an autonomy impairment for women, this could also be true of family norms. This does not mean that the current family norms of society are always, to all people, at all times an autonomy impairment. What it does mean, however, is that there is a risk that those who feel the need for children, so bad that they would like a woman to selflessly carry and give birth to their child either with compensation (and be exploited) or altruistically (and be harmed without compensation) are deprived of their autonomy from societal norms and perceived feasible options of attaining a meaningful and fulfilling life.
4.4 Surrogacy legislation as demeaning
Some would say that the act of surrogacy in itself is demeaning and that this should be dealt with by the state making it illegal. In his paper Selling Organs and Souls: Should the state prohibit ‘demeaning’ practices? Dominic Wilkinson opposes this view, stating that the truly demeaning act would be if the state prohibited surrogacy. Wilkinson means that most people of his own opinion would argue this by claiming that the practices are in fact not demeaning at all. He himself will take on a different approach in his argumentation and assume that surrogacy and other acts like it, in fact are demeaning – but still prove that this does not conclude that the state should make it illegal. More specifically, Wilkinson would say that such laws, like the banning of surrogacy, which restrict our autonomy and ability to govern our own moral integrity are inherently demeaning (Wilkinson, 2004, p.27).
First, we need to define what it means that an act or a law is demeaning. Wilkinson believes that we can look at being demeaned in two different ways; to be demeaned in one’s own eyes and to be demeaned in the eyes of others. According to Wilkinson, to be demeaned is partly dependent on a person’s own view of themselves and the meaning that someone gives to their own life. He says that, for instance, an adult would be demeaned if they are treated
as a child. This entails that what is demeaning or not is mostly subjective and that what is demeaning to me, may not be demeaning to you. The second way of looking at it would be how we are demeaned in the eyes of others. Here, Wilkinson suggests that this is done in a similar way but instead of your own views of yourself it’s about how you are viewed by a wider society, making it a more objective perspective (Wilkinson, 2004, p.28).
Wilkinson asks if we can justify that the state prohibits demeaning practices done by individuals which is demeaning only to themselves (Wilkinson, 2004, p.29). To make the issue clearer, Wilkinson presents an example in which a rich man with a desire to eat human organs puts out an ad to see if anyone is interested in selling body parts and/or organs for him to eat, the act will also be broadcasted. A young man, Lucius, is interested in the offer since he would like some more financial freedom and they agree that Lucius will give the cannibal a kidney and his left arm. Lucius will have them removed in surgery done by a specialist and the cannibal may do with them whatever he pleases as long as he pays Lucius a great amount of money (Wilkinson, 2004, p.29).
Can this be deemed a choice? Or can we argue that a person who is not in an economically vulnerable situation would agree to give their arm to some stranger? Maybe we could if the person, in this case Lucius, who is willing to give up his arm for money don’t see much value to his arm and don’t care about living a life without it. We could easily imagine a person giving up all of their hair for a good amount of money and the only difference between these two situations could be argued to be that cultural norms in society today makes a difference between giving up hair and an arm, since a person would be considered disabled without his arm but not without his hair. Many would argue that disability is only relative to what society requires of us to live a worthy life. If these requirements changes so that nobody would need their arms to live a fully functional, ordinary life then maybe we could see this as not exploitive to the person giving up his arm. The problem is, we don’t currently have those requirements in society. And we can’t take this outside of a social perspective without societal norms in consideration. A person with only one arm would be considered disabled and would also live a considerably harder life in society today than a person with two arms would and this needs to be included in the equation. Similarly, harm that is done to a pregnant woman today is inevitable because of how society works. In
Sweden a woman who is pregnant would lose a considerable amount of money in pension from being on maternity leave and would also risk unforeseeable damage done to her body during labour. These damages and risks, and because some of them are unforeseeable, would make it harder for a potential surrogate to be able to make an educated decision since she cannot foresee the exact damages done to her and might not know the amount of risks she is agreeing to.
