ABSTRACTThe analogy between gift‐giving and organ donation was first suggested at the beginning of the transplantation era, when policy makers and legislators were promoting voluntary organ donation as the preferred procurement procedure. It was believed that the practice of gift‐giving had some features which were also thought to be necessary to ensure that an organ procurement procedure would be morally acceptable, namely voluntarism and altruism. Twenty‐five years later, the analogy between gift‐giving and organ donation is still being made in the (...) literature and used in organ donation awareness campaigns. In this paper I want to challenge this analogy. By examining a range of circumstances in which gift‐giving occurs, I argue that the significant differences between the various types of gift‐giving and organ donation makes any analogy between the two very general and superficial, and I suggest that a more appropriate analogy can be found elsewhere. (shrink)

Surrogacy is prohibited by law in Germany. The chapter aims to provide a better understanding of the ethical objections that feed Germany’s restrictive stance. To this end, it does not only describe ethical objections being explicitly or implicitly raised in the academic discourse from the late 1980s until today but also examines their soundness by highlighting their underlying premises and confronting them with insights from international analyses. Given that concerns about children’s right to get to know their origin and surrogate (...) mother’s instrumentalisation remain as most cogent objections from this analysis, some conditions for surrogacy that would have to be in place in order to mitigate these concerns are outlined. (shrink)

Access to surrogacy is often cast in the language of rights. Here, I examine what form such a right could take. I distinguish between surrogacy as a right to assisted procreation, and surrogacy as a contractual right. I find the first interpretation implausible: it would give rise to claims against the state that no state can fulfil, namely the provision of sufficient surrogates to satisfy the need. Instead, I argue that the right to surrogacy can only be plausibly understood as (...) a contractual right. I then investigate two different sets of harms that are often employed to argue against such a contractual interpretation of the right to surrogacy: harm to women's interests in a gendered society, and harm to the sense of self of the surrogate. I assess both of these through the analytical lens of vulnerability. I find neither of them to be convincing arguments against surrogacy contracts. In conclusion, I agree that surrogacy contracts should be carefully regulated, but I disagree with those who call for prohibition of the right to surrogacy as a contractual right. (shrink)

Many critics have suggested that international paid surrogacy is exploitative. Taking such concerns as its starting point, this article asks: how defensible is the claim that international paid surrogacy is exploitative and what could be done to make it less exploitative? In the light of the answer to, how strong is the case for prohibiting it? Exploitation could in principle be dealt with by improving surrogates' pay and conditions. However, doing so may exacerbate problems with consent. Foremost amongst these is (...) the argument that surrogates from economically disadvantaged countries cannot validly consent because their background circumstances are coercive. Several versions of this argument are examined and I conclude that at least one has some merit. The article's overall conclusion is that while ethically there is something to be concerned about, paid surrogacy is in no worse a position than many other exploitative commercial transactions which take place against a backdrop of global inequality and constrained options, such as poorly-paid and dangerous construction work. Hence, there is little reason to single surrogacy out for special condemnation. On a policy level, the case for prohibiting international commercial surrogacy is weak, despite legitimate concerns about consent and background poverty. (shrink)

Because it is often argued that surrogacy should not be treated as contractual, the question arises in which terms this practice might then be couched. In this article, I argue that a phenomenology of surrogacy centering on the notion of trust provides a description that is illuminating from the moral point of view. My thesis is that surrogacy establishes a complex and extended reproductive unit––the “surrogacy triad” consisting of the surrogate mother, the child, and the intending parents––whose constituents are bound (...) together by mutual trustful commitments. Even though a trust-based approach does not provide an ultimate answer to whether surrogacy should be sanctioned or prohibited, it allows for at least some practical suggestions. In particular, I will argue that, under certain conditions, surrogacy is tenable within familial or other significant relationships, and I will stress the necessity of acknowledging the new relationships and moral commitments that result from this practice. (shrink)

It has become common to distinguish between altruistic and commercial contract motherhood (or ‘surrogacy’). Altruistic arrangements are based on the ‘gift relationship’: a woman is motivated by altruism to have a baby for an infertile couple, who are free to reciprocate as they see fit. By contrast, in commercial arrangements both parties are motivated by personal gain to enter a legally enforceable agreement, which stipulates that the contract mother or ‘surrogate’ is to bear a child for the intending parents in (...) exchange for a fee. She is required to undergo medical examinations and to refrain from behaviour that could harm the foetus. The intending parents are the child's legal parents from the outset. The parties to the contract can, but are not expected to, maintain contact after the transaction is completed. We argue that contract motherhood should not be organized according to the norms of the gift relationship, and that contract mothers should be compensated for their labour. However, we accept that there are good reasons for rejecting the commercial model as a suitable framework for contract pregnancy, and argue, instead, in favour of viewing it as a profession. (shrink)

