In today’s episode, UVA Law 3Ls, Makenna Cherry and Meghana Puchalapalli join me to continue our discussion with Lancaster University professor Stephen Wilkinson. Wilkinson is a Professor of Bioethics, Associate Dean for Research for the Faculty of Arts and Social Sciences, and Chair of the University Research Ethics Committee.
Much of his work is about reproductive ethics and the regulation of reproductive technologies, especially the ethics of selective reproduction. A book on this topic (Choosing Tomorrow’s Children, Oxford University Press) was published in 2010. Since then, particular interests have included ethical issues raised by uterus transplantation, non-invasive pre-natal testing, mitochondrial replacement, new sources of eggs and sperm, genome editing, surrogacy, and public funding for infertility treatment.
Another abiding interest is the commercial exploitation of the human body, which was the subject of his first book, Bodies for Sale (Routledge, 2003), which we discuss in this episode, together with his 2016 article, Exploitation in international paid surrogacy arrangements, which appeared in the Journal of Applied Philosophy.
Professor Stephen Wilkinson Bio, Lancaster University: https://www.lancaster.ac.uk/ppr/people/stephen-wilkinson
Exploitation in international paid surrogacy arrangements
Wilkinson, S. 05/2016 In: Journal of Applied Philosophy. 33, 2, p. 125-145
Bodies for sale: ethics and exploitation in the human body trade
Wilkinson, S. 2003 New York : Routledge. 248 p. ISBN: 9780415266253 .
Kim Krawiec: I feel like I am even more skeptical of this argument than you. I'm less generous than you are, I guess, and I'm starting to think repeatedly now after these podcasts, that philosophers on the whole are just more generous than lawyers. Hey. Hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Krovic. In today's episode, we continue our discussion with Lancaster University professor Stephen Wilkinson. Wilkinson is a professor of Bioethics, associate Dean for Research for the Faculty of Arts and Social Sciences, and chair of the University Research Ethics Committee. Much of his work is about reproductive ethics and the regulation of reproductive technologies, especially the ethics of selective reproduction. A book on this topic, Choosing Tomorrow's Children, was published in 2010 with Oxford University Press. Since then, particular interests have included ethical issues raised by uterus transplantation, noninvasive prenatal testing, mitochondrial replacement, new sources of eggs and sperm, genome editing, surrogacy, and public funding for infertility treatment. Another abiding interest is the commercial exploitation of the human body, which was the subject of his first book, Bodies for Sale, which we discuss in this episode. Together with his 2016 article Exploitation and International Paid Surrogacy Arrangements, which appeared in the Journal of Applied Philosophy. We next had a series of questions about payments. Let me turn to Jen.
Jennifer Scoler: Hi, Steven. I was wondering whether you can envision a hypothetical base agreement that would be objectively fair based on compensation and treatment of the surrogate and that most willing people would be willing to consent to, and whether such an agreement, if you could think of one, would alleviate the consent concerns that you raised in the paper. And if you think such an agreement could exist, what would it look like? And I asked this, recognizing the fact that these types of base level agreements would likely be very difficult for the government to oversee and enforce.
Stephen Wilkinson: Okay, thanks. Well, in principle, definitely yes, I can. And I think you could have a sort of model contract or standard contract, which would have a number of elements in it. I think obviously, it would have to have very high quality consent processes and lead back to use of third party guides or by impartial advisors at the outset. I think there would have to be some model to prevent sort of unduly onerous conditions around during pregnancy and so on. So interference in the health care of the surrogate or the lifestyle of the surrogate, I think would have to be sort of controlled get to get to an acceptable level. And then there was a number of different options that could be in there, which would just there needs to be clarity, really, around what happens if this agreement to various points between the parties. And I think there's more than one model for that. So we necessarily want to be very prescriptive about that now and then in terms of baseline agreement and then you have to have some sort of, I think, range of acceptable levels of compensation and perhaps it's a different question that will come on to later of how much that would be and how you work that out. But yeah, I think it would be best if there was some sort of minimum to prevent exploitation and the maximum also perhaps to prevent a different kind of concern about the stratification and extreme commercialization. So I'm aware at this point and this goes against some of my instincts I'm aware at this point that you could possibly make these sort of points about absolutely any kind of contractual arrangement. And there are well known sort of practical difficulties about how to make that work out and afford it, the transaction costs and so on. I think in the case of surrogacy, I think there are some features about surrogacy that mean that it is worthy of some sort of special treatment and also also in order to keep it, in order to sort of respond to the ethical concerns that people have. I think this is one way of doing it, to put it into the sort of regulated situation where I think everyone can feel if you feel safer about what's going on, I imagine that would also be attractive to a large number of people who want to use surrogacy services. Perhaps not everybody, because it will inevitably cause some cost, extra cost. So there might still be a constituency that wants to go for an average cost option or to escape all sorts of regulation or have requirements outside that. So there's also that constituency. But I think sort of in the UK, for example, when people use reproductive healthcare services, I think they're glad that there's quite a strict regulatory regime and that there isn't really a very free market, because it just gives them that sort of security and safety, because it's the area that people tend to only interact with occasionally as consumers, if you like. And so perhaps they have a lot of expertise. So I think gives some security on both sides. That's the sort of initial attempt anyway.
Kim Krawiec: To sketch stephen, I'm not even sure that I would classify most we'll come back to the maximum question later because there are some questions about that, but most of the proposals that you just sort of sketched out there? I'm not even sure that I would classify them as special treatment because there are very few industries that have no regulation whatsoever. So health and safety and wage regulation are common features of all sorts of industries. And to me, to say that this is an industry that could use some of those features doesn't really market as being special in any way. Although, of course, the specific regulations would have to vary based on the industry and the people in question. But to me that's a fairly common feature of most markets.
Stephen Wilkinson: Yeah, I think that's right.
Kim Krawiec: We have another question from Jen also related to pay, and I think that.
Jennifer Scoler: You partially answered this question in your response to my last question, but I guess more generally, are sea agreements always bad and exploitative? And it kind of seems like your answer is going to be no. But I guess specifically in cases where women don't feel compelled to engage in circuit to sustain herself and her family, maybe this extends more generally passed to the international circuit concerns that you raised in your paper. But in your opinion, what are the circumstances where seriously, agreements, if they exist, could be society beneficial and not exploitive or harmful to women?