There is also the risk of the fundamentals of a market such as the relationship between supply and demand can cause harm when there are risks of exploiting. Wilkinson cleverly describes Lucius as only interested in more financial freedom so that there don’t seem to be a problem of someone desperate for money doing something they don’t desire in order to survive. If someone that is less fortunate than Lucius also came across the same offer, there could be negotiations involved that would make the deal even more demeaning and exploitive. A person which has a personal financial crisis may be desperate to get the deal and agree to less money or let the cannibal remove his organs instead of a specialist surgeon.
Wilkinson says that there are a number of arguments to put forward on why we should stop Lucius from making this decision such as that it could be seen as worrisome that people who are poor or mentally ill are exploited or that cannibalism is intrinsically wrong.
However, Wilkinson questions if the fact that Lucius is demeaning himself is the reason why we should stop him from selling his arm to a rich cannibal (Wilkinson, 2004, p.29).
I would argue that this might be true for altruistic surrogacy, but in the question of commercial surrogacy this does not apply. Letting surrogacy be unregulated on a free market will be more demeaning and cause greater autonomy impairment than the state would by prohibiting it. To believe that surrogacy could be a paid service like any other, without causing harm to surrogate mothers is naive and reckless reasoning.
Wilkinson sees a difference between choices that are non-autonomous because the decision- maker is incapable of making rational choices, and rational people making irrational choices. With this in mind, he argues that the latter does not justify intervention from the state, unlike the former (Wilkinson, 2004, p.30). Wilkinson comes to the conclusion that
there are several ways in which we can regulate society to decrease risk of demeaning practices, without prohibiting it by law. Instead, he suggests that there must be something wrong with a state if there are ‘economic necessity, social inequities or isolation’ which lead people to partaking in demeaning practices. To counteract this Wilkinson proposes actions such as education in philosophy and ethics, promoting debate on the value of human life and why commodification can be problematic. He finishes by stating that these options are favourable since there is no place for laws that prevent self-demeaning behaviour in order to preserve individuals’ moral integrity (Wilkinson, 2004, p.31).
5. Conclusion on autonomy and the definition of an autonomy impairment
If we accept what Mackenzie claims, that gender oppression in society today is an impairment to women’s autonomy in variating degrees, how does this affect women and their decisions? Are all women, if considered oppressed because of their gender, then autonomously impaired? And how does this influence a woman’s behaviour and reasoning?
Even if we do accept this it seems impossible to make laws based on the fact that women are sometimes or always, not absolutely autonomous. Furthermore, autonomy seems to be something that does in fact belong on a scale instead of an absolute condition that implies that an individual is either autonomous or is not autonomous at all.
The Council argued in favour of altruistic surrogacy, claiming that prohibiting women from becoming surrogates would be harmful to their self-determination. Based on Mackenzie’s definition, this would mean that a ban on surrogacy would limit women’s freedom and opportunity, such as the opportunities women need in order to make choices on who they are and on their values. Looking back at Hanna’s claims on how paternalism is criticised for forcing values upon individuals, this doesn’t necessarily need to be the case if women’s autonomy is reckoned to be one of these values that a ban would protect. The Governmental Investigator, on the other hand, claimed that women’s self-determination is threatened by not respecting the mater est-rule. Gunnarsson then also argued that any feminist version of allowing surrogacy requires the mater est-rule to be protected, stating that self- determination and autonomy can’t be reduced to a single choice made at one specific point in time. Instead, Gunnarsson held that, for the autonomy of surrogates to be protected, this
choice needs to be able to change which means that the power of the intendent parents needs to be reduced.
