Can Canada’s anti-commercialization stance towards surrogacy be justified? A (grudging) attempt.
Canada’s Assisted Human Reproduction Act criminalizes payments for surrogacy on the basis that payments are exploitative. Defenses of the non-commercialization principle in the Act have made further claims about payments being exploitative because reproduction or children ought not be commodified.
The non-commercialization stance has been critiqued on empirical and conceptual grounds. Empirically, surrogates in places such as the United States who receive payment do not seem to experience exploitation. Conceptually, philosophers have argued that commodification critiques and exploitation critiques ought to be separated. Once these critiques are treated separately, arguments in favour of improving working conditions and other problematic aspects of surrogacy might be preferable to address exploitation than criminalizing payments.
Can Canada’s non-commercialization stance towards surrogacy be justified? Drawing on feminist arguments (most notably, Anne Phillips’ work) that commodification undermines equality, I attempt to re-articulate a non-commercialization principle that resists the further entrenchment of norms of individualism that are pervasive in the ethics of assisted reproduction. I call this attempt “grudging” because some lingering questions about gender equality remain if surrogacy in Canada continues to be unpaid.