Stephen Wilkinson: Yeah, I think the key points are going to be making sure consent is good and high quality consent, ensuring that the way it's actually done in terms of professional practice is high quality. So again, involving doctors, nurses, healthcare professionals, getting to follow professional guidance and yeah, levels of pay, I think making sure that levels of pay are not sort of unduly low. There's a number of ways I haven't got determinant answers how you fix the level of pay, but it shouldn't be incredibly hard, or at least no hard. I mean, what people get paid for things is actually a very hard ethical issue to work out. If you think particularly if you're trying to go beyond the market and think about what's a fair rate of pay for a particular product or service, and lots of people have debates about whether certain professions are underpaid or overpaid and so on, you could take a very marketed view and say, well, the market would just determine all fair. But if you don't do that and you think that there's some scope for kind of external ethical values to be applied to this generally setting wage levels, it's hard. Most places have got many places got minimum wages, or you can look at averages. I did actually, for the sake of this discussion, have a quick look at what minimum wage if you gave somebody a 24 hours a day minimum wage in where you live in Virginia, my Google search suggests it's $11 an hour. So that to me comes out at something like 73, $74,000. If you give people 24 hours a day for 280 days of pregnancy, that's not a ridiculously high amount, it seems to me, from this side of the Atlantic. I mean, it's not low, but it wouldn't completely destroy surrogate. It was a practice. Maybe you think that's too generous, but you shouldn't be paid while you're asleep and carrying a child. I mean, there's all these more practical questions. 24 hours a day minimum wage would give you that 70, $74,000 for 280 days. So that that's that's that's a starting point. People might come in and say that's too low. They might come in and say it's too high, but it but it's not like we're starting from nothing, so we can make those comparisons and have the sensible sufficient about what would be reasonable.
Kim Krawiec: So related to that, Caroline had a question.
Caroline Gozigian: Hi, Steven, you actually started to get my question, your previous answer, so this is at all, feel free to let me know, but my question is in this section about pay considerations, you discussed how all surrogates were paid the same wages across every country. It would likely price out the international surrogates. But if pay is driven by locality standards, then arguably Indian surrogates are paid well. So striking the balance of what would be appropriate compensation seems difficult, as you were just alluding to. So if there's anything to add, what do you think is an appropriate form of compensation that would bring coercion and the circuit's level of consent less into question?
Stephen Wilkinson: Yeah, I think there might still be some things to say about that. So, first of all, as you alluded to, obviously making international comparisons raises a number of issues and there's different ways we could do it. We could look at how the pay sat in relation to perhaps the local average or something like that. I think if someone's well paid for me, I know this is contestable, but for me that more or less completely takes away the exploitation worry. There might still be other worries about whether the practice is safe, about whether it's fully consensual or so. But I think the exploitation worry in its sort of pure form is that combination of a concern about consent and a concern about low pay. I think we can do a lot by making sure people are well paid. How well paid they have to be is up for grabs. Is it twice the average wage? Is it three times the average wage? If they're well paid, though, I think that takes the pay concern out of the equation. Except you might want to come on to this later. There's potentially a worry about paying people so much that that's sort of the strange thing to their consent process. But I think a relatively generous pay level will assuage most concerns about exploitation. But of course, given the huge disparity between, say, the US and India in terms of average take in cash terms, it could still be cheaper for people to use Indian Indian surrogates. But then you might just say that's how the global economy works there's. Lots of goods are imported to the UK, europe and the US from China. One reason for that is that they're very cheap. So you might just think that's part of that global trade and as long as the other ethical issues are dealt with in the ways we described earlier, then that's okay.
Kim Krawiec: So, Stephen, to put I guess, a finer point on Caroline's question, and this is not your argument, it's an argument that others have made and that you're addressing in your paper. What is the basis for the concern that Indian surrogates are underpaid? Because much of what I read is just comparing it to, for example, US payments. And that seems to me to be not a helpful comparison. Is there another basis for making that claim? Because if there's not, I am a little skeptical that Indian surrogates are underpaid to begin with. I'm happy to entertain that argument, but I haven't seen the argument articulated in a way yet that I find persuasive.
Stephen Wilkinson: No, I think I'm inclined to agree with you or not. I'm not saying there were no cases where they were underpaid, but the ones I've seen by local standards doesn't look to be unattractive. So I suppose the two things I look at is just a comparison to local averages and local norms. And if it's significantly above that, then there's an argument for saying that's not underpaid and also from the perspective, the surrogates themselves. So that if you if it looks like by far the best economic option that they have, then perhaps, perhaps they're not underpaid. So I think there is a fairly strong argument saying that we should readily assume anyway that they're underpaid and just because it's not the same as they paid in the US or another much wealthier country, that doesn't on its own, I think, justify the claim to pay.
Kim Krawiec: So we're going to turn to Ryan you've brought up a couple of times and alluded to in answer to other questions, the notion that compensation could be too high, and Ryan and Ryder both have questions about that. So let me start with Ryan.
Ryan Fitzgerald: Hi Steven. So I found the argument that increased pay could actually deteriorate consent to be quite interesting. And as you note in the article, increased pay would assist those who are currently involved in these surrogacy contracts, but at the same time could weaken the voluntariness of the consent by making an increasingly attractive alternative to poverty for women in these countries. So do you think that there is a way to possibly balance these seemingly incompatible issues? In other words, is there a way to make it such that consent is always voluntary while still ensuring these women are compensated properly? And one of the things that we talked about from class was is there a, I guess, right motivation for engaging in surrogacy? And is money the wrong one?