It seems like the fact alone that commercial surrogacy potentially can exploit women and make them believe that they desire or agree to be surrogates because they are desperate for money is not enough to completely prohibit surrogacy by law. There are certain jobs with exceptionally hard conditions that are needed in society and where the worker might have to take certain risks, such as jobs in construction, healthcare or cleaning jobs, that require hard labour and takes serious toll on the body and at the same time don’t pay very well. Of course most people who are willing to take on such a job are either young or low educated people with a limited financial freedom. To try and keep these desperate people safe from too much harm and give them reasonable working conditions the state can inforce laws which protect workers and puts pressure on companies to withhold certain standards such as a maximum amount of time an employee can work without requiring a break, how many hours should be free for employees in between shifts and the minimum amount a person should be able to make an hour. What these kinds of regulations does is it protects workers from getting themselves into desperate conditions. I propose something similar in the case of surrogacy. If women are to be compensated this needs to be heavily regulated by the state and not be a commodity on a free market.
5.1 Are restrictions of autonomy inevitable?
Much like Thaler and Sunstein argued that paternalistic actions are inevitable, it seems like however we choose to act, the reproductive autonomy of women will in one way or another be restricted. If we choose to work towards less exploitation of women by prohibiting surrogacy, we are making that decision for all women – even those who truly by free will would like to be surrogates. On the other hand, if we legally allow all kinds of surrogacy, we might also allow the exploitation of women who may tragically choose surrogacy because of poverty or family pressure.
If this statement is true, if surrogacy makes impairing women’s autonomy inevitable, the right way to go seems to be to weigh the costs and benefits of surrogacy against each other in order to hopefully find the option that is in, most people’s, best interest. The difficulty
here is to know how to weigh different autonomy impairments against each other. In the earlier section where we examined Mackenzie’s theory on autonomy, we recognized that she claimed that autonomy is multidimensional, and that autonomy should be considered in different ways, in different situations. This sounds fairly reasonable, and in theory we would probably be best off if we considered all factors and how they affect each and every individual in their decision-making, and whether or not they are acting autonomously.
However, this causes problems for when we contemplate paternalistic action on state-level.
We could of course try to install governmental assessments, similarly to what the Council proposed, of each and every individual that wishes to engage in surrogacy, either as a surrogate or as intendent parents, but without a clear pattern for the governmental workers that will actually perform the assessments, the decision-making process in this situation risks becoming arbitrary.
6. Concluding remarks
It’s important to stress that in this essay we are only looking at the problem of surrogacy through the lens of autonomy. To conclude that surrogacy should or should not be legally allowed has only been argued for in the perspective of respecting autonomy and the right of self-determination. This means that my conclusion is only based on the aspect of whether or not surrogacy is an autonomy impairment or not, and if so – should it be legal? With this said, I urge that the issue of surrogacy is carefully examined through several perspectives, the autonomy of the women involved being one of them.
The aim of this thesis was to settle on whether or not surrogacy ought to be allowed in the perspective of women’s autonomy. The conclusion seems to be that however we choose to act, the autonomy of women risks being harmed, and that weighing these risks of harm against one another is not an easy task. What I wish to make clear is that even if there is only a risk of harm done to the surrogate or the child or even the intended parents, this risk of harm needs to be weighed against the potential gain of a system that would help involuntary childless people to have children. In the issue of autonomy, the weighing should be done by comparing the autonomy impairment of prohibiting women to carry children for others and the autonomy impairment of women who risk being pressured into, or for any other reasons, become surrogate not because it’s what they desire, but because it’s expected of them or the harm that is potentially done to a woman who changes her mind throughout her pregnancy or after giving birth.
I would also argue that there is an autonomy issue which in the discussion of surrogacy is often overlooked, namely the potential preference formation of the intendent parents. Of course, the surrogate, especially within commercial surrogacy risks facing serious autonomy impairment, but through studying the issue of surrogacy I think it is interesting what we have come across when we take a look at the people who wish to use the services of a surrogate and what autonomous risks they face in preference formation, and how they are to deal with their feasible set of options decreasing.
I want to make it very clear that I greatly sympathize with those that struggle to become parents. However, the women who might feel that life without children is meaningless
