By: Molly Rubin
In her paper and symposium topic, Things that Money can Buy: Reproductive Justice and the International Market for Gestational Surrogacy, Rutgers Law Professor Kimberly Mutcherson advocates for countries to adopt a realistic perspective in the international surrogacy market by treating it like the commercial transaction it undeniably is. To ensure reproductive justice for all, Mutcherson focuses her argument specifically on the marginalized population of the surrogate mothers. While Mutcherson is careful not to overlook the other exploitation and fairness concerns inherent to international surrogacy, she looks specifically at the typical path of a surrogate mother in underdeveloped nations.
Mutcherson acknowledges the unique obstacles surrogates face in the trade, where they encounter not only the expected monetary concerns of typical laborers, but also deal with various emotional and health concerns along the way that are inherent to the intimacy of the relationship. Mutcherson applies Michael Sandel’s theory of corrupting and coercive markets to her analysis of the female body and its unique intersection with domestic and international surrogacy. The coercive market, Sandel asserts, results from vast, deeply-entrenched inequalities that force marginalized groups into exploitative work in order to survive or gain some minimal degree of power. A corrupting market, on the other hand, has the effect of diminishing or corrupting certain socially acknowledged moral and civic goods by commodifying them.
The critical difference is that a coercive market can be ameliorated if the background conditions improve whereas, in a corrupting market, this is an utter impossibility. Mutcherson is aware of the argument that international surrogacy occupies both spaces, but evinces mild distaste for the idea that it is a corrupting market and therefore should be banned altogether. Mutcherson injects into the debate a cold dose of reality: while treatment toward women and their bodies is less than ideal in the international market, the potential it has to improve the women’s economic conditions outweighs the corrupting damage it could inflict. Furthermore, Mutcherson argues, the emotional dimension presented by surrogacy is not universally true and should not alone dictate the existence of surrogacy. In other words, countries should accept this type of labor as a stern reality and adapt to make the treatment of women as favorable as possible by improving the background conditions.
Mutcherson argues that in order to put an end to coercive markets in countries where surrogacy is legal, adequate labor protections should be enacted to protect these women. Specifically, Mutcherson envisions surrogates should be supported by advocates who negotiate contractual terms; should be fully aware of all the possible risks of entering into such an agreement including the possibility of having to keep the child themselves; are given fair wages for their work; agencies should be held to high ethical standards where they can be held both civilly and criminally liable; that contracts should never demand women should have abortions; and that they should be promised post-birth healthcare for a reasonable amount of time.
While I respect the intelligent and carefully crafted views of Professor Mutcherson as espoused in her presentation and equally impressive paper, I do raise a few concerns over her overall framework for the future of surrogacy. I have the same moral trepidations over surrogacy that Mutcherson expresses but draw the line sooner than Mutcherson seems to. I believe that if domestic surrogacy is to remain a reality—which I believe it is—then we should have the same realistic approach we do toward other morally controversial issues, such as abortion. If the activity would persist even if legally banned, we should legalize it for the purpose of ensuring safe procedures. However, I would suggest limiting this legalization of surrogacy to only first world countries that do not use surrogacy as a way to continue the oppression of certain groups, as in the example Mutcherson provides of India. I believe international surrogacy presents an enhanced danger in these countries as it perpetuates women’s marginalized positions without the hope of any concrete forward advancement. At least in countries like the U.S., Britain, and Israel, equality between the sexes is much more a reality than in other countries where international surrogacy currently exists and works to continue the oppression of women.
 Kimberly Mutcherson, Things that Money can Buy: Reproductive Justice and the International Market for Gestational Surrogacy; Amrita Pande, Wombs in Labor: Transnational Commercial Surrogacy in India (2014).
 Michael Sandel, What Money Can’t Buy: The Moral Limits of Markets (1998), The Tanner Lectures on Human Values.
 Supra Mutcherson note 1.
 Elizabeth Anderson, Is Women’s Labor a Commodity? 19 Philosophy & Public Affairs 71-92 (Winter, 1990).
 Supra note 1; Roxane Gay, Bad Feminist: Essays xii (2014).
 Gene Correa, The Mother Machine; Barbara Katz Rothman, Recreating Motherhood; Elizabeth Anderson, Is Women’s Labor a Commodity?; Angela Campbell, Sister Wives, Surrogates and Sex Workers 97 (2013).