Stephen Wilkinson: Yeah, the question of motivation is interesting. I don't think money is the wrong one in the sense that I don't think it's unethical to become a surrogate mainly or even wholly for financial grounds, as long as you've got due regard for the other parties involved and as long as you're otherwise unethical. Yeah, I don't think there's particularly a problem for me with that motivation. I mean, in some of these areas, in some areas of contested trade, there is this argument that certain things should only be done for altruistic motives. Surrogacy could be one of those. I don't find the argument convincing in other fields, such as organ donation and blood donation, I find it similarly inconvincing in the case of surrogacy. I guess my question is is there a right motive? I don't know. Maybe one could concede that altitude motives are kind of, if you like, extra good sometimes as long as they're directed in the right way. So perhaps that's sort of a very nice motive to have but I don't think it's a morally obligatory motive to have just give someone a gift when you're not required to. You might think, well, that's a kind altruistic thing to do, but it's not something you're morally required to do. So it could be that some of this is like that just as I could do free things for anybody if I felt it was being generous. So back to your earlier point about yes, again, I mean, I'm largely skeptical about this argument that the very high rewards necessarily invalidate or problematize consent the paper. I spend quite a lot of time trying to tease out what people mean by this because it clearly is something that some people do think and try to identify what the source of the issue is. Mainly trying to I'm broadly skeptical about it. I've given it a little bit of credence. But I'm fairly skeptical about this argument that if rewards get too big, you can't validly consent. The example which you'll be familiar with on the paper is if you're in a scenario where you only have two choices you have very unpleasant sort of medical treatment which will save your life or you die. Well there are very few options there and the quality, the quality of the option, the quality of the medical treatment option is incredibly high compared to the other option but I can still validly compare to it. Similar another example would be well, if my employer I go to work freely for wages if my employer suddenly said you're doing a great job if you like to have twice as much money or five times as much money. I can't see that there's a sort of really serious consent issue there. I don't think what was voluntary today would become involuntary tomorrow because that was paid more. That seems like a really odd view. However, when I was teasing out this argument in the papers, I was trying to make sense of it and some of the ways in which you might make sense of it are as followed. I mean one is that there might be something about hugely attractive monetary offers which people find psychologically hard to deal with. So it might be that some issues where I'd say gambling up a bit like that as I realized there might be a more complicated addiction type behaviors there as well. But lots of people in my country buy lottery tickets. They've got practically no chance of winning a million pounds but they may actually fixate on this million pounds and think so it might be there's something about the possibility of huge financial rewards inclines people not to reason well about things. So that's one possibility. Another possibility, which I mentioned in the paper is that perhaps people tend to overestimate the utility value of money to them or the value of money to their quality of life because of issues such as the diminishing marginal utility of money. So people might think if I had a million pounds or a million dollars, I'd be incredibly well, I'd be happy and my life would be perfect forever, when that's unlikely to be true, although it would probably be better for living in poverty. So it might be that people have got false beliefs about the link between money and well being. But of course, if you're desperately poor and it definitely would be lots of good to have false of money and I'm not sure that is a fallacy in that case. So I'm skeptical about the argument. I'll stop there.
Kim Krawiec: So I'm going to turn to writer with a follow up. But I guess before we do that, sticking with Ryan's question for a minute, steven, I feel like I am even more skeptical of this argument than you. I'm less generous than you are, I guess, and I'm starting to think repeatedly now after these podcasts, that philosophers on the whole are just more generous than lawyers. But this just strikes me as this notion that we have to balance the coercive effects with the exploitation worries strikes me as being a completely untenable argument. There's two choices it seems to me, right? First of all, it's not possible to reconcile those two things, right? And therefore no amount of pay satisfies this objection. In which case proponents of this view are being, I think, somewhat disingenuous. They're opposed to surrogacy, they're not actually concerned about the price at which it's taking place and they're just not saying that. The other possibility is that there's some magical goldilocks level of pay that's neither so high as to be coercive nor too low as to be exploited and that that amount can be discerned by the government rather than the marketplace. And that to me is a Looney Tunes argument. And so I think you are a very generous critic, I guess is my short version of that little digression.
Stephen Wilkinson: Yeah, I mean that's a very clear position. I've got a lot of sympathy with it. I suppose that a lot of that methodologically, a lot of my work in this area has been to look at arguments which I think are quite bad and to sort of try and make the best of them in order to understand why so many people find them compelling. Because these are arguments which are regularly used and there is a principle of charity there. So I'm thinking, well, surely so many people can't be wrong. Particularly often many well informed people actually invoke these arguments to think, well, they can't be wrong. So let's just try and look and see what's the best possible version of that argument. That's quite a philosopher's method as well.
Kim Krawiec: And it's a good method. It's funny because for us, we're like, oh, that's a weak argument, let me bat it out of here. Right.
Stephen Wilkinson: I think there's room for room for and it should just add, I think, the point you make that I think many opponents of paid surrogacy are either sort of covertly or overtly opponents of surrogacy. It sort of seems easier to argue against paid surrogacy, or they might say, well, that we can stop paid surrogacy and if we do that, then it will stop, at least stop the expansion of the practice. Even if there's a bit of surrogacy, at least they won't become widespread if we don't have the paid version.
Kim Krawiec: Yeah. So let me turn to writer with a follow up question about the high pay issue, which, Steven, you may know, these are all third years on their way to high pay very shortly.
Stephen Wilkinson: Yeah.
Reidar Composano: So it's going to be hard to follow up with Kim's criticism of this entire argument, but I think that something being too good to resist. I've considered that a lot. I'm about to graduate and go to big law and work long hours for high pay. And I guess I'm just curious. Obviously the woes of my legal career are distinct from a service arrangement. But do you think whether irrespective of whether or not this is a good argument against the international service gas, do you think that this should be a consideration and at least part of the conversation yeah.
Stephen Wilkinson: So specifically around whether Page should be kept allows them well, having just heard kids comments, I mean, I'm sort of feeling more robust about this now.
Kim Krawiec: They disagree with me all the time, Steven. They're constantly telling me that I'm wrong.
Stephen Wilkinson: There might be ethical reasons to limit high pay. I mean, largely there will be more sort of either efficiency arguments you don't need to pay people that much in order to get the things you want, or egalitarian or utilitarian arguments about distribution of wealth. Generally, I think in my country there's lots of criticism of overpaid people in top of business or government and lots of critique. And conversely, there's lots of talk about people working in social care and nursing and soldier underpaid. Lots of people are going on strike here in the UK, loan, paper pay and so on. So it's a hot potato, politically and ethically. So I think there are reasons to think about not paying people more than a certain amount, but I don't think those reasons, generally speaking, to do with the quality of their consent or the fact that think about legal careers. You might ask the same questions about legal careers. Does it matter if somebody goes into the law for money rather than for the love of the law? I mean, that's the sort of question we're asking in the case of surrogacy. And you might know what people think about that. But, yeah, as long as they do the job well, both hiring you, as long as you're doing the job well and acting ethically within professional guidelines, then whether you did it because you loved the law or because you love the money, I wouldn't be too bothered. I might slightly prefer it if you love the law because I might get a slightly different conversation with you. But, yeah, I don't think it will be unethical for you to be doing it for the many and most people. Most people work primarily for monetary reasons, not because they love their jobs.