Next SectionOne of the major concerns about surrogacy is the potential harm that may be inflicted upon the surrogate mother and the child after relinquishment. Even if one were to take the liberal view that surrogacy should be presumptively allowed on the basis of autonomy and/or compassion, evidence of harm must be taken seriously. In this paper I review the evidence from psychological studies on the effect that relinquishing a child has on the surrogate mother and while it appears that (...) many surrogates are able to cope with relinquishment, I argue that there are good reasons, grounded in empirical evidence, to support the view that the subsequent management of the relinquishment necessarily objectifies the surrogate mother. (shrink)

: It is argued that in many cases surrogate mothers are exploited when they participate in altruistic surrogacy arrangements, since their altruistic personality structure is not in the relevant sense "their own." The question of whether paternalistic interference is justified in these cases is discussed. Such interference seems to be acceptable on condition that the person interfering is someone belonging to the woman's intimate sphere.

Proposals for increasing organ donation are often rejected as incompatible with altruistic motivation on the part of donors. This paper questions, on conceptual grounds, whether most organ donors really are altruistic. If we distinguish between altruism and solidarity – a more restricted form of other-concern, limited to members of a particular group – then most organ donors exhibit solidarity, rather than altruism. If organ donation really must be altruistic, then we have reasons to worry about the motives of existing donors. (...) However, I argue that altruism is not necessary, because organ donation supplies important goods, whatever the motivation, and we can reject certain dubious motivations, such as financial profit, without insisting on altruism.Once solidaristic donation is accepted, certain reforms for increasing donation rates seem permissible. This paper considers two proposals. Firstly, it has been suggested that registered donors should receive priority for transplants. While this proposal appears based on a solidaristic norm of reciprocity, it is argued that such a scheme would be undesirable, since non-donors may contribute to society in other ways. The second proposal is that donors should be able to direct their organs towards recipients that they feel solidarity with. This is often held to be inconsistent with altruistic motivation, but most donation is not entirely undirected in the first place (for instance, donor organs usually go to co-nationals). While allowing directed donation would create a number of practical problems, such as preventing discrimination, there appears to be no reason in principle to reject it. (shrink)

: Iran has had a program of compensated kidney donation from living unrelated (LUR) donors since 1997. The aim of the program was to address the increasing demand for kidney transplantation in a morally sound manner. The program was successful in terms of increasing the number of kidneys available for transplantation. This paper presents a critical review of the program and its ethical status. Denying organ donors legitimate compensation because of the understandable fear of an organ trade is not morally (...) justifiable, and the Iranian model of compensated LUR kidney donation offers substantial benefits that overcome these concerns. Despite its benefits, the program lacks secure measures to prevent the risk of a direct monetary relationship between donors and recipients, and it must be revised in order to be morally justifiable. (shrink)

Surrogate motherhood is treated as a form of adoption in many countries: the birth mother and her partner are presumed to be the parents of the child, while the intended parents have to adopt the baby once it is born. Other than compensation for expenses related to the pregnancy, payment to surrogates is not permitted. We believe that the failure to compensate surrogate mothers for their labour as well as the significant risks they undertake is both unfair and exploitative. We (...) accept that introducing payment for surrogates would create a significant tension in the adoption model. However, we recommend rejecting the adoption model altogether rather than continuing to prohibit compensation to surrogates. (shrink)

Emotionally-related live organ donation is different from almost all other medical treatments in that a family member or, in some countries, a friend contributes with an organ or parts of an organ to the recipient. Furthermore, there is a long-acknowledged but not well-understood gender-imbalance in emotionally-related live kidney donation. This article argues for the benefit of the concept of just love as an analytic tool in the analysis of emotionally-related live organ donation where the potential donor(s) and the recipient are (...) engaged in a love relation. The concept of just love is helpful in the analysis of these live organ donations even if no statistical gender-imbalance prevails. It is particularly helpful, however, in the analysis of the gender-imbalance in live kidney donations if these donations are seen as a specific kind of care-work, if care-work is experienced as a labour one should perform out of love and if women still experience stronger pressures to engage in care-work than do men. The aim of the article is to present arguments for the need of just love as an analytic tool in the analysis of emotionally-related live organ donation where the potential donor(s) and the recipient are engaged in a love relation. The aim is also to elaborate two criteria that need to be met in order for love to qualify as just and to highlight certain clinical implications. (shrink)

