Reorienting the Ethics of Transnational Surrogacy as a Feminist Pragmatist

The issue of surrogacy has received a great deal of attention in the West ever since the famous Baby M case in the latter part of the 1980s. Ethicists, psychologists, and legal experts have struggled with the meanings and implications of this practice, especially in its commercial form. In contemporary times, however, the phenomenon of surrogacy has assumed new dimensions as it travels across national borders in the context of globalization. As a transnational phenomenon, it is now marketed as an attractive part of "Reproductive Tourism," for the most part, by various clinics and organizations located in the global south to some of the so-called "First World nations."

Until now, most of the philosophical literature on commercial surrogacy has been concentrated in ethics, and the dominant analyses have been through the lens of ethical paradigms such as reproductive liberalism versus the exploitation model.¹ Moreover, most of this scholarship originates in, and continues to be focused on, the practice of surrogacy in Western contexts. Over and above any inconsistencies that these approaches might have intrinsically, I argue that additional problems are encountered if we try to simply extend them to a transnational context. The transnational world of today with its ever-expanding markets demands new theoretical tools of analysis from ethicists and philosophers. In fact, looking at concrete lived situations within a global context such as transnational surrogacy can be very productive for Western ethical discourse to critically revisit its own theoretical resources.

In this article, I first critique the dominant Western ethical models available to us. I then develop a feminist pragmatist philosophical framework while engaging some work by Mary Parker Follett in social theory and conflict management. I argue that a feminist pragmatist model is better on several counts. It does justice to the lived experiences of the women concerned and presents us with a better phenomenology of oppression. At the same time, it is able to identify a new and more effective starting point of analyzing the problem itself. Finally, it provides us with thicker notions of "individuality," "agency," and "empowerment," compared to the dominant models. Therefore, I conclude that an ethical paradigm inspired by a feminist pragmatist consciousness can reorient the ethics on the issue in a way that is radically transformative, but at the same time, it can direct us with full sensitivity to our limitations as agents caught up in the realities of our situation.

In my use of examples, I focus on India, since it is considered to be the capital of reproductive tourism in contemporary times.² On an estimate published in Marie Claire, Indian surrogacy is considered already to be a $445-million-a-year business (Haworth 1). Certain clinics based in bigger cities like Mumbai, as well as smaller towns such as Anand, have become hubs in reproductive tourism for couples from North America, Europe, etc. In fact, The Daily Mail reports Dr. Patel of the Akanksha Clinic as saying, "[V]irtually every day . . . middle-class Western couples arrive at the clinic, hoping that an impoverished local woman will carry their child" (Dunbar).³ A significant number of surrogates working in these clinics are gestational surrogates.⁴

Of course, the voices of both the surrogates and the couples buying these services are represented in and mediated by various media sources, research studies, and often by people connected to the industry itself. In the light of this, we must not lose sight of the problematics of representation, translation, statistical analysis, and so on, in the task of engaging this issue. I think, however, that philosophical analysis can help us to broaden our understanding of transnational surrogacy, and transnational surrogacy, in turn, provides philosophers with a unique opportunity to critically engage and sharpen our ethical tools in the process. With this spirit, I undertake the current project.

Section 1. Limitations of Approaching Transnational Surrogacy through Some Dominant Ethical Paradigms

As mentioned earlier, most of the traditional Western philosophical literature on surrogacy focuses on the ethics of the practice—its right and wrong. The tendency is to either argue in favor of it or criticize and condemn...