Kim Krawiec: I have neglected to point out that at least one student here, Mary, will be drastically underpaid shortly because she's going into public interest work. She is doing it for the love of the law or of her clients. Yeah, go ahead.
Reidar Composano: Writer so something you just said, another question that I have. Do you think that there is some connection between when you talk about the love of the law and the quality of the work? Do you think that that idea is translatable to the surrogacy context where, you know, maybe people are going to be higher quality surrogates if, you know, there isn't such high pay that it's almost an irresistible offer?
Stephen Wilkinson: Yeah, I mean, it's an interesting yeah, it's an interesting potential parallel. I mean, I haven't met and spoken to a few people who have been surrogates for non outside the commercial framework. People have received expenses, nothing else, and they spoke very positively about the experience of being a surrogate and about the positive relations that they had with the families that they helped create and so on. So I suppose you could there could be an argument that some people who are purely commercially motivated, people who sort of want to do it for their own reasons, would be less good at it. But I guess what we're comparing, if we're thinking about a situation where there's a shortage of people who want to be surrogates, I guess we're comparing. And it's all very well to have this as a gold standard, but if there's a shortage of surrogates and many prospective parents need surrogates to help them down the family, then it might just be that paying people to do it is the only way that you'll get them to do it. And the alternative might be not having the surrogate at all. But anyway and that was just speculation, obviously, about how people's motivations may feed through to the service. And of course, in commercial surrogates, ending the relationship might not be as close between the surrogates and the intended parents. And maybe some intended parents don't want that closeness.
Kim Krawiec: Maybe some surrogates don't. Right. I mean, some derive satisfaction from it and actually some report that they find it quite overbearing and an additional part of the job that they just don't need. It's hard enough without yeah, it could.
Stephen Wilkinson: Pile on additional emotional exactly burdens on them.
Ryan Fitzgerald: Yes.
Kim Krawiec: Okay, let me turn to Brian. He had a follow up about the issue of diminishing marginal returns.
Bryan Blaylock: Hey, Steven, just to go back to the diminishing marginal utility of money and its effect on a surrogate's welfare. The example that you used in the article was a surrogate may believe that 50,000 is ten times better for her welfare than 5000. Can you talk a little bit more about how the diminishing marginal utility of money can affect the validity of consent? Because it would seem this would affect every monetary transaction everywhere in the world, not just those involving surrogates or even those involving great wealth, disparities or unsophisticated parties. Yes, I think the last thing you said was completely right. Yeah. I think this is another example of perhaps being quite charitable towards this argument. So I think ultimately I would agree with you that if this point stands at all, then it will stand for any sort of monetary office that won't just be for surrogates. But since we're talking about surrogacy in the context of the paper so we're just trying to unpack really what this concern is. What is the worry that people have around sort of extra high extra high payments? So I do think it applies across the board, whether it applies in terms of what the fundamental I think you initially asked me what the fundamental point was and how this relates to consent. I suppose the thought would be that very large monetary offers can affect people's decision making quality in a number of ways. So one of them is to say they might discount the diminishing marginal utility of money. So I think probably if you offer people large amounts of cash, they may well think that it would have a greater positive benefit from their course of life that it really will. And that's sort of like a reasoning defect. And that could be I mean, I think that's unlikely to completely invalidate consent, given that it's a sort of structural feature of the way people think about money, but they could do in very extreme situations. But as you say, I think this is going to apply to economic transactions across the board. So ultimately surrogacy on its own doesn't get singled out for a particularly negative treatment as a result of this argument.
Kim Krawiec: Yeah, I think that's what I keep coming back to, Stephen, as we discuss this, it is entirely possible that there are a whole range of economic transactions where we should be taking better account of the way in which the monetary incentives are structured and the way in which they impact informed consent and are not doing so. And that could cut both ways. Right? I mean, either we should stop singling out surrogacy and say, look, it's just like most types of jobs where we influence people with money. That's the whole point of paying them. Or it should cause us to say, and maybe it. Should, especially in a variety of fairly dangerous professions and activities that people engage in for pay, that we should be thinking harder about the ways in which those are structured and whether we should be looking at them differently. And very few people have taken up that call outside of these types of taboo trades and repugnant transactions that we talk about in here. But, I mean, arguably it applies to all sorts of settings. Okay, we had some questions about the other working conditions of surrogates beyond just the pay. So let me turn to McKenna.
Makenna Cherry: Hi there. Talk about quick answers. This may be a quick question, but I know you mentioned in the paper, and something that really stood out to me was that it was common for Indian surrogates to have to get cesarean sections to meet the schedules of the couple that they are providing for. And that point kind of disturbed me a little bit. Is this only common in India or like, international surrogacy cases? Or is this something that also commonly occurs in Western surrogacy as well?
Stephen Wilkinson: I can't really speak to the commonness of it internationally. I mean, on the ethics of it, I think that's definitely one of the problematic features that we want to screen out of the Addison of the Fair Trade ethical surrogacy model, unless it's the free choice to have the option. And I think the guidelines that I alluded to earlier around surrogacy, I think, make it clear that these are decisions that must be made. Thinking primarily about the welfare of the prospective child and the surrogate and the convenience of the intended parents shouldn't really come into picture. So I can't comment much on the frequency of that, but I can certainly say that I don't think it's a feature that we should commit. It clearly seems to be far too heavy a price to pay just for the convenience of the intended parents.
Makenna Cherry: Yeah, I guess I was just wondering if it was more unique to international surrogacy because of the whole, like, maybe planning to go to another country for the birth or maybe that requires more scheduling than an intercounty surrogacy. And if so, what does that imply?
Stephen Wilkinson: Yeah, my recollection from discussions that took place at the Canadian Conference that we were talking about was actually yeah, that is the case just because people often want to just sort of jet in and collect the baby and jet. And so that gives them the rationale for having to have a predetermined birth time. But obviously, yeah, if you're in the same country, those issues of logistical convenience would not come up to the same extent.
Kim Krawiec: Hey, Marley.
