Intersectionality and the Ethics of Transnational Commercial Surrogacy

Critics of transnational commercial surrogacy frequently call our attention to the race, class, and cultural background of surrogates in the global South. Consider the following sampling from the critics: "the women having babies for rich Westerners have been pimped by their husbands and are powerless to resist" (Bindel 2011); our "rules of decency seem to differ when the women in question are living in abject poverty half a world away" (Warner 2008); and we should worry that "women of color are easier to commodify" (Smerdon 2008, 51-52). Critics suggest—rightly, in my view—that the race, class, and culture of Southern surrogates matter to the moral acceptability of transnational surrogacy. But how, precisely, do the race and class of Indian surrogates change what is morally at stake in a practice whose domestic iteration is criticized primarily for its entrenchment of sexism?

One way to understand the moral import of the race and class status of Southern surrogates involves what I call "intensification analysis." The intensification thesis supposes that gender oppression subjects all women to qualitatively similar harms and that race and class oppression increase the severity of those harms. I argue here that intensification analyses, if they are intended as exhaustive, miss two sorts of morally relevant effects surrogacy has on Southern women. First, they miss ways in which race and class subordination can mitigate negative welfare effects of being a commercial surrogate. Second, they miss what I call "qualitatively intersectional" harms to Southern women—that is, qualitatively distinct harms that arise from being subject to race and class-specific gender stereotypes. Specifically, intensification analyses miss the ways in which poor Indian surrogates are less likely to be taken advantage of than their Northern counterparts and are more likely to reap significant financial benefits. Intensification analyses also miss the ways in which surrogates and other marginalized women are harmed by being subjected to qualitatively intersectional stereotypes. Indian surrogates and all women of color are harmed by the stereotype of women of color as lacking an interest in noncommodified affective relations. Indian surrogates and poor Indian women are also harmed by the interlocking caste and gender stereotypes about impurity. I will advocate an intersectional analysis of transnational surrogacy that brings these two types of considerations to light.

My aim here is not to offer an all-things-considered judgment about the moral acceptability of transnational commercial surrogacy. It is, rather, to help us get nearer to a list of the considerations relevant to rendering such a judgment. I am particularly interested in the question of how race and class oppression of Southern surrogates weigh on questions about the moral acceptability of the practice. Two trends in critical discussions of transnational surrogacy suggest we need a clearer sense of how race and class are morally relevant to whether the practice should continue. First, the philosophical literature that focuses on surrogate race and class tends to alert us to the ways in which transnational surrogacy takes advantage of existing structural injustices—such as global economic inequality and the disproportionate allocation of dependency work to women of color (see Bailey 2011; Donchin 2010). Though I agree with these analyses, tracing the practice to unjust background conditions does not tell us whether that practice ought to be allowed to continue—especially given that those unjust conditions are likely to persist in the short term.

Second, the popular literature that is critical of transnational surrogacy tends, despite mentioning that Indian surrogates are poor and may lack better options, to rehash the traditional moral worries about surrogacy in the North (see Warner 2008; Zakaria 2010; Pet 2012; Vora 2009). These worries are about retrenchment of gender stereotypes, subjection of women to potentially dangerous and traumatic experiences, exploitation of gendered vulnerabilities, commodification, potential surrogate autonomy loss, and so forth. This strain of critical analysis of transnational surrogacy tends to argue that surrogate race and class worsen the traditional vulnerabilities associated with surrogacy—typically by claiming either that Northerners are extra likely to inflict the harms of surrogacy on Southern women because of their "otherness" or by claiming that Southern...