A Libertarian Defense of Surrogacy

by | Dec 7, 2023

A Libertarian Defense of Surrogacy

by | Dec 7, 2023

pregnant woman holding dollar currency cash

Amidst announcements of gay conservatives having children by surrogate, commentators such as Michael Knowles and Katy Faust levied criticism against the practice of surrogacy in general. These commentators, however, get a lot wrong. Let’s examine each of the most prominent objections.

In a recent tweet, Michael Knowles states:

Michael Knowles is correct. Children are not property to be bought and sold, and they certainly are not for parents to “dispose of at will.” In fact, the standard libertarian position is in agreement with Knowles in this case. But, why does this apply to surrogacy? It is not the child, but parental rights that are bought and sold.

Surrogacy involves an agreement by the birth mother to carry another couple’s child to term. It typically involves a contract between the birth mother and the intended parents of the child. A surrogacy contract, known as a gestational carrier agreement, “is an agreement between intended parents and a gestational carrier and her partner/spouse.” Additionally, “These contracts can be compensated or uncompensated and are intended to detail the parties’ rights, obligations, intentions, and expectations in connection with their arrangement.”

There is no selling of a human being. The legal parents are determined prior to conception of the child. It is entirely appropriate to divide parenthood into component parts: parental rights and rights to children. If the rights to children were being exchanged, then it would be appropriate to say that “children are being bought and sold.” However, it is not the right to children, it is the parental right, which, under the current legal system, comes with it a number of rights as well as positive obligations to care for the child.

If rights to children were being exchanged, then it would be true that parents would have the right to dispose of their children however they want, but that is neither how the current legal system operates nor is it the libertarian position.

The child is never exchanged because the birth mother never had the parental right to begin with.

Surrogates may be paid, but just because money changes hands does not mean that people are being exchanged. A doctor that delivers a child is paid, is he not? OB-GYNs are paid, right? Does this delegitimize having a child? Not at all. Bottom line: all decisions to have a child bear a cost. Whether that cost is monetary or not should be irrelevant for ethical considerations.

Even marrying someone who wants to have kids is costly. It is not free. Marriage is purchased, and if future children are on the table, they are factored into the deal as well. Whether through monetary or non-monetary compensation, everyone pays their wife to have their child. Money does not dirty the relationship.

Simply put: The action of bringing a child into the world may be accompanied with monetary incentives, but this does not make the act illegitimate. By framing surrogacy as a market for children, conservatives are trying to invoke images of human trafficking, but this is far from the case.

Even in Murray Rothbard’s proposed “market for children,” people are not being bought and sold. What is being bought and sold are parental rights, not the children themselves. The children still have all the rights of a grown human being and the parents take on any obligation to the child that is legal and/or customary.

Some have levied the argument for adoption as a retort to Knowles, but in a follow-up, Knowles clarifies that “adoption doesn’t involve creating a child with the intent to deprive him of his natural mother or father.” While that may be true, this does not bolster the claim that people are being bought and sold. This deals with a different objection, one that we will now turn to.

But does a child have a right to their birth mother? No, they do not. The only way rights can be obtained is through homesteading or contract, none of which the child has done. The child comes into the world propertyless, save for ownership over their own body. To say that they have the right to the labor of a particular person is nonsense, but let’s consider this conservative point.

Activist Katy Faust, in her article, “The Conservative Pro Life Case Against Surrogacy,” stresses the supposed natural right of a child to their birth mother. Again, where does this “natural right” come from? It certainly does not stem from private property, so it must be rejected. She further states, “The child is the voiceless party in the arrangement who would never consent to the intentional loss of his or her mother.” So what? This does not prove anything. I may not consent to the voluntary exchanges of my neighbors, but they do have the right to exchange in spite of my consent. Consent alone is no basis for ethics.

In an attempt to defend their position on surrogacy, they end up arguing against in vitro fertilization (IVF) as Faust does. According to Mayo Clinic, IVF is the process by which:

[M]ature eggs are collected from ovaries and fertilized by sperm in a lab. Then a procedure is done to place one or more of the fertilized eggs, called embryos, in a uterus, which is where babies develop. One full cycle of IVF takes about 2 to 3 weeks. Sometimes these steps are split into different parts and the process can take longer.

According to Faust, IVF is utilized in most cases of surrogacy. However, traditional surrogacy, which Faust also argues against, does not involve IVF. Furthermore, the reasons for which conservatives argue against IVF, that the fertilized eggs will be frozen or will not survive the freezing and thawing procedure, is not present in all cases of IVF.

As Faust laments, data is scant, but the little data that is present on this affirms that there are in fact many surrogacy procedures that involve IVF, but not all involve freezing and thawing cycles; only about 30 percent involve these cycles. More work needs to be devoted to responding to criticisms of IVF, but regardless of the efficacy of IVF, conservatives should not criticize surrogacy, but instead focus on IVF if that is their real problem. Even then, not all cases of IVF involve the problems they associate with it.

Faust further cites a twitter thread about the cons of surrogacy. The original poster, Jennifer Lahl, stresses the harm on the surrogate mothers. Which may be true, but if the mothers agree to it, they also agree to bearing the risk. This makes any claim about the effect of the surrogate’s fertility a moot point.

Lahl anticipates this point, stating:

Okay, Lahl is right. If they were not being paid, then the surrogates would probably not participate in the market. I have worked many jobs, and if they did not pay me, I would not have worked for them. So, what’s the point? Should we feel bad for the mothers because they agreed to do something that they would not do in the absence of monetary incentive? Monetary incentive does not make the transaction bad.

If “Big Fertility” as Faust calls it lied to these mothers, then they would have a right to complain and bring suit against the fraudulent fertility companies. But, “Big Fertility” cannot be attacked simply because they made money from surrogacy.

Lahl’s argument reeks of Marxist exploitation theory. “The women are being harmed because they are paid,” they cry. But this is utter nonsense. They voluntarily trade their womb away for about 9 months in exchange for money. They demonstrably prefer this outcome. They may come to regret it, but they preferred it at the beginning nonetheless, and that is all that matters.

As for child welfare, Lahl also explains how surrogacy can affect the health of the child that is born. This is a curious point to make. Would these children be better off not being born at all? Perhaps, but Lahl does not address this point.

A more important response is that children do not have a right to choose their initial endowment. If they did have a right to choose their initial endowment, then we would be forced to make the bizarre conclusion that there is a right to not have birth defects. What would that even mean? Would that mean that resources from others could be forced away from them and directed towards fixing these birth defects? This is a mystery.

Ultimately, a child has no right to choose their initial state. Their initial state may include poverty and birth defects, and though this may be unfortunate, children do not have a right for this state to be ameliorated. At first, they must rely on the charity of their parents or others to ameliorate their condition, and later, they must be free to alleviate their condition themselves or with the voluntary assistance of others.

Ultimately, children are not bought and sold under surrogacy, and a child does not have a right to their birth mother. Children may prefer their birth mother, but their preference has no bearing on whether the action of depriving them of their birth mother is just. Conservatives are wrong about surrogacy in general, and if their problem with it stems from ancillary issues such as IVF, then they should oppose IVF, not surrogacy in general.

About Benjamin Seevers

Benjamin Seevers is an economics PhD student at West Virginia University and holds a BA in economics from Grove City College. He was a 2023 Mises Summer Fellow. His research interests include private governance, public policy, and libertarian ethics. He blogs at Seevers Insights.

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