Marley Peters: Hi. When I was reading the article regarding sufficient information, a lot of the reasoning reminded me of my class in family law, where the parties undergo the process of drafting a prenup and how, specifically, how a wealthier spouse can pay for the less wealthy spouse to have representation and a lawyer in order to ensure that there is adequate consent in the agreement. And it seems like this kind of structure could also be something that applies for circuit. I'm trying to figure out if that already exists in international circuitry regarding making sure people have legal representation or if that's like a requirement in some countries or in general what the discussion is on that.
Kim Krawiec: Thank you.
Stephen Wilkinson: Yeah, well, in general terms, I think there are models in other areas of law and regulation that we can call on it, and the one you allude to might well be an example of that. So requiring and funding independent council and representation for both parties would be part of best practice. And if we did have a sort of fair trade surrogate, I think making sure that there was someone there at the outset to represent the interest of the surrogate would be vitally important. In terms of how common that is, I couldn't give you a sort of empirically informed answer. I imagine it's by no means universe of an international surrogacy. I don't think it's going to be something that is happening everywhere, but also ethically. I think if we're going to have a fair, sustainable sort of surrogacy system, then something like what you mentioned would be an important part of that.
Kim Krawiec: Writer also had a question about contracts.
Reidar Composano: Yeah, so I'm kind of going to go a little off script here and go with a different question about contracts. I'm just curious if you encountered during your research any instances where there were disputes about these contracts and also just how contract disputes play into your thoughts about service, whether international or generally what role they play and how they are handled, especially with respect to the power differential between the parties in case of international surrogacy, how those disputes should be handled.
Stephen Wilkinson: Yeah, well, I think as I lead to in the paper, I think looking at the sort of British cases anyway where UK abused international surrogacy, I think this number of serious disputes is relatively rare. But of course, when they do happen, they're extremely serious and they can be quite sort of highly publicized. I can't give you precise figures, but I think it's relatively rare in terms of how to deal with them. I think a lot of that work has to happen upfront really in terms of having high quality consent, clearly drafted contracts, legal advice. Clearly there'll be some cases where people do change their mind. That is one of the big problem scenarios in the regulation of surrogacy. And the big question particularly is should surrogacy contracts, in particular the sort of parental rights based on the transfer of parental rights, should that be fully enforceable? Should those contracts be fully enforceable, or should there be some provisions to allow an override, either because the surrogates has changed their mind and for reasons connected to their welfare or for reasons connected to the child welfare. There's some UK legal reform work going at the moment. We haven't actually seen the final bill yet, so contracts are enforceable in the UK. I think it looks like the proposals are that they will remain unenforceable, or at least that the parental rights aspects of them will remain unenforceable, but there will be some other aspects around payment and some which are enforceable. So I'm yet to see quite what that drafting looks like. Of course the surrogacy contracts aren't enforceable then you might think it's good for one party in the transaction, but not the other. It could also be bad for surrogates in the sense that it might make surrogacy a less attractive option for intended parents. And in a marketplace it could reduce the value of surrogacy services because there's that degree of uncertainty around it, so people might think they're not willing to pay as much. You could have that effect anyway, but I don't think I have an answer to your practical bit of your question, but those are the sorts of issues we'd have to grapple with.
Bridget Boyd: I was wondering how surrogacy agencies typically find women willing to be a surrogate either in India or any other country. And I asked because if the advertising is targeted at women under financial strain, it seems to implicate the concerns with coercion and exploitation. But if it's more through word of mouth, which we discussed in class, it kind of seems to go in the opposite direction if friends and family are recommending this process.
Stephen Wilkinson: Yeah, I think this is probably one of the questions that I probably didn't have a great answer to in terms of I don't think I know how advertising in fact takes place. And as a ethically, there are going to be pros and cons to different approaches on that. Part of me wants to say that it's a good idea to have the advertising process in a way could form part of the whole consent journey. So you'd want the advertising to meet regulatory standards around sort of accuracy and so on, not to be misleading and not to make promises that run realistic and so on, but I think that is probably answerable to the same ethical questions and concerns that other forms of advertising after businesses. But I'm afraid I don't have really the insight into how advertising actually takes place on the ground.
Kim Krawiec: I tried to look it up, I can't remember where I saw this. I thought I had written it somewhere. But when I went back and read this morning the paper that it seemed most likely I would have put this, I didn't find it. But I do recall reading percentages on the number of surrogates who were found through word of mouth and specifically where that word of mouth came from, which was mostly family members. And to me that seemed very relevant to these questions. Right. Because it suggests that even ex post, sort of with full knowledge of the experience, many surrogates are recommending it to other women in their family as something that is worth doing. Which seems to me to be relevant to some of the questions that we've been talking about here today in terms of consent and exploitation and how surrogates actually feel. People like Amrita Pend and others have done some really good ethnographic work on Indian surrogacy and it's certainly not uncomplicated. Right. But at the same time, there are these stories that suggest some level of knowledge and satisfaction and a willingness to do it again and have others that, you know, do it again.
Stephen Wilkinson: Yeah. And that would be a very rich source of information compared to advertising brochure or video, then talking to somebody who's done it would be I mean, if I was to be a surrogate, this is the first thing I want to do, I think talk to some people who've been surrogates and find out. So if it's a family member, then that will be a great source of information, right?
Kim Krawiec: Exactly.
Marley Peters: I have a question about the development of the three elements of consent regarding sufficient information capacity or competence and voluntariness. Where did these aspects come from whenever you were writing your article?
Stephen Wilkinson: Yeah, that's a good question. That model of valid consent, which I don't really argue for here to sort of adopt, is a very, very standard sort of medical ethics view of what it takes for consent to be a valid consent. And I don't have enough of a scholar of the history of informed consent to tell you exactly where all those bits come from, apart from this incredibly prevalent use of use. I look at something very originally in that model and I suppose sort of reverse engineering it. I've always found it's a really helpful way of categorizing the things that can go wrong with the consent. So if any sort of defective consent example you can think of, normally there's a way of getting it under one of these three headings has the person got all the information that they ought to have? Is it presented in the right way? You can elaborate a little bit on these things in terms of the quality of the communication, so on. Has the person got their skills, competence, capacity, mental capacity to make a decision? And that mental capacity, it might vary depending on what the decision is. Some decisions are hard for another. So someone with quite significant dementia, for example, might be able to might have capacity to choose what they eat, but they may not have capacity to decide on their medication. And finally, voluntariness, which is quite a volunteer, is a harder one to unpack. I suggested in the paper that normally voluntariness issues are often to do with commercial or manipulation, but those concepts and turn off are quite complex, especially in manipulation in particular, which we haven't talked about much, is very hard, I think, to characterize a methodical concept. So it really just gives you a schema. These are the three types of things that can go wrong with consent. But if anybody came along and said, here's the course that we need to add into the model, the first three can't catch you, we're very happy to sort of listen to that. And that would be an interesting kind of conceptual discussion to have about what consent is.
Kim Krawiec: So Stephen, arguably because now I'm going to do the philosopher's trick of being generous instead of the lawyer's trick of being an asshole. So the issues regarding compensation that we've been discussing here could conceivably go both to voluntariness. If we adopt the definition of coercion that some others have as well as to sufficient information, if we accept, as I think we would, that large amounts of money, or money that is structured in particular ways can impact the decision making environment, So money could affect at least two of those three. Does that sound right to you? Okay. And I don't see it affecting capacity or competence, but maybe I'm missing it.
Stephen Wilkinson: I think there is a version of the high pay argument, the argument that puts forward concerns about excessively high pay that probably does allude to capacity incompetence because it says that very large monetary offers render people incapable of making a decision. I don't think that's a good argument, just adding it. But it's a conceivable argument that does support under that heading that does relate to capacity incompetence. But you're completely right. The core home for the worry about financial inducements, which is a good word to bring in, actually, because inducements is often used by people who put forward this argument is what does it do to voluntariness? That's the key concern. And secondarily, the thing about information it's.
Kim Krawiec: Empirically true that payment alters the way in which we analyze our choice set. And there are ways of addressing that. Now, there may be some cases where it's so severe that the only real alternative is to terminate trade or disallow the transaction, but that's not usually what we do most of the time we have mandatory disclosure. We have requirements of representation or counseling. We may have delayed payments so that people are not confronted with an immediate lure of a big payment. We space it out. So there are lots of things that we can do. Whereas it seems to me that if we're claiming that something is coercive, well, coercion is bad. You're just supposed to stop doing it. It doesn't really leave us with any options other than stopping trade.
Stephen Wilkinson: Well, there's a distinction often made, isn't it, between inducements and undue inducements? I guess that's where in search ethics what we talk about. So inducements are okay, inducements that are undue. Inducements are okay. They're just like incentives and possibly rewards or something like that. It's this concept of undue inducement and then the question is what makes it undue? And normally it's to do with one of these other things related to consent, and it could be manipulation, or it could be coercion. I mean, manipulation would be sort of exploiting in another sense of that word, people's excessive desire for money or something like that. You can imagine what manipulation is, but often offers are said to be coercive. But again I see.
Kim Krawiec: So to them, is labeling something an undo inducement, a showstopper, or is the answer, and therefore we should search for ways to make it not undo by changing the amount of it, by changing the type or level of information that's provided to people, or changing the decision making framework in some way.
Stephen Wilkinson: Yeah, I think the response would be if you've got an undue inducement, then either you can reduce it to make it less of an inducement, or you can add other contextual factors like the ones you just mentioned. So that's another way to go. But I think one where you have about inducement, that's not a word I use too much, although I can see why. I think it's useful because of this slight equivocation. So I think sometimes people take inducements to mean undue inducements, and the sort of language does the arguments for them too quickly in a way, they think, well, there's money involved. It's an inducement, and so it's an undue inducement. I think that's probably too fast. So, yeah, I'm not sure talking about inducements, if that's incentives would be a word I'd rather have, although that's more specific because that's talking about a particular function that the payment has there. I think that's what my take on inducements anyway, I still think I'm probably happy to go back to these more fundamental things about consent in order to distinguish undue inducements from inducements of okay.
Kim Krawiec: We next have a series of questions about prohibition, regulation, and the international landscape. So rahima.
Rahima Ghafoori: So, Stephen, to the extent that you're able to, could you talk about some of the similarities and differences between regulating sex work and regulating surrogacy? Because to me, at its most basic sense, both forms of labor involve women engaging in a market with their bodies in whatever way they choose. But the end results and benefits of these transactions seem to be what marked them as legal or illegal. And so what are some of the lessons to be learned from the total prohibition of sex work, for example, some of the underground markets that develop as a result?
Stephen Wilkinson: Yeah, that's a nice question. I think there's perhaps two types of answers. You've already alluded to think to one type fund we might give, which is that there are some general structural questions raised by prohibition or restrictive regulation, which is you do get issues around gray markets or underground practices, people trying to escape the regulation or the prohibition. And so there's that in common. If there was a complete ban on surrogacy, for instance, have been met typically by, well, either underground surrogacy domestically or international surrogacy, people have used international surrogacy arrangements not just to save money, but because in many countries they can't access it at all. Prohibition of sex work or surrogacy or illegal drugs. There's all similar structural issues there in the sense that if you do have a prohibitive race regime, then that may not work. And if it doesn't work, then you'll possibly get more harm and the involvement of organized crime and those sorts of things will kind of creep in. So there's that sort of very general point, and I guess otherwise could you repeat what you said? You think you said something more specific there at the beginning about the similarities between sex work and so I guess can you just repeat that again just to help me?
Rahima Ghafoori: Sure, yes. To me it seems like both forms of labor involve women engaging in a market with their bodies in whatever way they choose. But those end results and benefits of these transactions seem to be what mark them as legal or illegal. So in terms of sex work, I guess you could argue that there is no benefit to society in that sense, whereas surrogacy is seen as altruistic and bringing children into the world.
Stephen Wilkinson: Yeah, okay, that's great. Yes. So again, I should add that I'm doing this in the spirit of entertaining arguments and sort of just taking them seriously up and necessarily putting forward my view. So I guess what might say with respect to these two prep, as you mentioned, there's a sort of bodily aspect to both, doesn't it? So I guess that would raise perhaps more deeper philosophical concerns about whether women are being treated as bodies or as objects. Objectification might come up as a concern compared to, for instance, having a legal career for money, being a surrogate or being involved in a sex work. It is much more bodily dimension to that. And it's also a bodily dimension, particularly in the case of sex work, but possibly across both as a sort of sexual reproductive dimension which many people think ethically charged sort of area of human conduct. So they have that in common. They're both bodily. And this there's a sort of obviously a gender dimension of the fact that it's women who are being potentially objectified there. I'll go back to other comparators here and say that there were other forms of labor which are bodily. I mean, there were bodily aspects as many forms of labor. Even typing on the keyboard involved some bodily interaction. But people involved in sports, in moving furniture, in models, people in emergency services, military, coal miners, all these people. There's a very significant bodily aspect to their work and in some cases more than others, perhaps you might want to say there's a risk of objectification or people being treated as bodies of space. I don't think sex work and so they're not uniquely bodily. There are other kinds of occupation which are bodily. So it's definitely worth putting that on the table to say. I don't think they're sort of unique in that respect. Another thing that you alluded to as well, I think it's worth teasing out, is what is the end of the practice? So, I mean, I suppose you might say that surrogacy this will depend on what you think about creating extra people. Because actually one critique reproductive technology is that there are already too many people think about climate change and so on. And so we shouldn't be spending money on creating new ones. We should be using that resource to improve the lives of people already on the planet. That's an argument. It's not my argument, but it's an argument people do before. But if you didn't think that, you might think that creating new babies and new families is a kind of socially valuable good, and maybe people don't want to be as positive about sex work. I mean, I'm not sure they're necessarily right about that, but it depends on the sex work, depends on the precise context. There could well be socially positive functions or quality of life functions, or parties, even, in that scenario. But I imagine creating babies will be an easier sell, if you like, to the audience, than sex work as something that's socially valuable and therefore deserves some sort of resourcing as opposed to prohibition. So that's a possible distinction. We need to know a lot more about the details of the case, I think, to be able to be confident about that. Thanks. It's a nice question.
Kim Krawiec: One of the things I liked about Rahima's question is she laid out sort of the American paradigm, and perhaps it's the UK paradigm as well. I know less about your regulatory regime, but in which sex work is broadly illegal and stigmatized, and surrogacy is broadly legal and either not stigmatized or at least less stigmatized, but it is precisely the opposite in much of the world, and perhaps most of the world, which actually prohibits surrogacy and permits sex work. Now, I'm not going to suggest that sex work therefore is not stigmatized in those countries. I think it probably still is. But there is a cultural dimension to what we think, I think is the social value of the end product in these cases that's reflected, among other things, that's not all that drives the legal regime and legal differences. But I thought it was worth pointing out that the answer to that is going to vary depending on where you're from.
Stephen Wilkinson: Yes, absolutely. Whenever I talk to European colleagues, and yes, Ins is just completely banned in many European countries. So, I mean, UK is relatively permissive on most reproductive things compared to continental Europe.
Caroline Gozigian: Caroline, my question relates to your discussion of the several reasons why a prohibition on international surrogacy may not be the best option overall. So the first reason you provide being that even if impoverished women's consent to be surrogates are defective, we have a good reason to accept their consents, and to do otherwise would further restrict the range of options. The second being that a prohibition of international surrogacy might drive it underground, as you were just discussing, and the third reason being that there is a less draconian alternative to prohibition, which would just be improving paid surrogacy practices in the commissioning parents home countries. So I'm curious, of these justifications, what do you find the most compelling, and is there one that is generally considered the strongest among other researchers in this area?
Stephen Wilkinson: I think the answer to the last question is probably no. I don't think there's a huge consensus on this. I think there's a variety of different views around in terms of what I find most compelling. I think the last one, I wouldn't describe myself as extreme libertarian or anything like that, but I think I do think that if we're going to prohibit a practice, we need to have a very strong rationale for doing so. And so start off with the assumption that people know what they're doing and should be allowed to to exercise their autonomy in these areas. And prohibition should only kick in when there's a strong reef. So I think if you've got a sort of less invasive, less restrictive option, which would be this sort of fair trade regulation model, I think that's always the first thing to try before you move to a prohibited regime. It's like sort of an intervention that if things are fine, then do nothing. If there's an issue, then perhaps start off with the least invasive and the most autonomy respecting option. And so regulation, fair trade and regulation are the way to go. That hasn't really been tried yet, and if it's tried and it fails, then at that point we might want to consider other options. If I had to choose, all the arguments work. I think they all push in the same direction. But if I had to choose, I'd say probably that's the main one, that we shouldn't be prohibited unless we have to be. And there's this other thing we could do which would not only be less invasive but also probably be better in terms of and this is moving on to the other argument, prospective surrogates welfare. Because they can still get the income, they can still have this option, but they can just have a better version of what they have had. First one.
Kim Krawiec: So we had a couple of questions on international agreements from Ryan and Mary. Why don't we start with Ryan?
Ryan Fitzgerald: Yes, you've discussed kind of base pay agreements a little bit, but in the section on paying conditions, you know that it should be or it should at least be possible to deal with the standard arguments against international paid surrogacy by enforcing improved pay conditions. I'm curious, however, if without some sort of broader global agreement I think you mentioned the Hague Children's Convention as an example to improve pay, if there would be some sort of like a race to the bottom issue. In other words, if there's not a global agreement to increase pay across the board, would it not be the case that when payment for Sergey in one country increases, commissioning couples would begin to look toward cheaper alternative countries and perpetuate the cycle?
Stephen Wilkinson: Yeah, they could do. I mean, this is somewhat speculative on my part, but I'm not sure that pay is going to be the primary driver of which country people select. I mean, one reason for that is because if you're talking about intended parents from relatively rich countries, then it may be that there's quite a wide range of pay which will make very little difference to them from a financial perspective. And it may be the other costs, such as transport costs, hotel costs, doctors costs, agency costs, local legal costs, all of those things may be massive compared to the actual pay that surrogates get. So it may be that in practice, how much you pay a surrogate, even if you paid in our case, even if you pay the Indian surrogate ten times what they now get, it might not actually make a huge dent in the overall cost of the package to the intended parents. So that's one thing. The other thing is, I think there'll be other issues about quality of life, safety, confidence around the legal system and the medical system. I think when parents, or when prospective parents who try to use them obviously going into this situation, obviously it's not that money will be no object for them, but I think the reputation of the country, what kind of place is it that they're going to and they're not going to want to take chances with their child. They may do this once, they may do it twice, but I don't think they're going to want to cut corners on that. So I think other factors part of the service pay will probably make more difference to both the cost of the offer overall, but also it'll be non financial factors as well that really drive where people go and facilitative regulatory regime in both countries.
Kim Krawiec: I think that's a good point. Price is not a completely irrelevant variable. But like you, I doubt that it is the most important one for most commissioning couples, who usually are fairly far down their journey of attempting to conceive by the time they turn to international surrogacy and are primarily concerned about the probability of receiving a healthy child that is turned over to them and admitted into the country and all of those things at the end of the day and are perhaps willing to pay more in order to assure those things. And I think that some commissioning couples would in fact be willing to pay more to ensure that their surrogate is treated well if they felt that they could get good verifiable information about that and really trust that the extra money they're paying is going to. The surrogate, which is hard in all global trade, not just surrogacy. Mary?
Mary Talkington: Yes. In your conclusion, you noted that if international paid surrogacy is allowed to continue, that it's important the state actors and international bodies, such as the Hague Conference on Private International Law devise agreements and regulations that would do things. Like ensure that surrogates have a fair minimum wage, that the contractual terms are transparent and not entirely onerous, that living conditions and health care are decent, and that the legal status of any children that's created is clear. You also note that there's a serious barriers to achieving this. In your opinion, how likely is it for such international cooperation to actually happen?
Stephen Wilkinson: I would say reasonably pessimistic, partly because getting international agreement over anything is very hard because of the way politics works and world politics, labor politics. And also yeah, I mean, we talked a little bit about competing values earlier, didn't we? But I think there are going to be sort of competing ethical values here, with some countries being very opposed to surrogacy across the board, so and others having a more permissive positive attitude. So I think that sort of diversity in values will probably make it really hard to get a very comprehensive international agreement. So I'm not looking at how global politics works for other issues, some of which are much more, you might argue, pressing than this one, even. Yeah, unfortunately, I'm not very optimistic about that, I have to say.
Kim Krawiec: Thank you. So the last two questions are from our co hosts, McKenna and Megana. Let me start with McKenna.
Makenna Cherry: Hi, again. So I noticed that the paper mentioned perhaps making surrogacy laws less strict in the domestic Western countries would alleviate a lot of the challenges of international surrogacy. But that also had me wondering, why is it that countries like the UK and certain US states, why are they so hesitant to uphold these contracts, but then at the same time allow for international surrogacy to occur? I guess to me it seems kind of hypocritical. And our professor brought up some points about lake plasma donation that's among a similar comparator. I just thought it was interesting.
Stephen Wilkinson: Yes, well, I imagine that the reason why this inconsistency or seeming inconsistency, is just that the position we have now has not been designed. It's just sort of grown up piecemeal from different aspects in the UK situation. I don't think what's in the UK situation, for example, is international surrogacy tends to be recognized de facto because parents come home with the child. And we've got a principle in English law called the paramount the welfare of the child, which means that if the child is with parents who seem to be the best available option for it, courts will just say, yeah, okay, you can become illegal parents. So it's a sort of pragmatism there, I don't think it's as if the country has taken an intentional action and sort of endorsed international circuits. It's just that these people are turning up with babies and we need to do something with them. So that's how that's happened. And then we have our own, and then we've got our own because of specific laws around domestic. So I guess if we could be more facilitative, it probably would enable and maybe come more facilitative in the next few years, depending on whether it would take parliamentary actions for that to happen. But it could happen, in which case that might mean that there's a greater number of domestic surrogates. That's how this grown up here, unless well placed to comment on the US. But my guess would be perhaps the same with it. Whether Kim wants to comment on that.
Kim Krawiec: Yeah, I think it's quite similar, and it's one of the things we discussed in class often, if you want to prohibit something child labor, right. We prohibit it here. And the only way, and it's imperfect of attempting to enforce it from outside would be things like import controls. You can't import things from particular countries or you can't import them unless they've been certified as meeting these criteria. But you can't really do that, although some countries have, when people just show up with children, because then the result is that these children are stateless or they have to remain in this other country that doesn't want them. And that actually has happened in a few cases. I thought that France was one of them, mostly around same sex parents, and nobody thought that that was a good outcome, I think. And so the fact that we are dealing with humans who are not at all in any way responsible for the circumstances of their birth makes enforcement of stuff like that a bit hard in this case, I think. And Megana final question.
Jennifer Scoler: Yes.
Meghana Puchalapalli: So I am curious if you think that there will be a rise in demand for international surrogacy in our post office world. And just for context, Dobbsby Jackson Woman Health is a Supreme Court case that came down this past summer that determined that there was no constitutional right to abortion.
Kim Krawiec: Right.
Meghana Puchalapalli: So I'm thinking that, like, women who have preexisting medical conditions that make pregnancy risky may not want to risk getting pregnant, especially if they can't afford to travel to a different state for abortion care. So how could this change the discussion around international surrogacy?
Stephen Wilkinson: Yeah, it's an interesting question. I mean, my answer would have to be speculative entirely, but I imagine you've identified a category of people for whom surrogacy will either interstate, presumably in the US. Because some states will have more facilitative abortion laws than others, won't they? Or international it could give people a reason to use surrogacy in those contexts if they're very worried about the fact they couldn't have an abortion if they wish to have one. But that's yeah, that's the best I can do, really, in terms of speculating on the answer. It's an interesting category. I don't know whether there's any evidence of how great that demand could be.
Kim Krawiec: But it certainly it does seem unlikely that anyone who can't afford to travel to another state for abortion care would nonetheless be able to afford international surrogacy. Nonetheless, it could have an impact on people who were already on the fence or something about which route to go. Even last minute thoughts you want to close with?
Stephen Wilkinson: No. Well, it's been a good discussion. I think that methodological conversation we had was quite interesting in terms of the fact that I've been too kind in the papers for some of the arguments. And in particular, I think in the case of paid surrogacy, as we mentioned earlier, normally if you look at any feature of paid surrogacy, you can normally find some practice which is accepted, which has that feature. And so I don't think there's anything sort of unique about it, although it's a unique cluster of features. I just think we need to see it in the light of the way we think about commercial transactions more broadly and apply standard ethical considerations to eat, as we do to everything else.
Kim Krawiec: Well, thank you for joining us today. This was a lot of fun, and it was fun to see you.
Stephen Wilkinson: Anyway, thanks, everyone. It's been great to meet you on really great good questions. And have a nice rest of day.
Kim Krawiec: Thank you so much. Bye.