The socio-ethical concerns regarding exploitation in commercial surrogacy are premised on asymmetric vulnerability and the commercialization of women’s reproductive capacity to suit individualistic motives. In examining the exploitation argument, this article reviews the social contract theory that describes an individual as an ‘economic man’ with moral and/or political motivations to satisfy individual desires. This study considers the critique by feminists, who argue that patriarchal and medical control prevails in the surrogacy contracts. It also explores the exploitative dynamics amongst actors in (...) the light of Baier’s conceptualization of trust and human relationship, within which both justice and exploitation thrive, and Foucault’s concept of bio-power. Drawing on these concepts, this paper aims to investigate the manifestations of exploitation in commercial surrogacy in the context of trust, power and experiences of actors, using a case study of one clinic in India. The actors’ experiences are evaluated at different stages of the surrogacy process: recruitment, medical procedures, living in the surrogate home, bonding with the child and amongst actors, financial dealings, relinquishment and post-relinquishment. (shrink)

Reproductive gift relationships must be seen in their totality, not just as helping someone have a child. Noncommercial surrogacy cannot be treated as a mere act of altruism—any valorizing of altruistic surrogacy and reproductive gift‐giving must be assessed within the wider context of women's political inequality.

BackgroundDuring a commercial surrogacy arrangement, the event of embryo transfer can be seen as the formal starting point of the arrangement. However, it is common for surrogates to undergo a failed attempt at pregnancy conception or missed conception after an embryo transfer. This paper attempts to argue that such failed attempts can be understood as a loss. It aims to reconstruct the experiences of loss and grief of the surrogates and the intended parents as a consequence of their collective failure (...) to conceive a surrogate pregnancy.MethodsDrawing on a qualitative study conducted over a period of eight months between 2014 and 2015 at two fertility clinics in Delhi and two in Kolkata, India, this paper examines the experiences of the surrogates and the intended parents when faced with missed conceptions or failed conceptions during a surrogacy arrangement.ResultsWe argue that while the surrogate grieves the non-arrival of a ‘good news’ as an uncertain loss, the intended parents experience yet another, failure in addition to the losses they might have incurred during their previous fertility treatments. The body of the surrogate becomes a site of ‘a lost opportunity’. The surrogate embodies a loss in her quest to achieve social mobility and the intended parents experience a disembodied pregnancy loss. This very emotional experience stands in stark contrast to the conceptualisation of such failed attempts as non-events within the discourse of the surrogacy industry. The experience of loss of the intended parents is recognised but their grief is given no space. We argue that such ambiguity around the nature of losses resulting out of a missed or failed conception during surrogacy is an outcome of lack of interpersonal relationship between the surrogate and the intended parents.ConclusionsSince commercial surrogacy is a relational process, the only way in which the experiences of losses and failures of the actors at the preconception stage can be better addressed is through developing close sharing and understanding between each other through an ethics of care. Therefore, to nurture caring relationships, surrogacy needs to be understood as a moral commitment by –the surrogates and intended parents. To enable such a commitment, there is a need to reconsider the pre-defined and legally regulated professional duty of the doctors, agents and agencies. It cannot be a one-sided commitment, but has to have elements of mutuality. (shrink)

There is an ongoing expert debate with regard to financial incentives in order to increase organ supply. However, there is a lacuna of empirical studies on whether citizens would actually support financial incentives for organ donation.

Free and informed consent is generally acknowledged as the legal andethical basis for living organ donation, but assessments of livingdonors are not always an easy matter. Sometimes it is necessary toinvolve psychosomatics or ethics consultation to evaluate a prospectivedonor to make certain that the requirements for a voluntary andautonomous decision are met. The paper focuses on the conceptualquestions underlying this evaluation process. In order to illustrate howdifferent views of autonomy influence the decision if a donor's offer isethically acceptable, three cases (...) are presented – from Germany, theUnited States, and India. Each case features a person with questionabledecision-making capacity who offered to donate a kidney for a siblingwith severe renal insufficiency. Although the normative framework issimilar in the three countries, different or sometimes even contraryarguments for and against accepting the offer were brought forward. Thesubsequent analysis offers two explanations for the differences inargumentation and outcome in spite of the shared reference to autonomyas the guiding principle: (1) Decisions on the acceptability of a livingdonor cannot simply be deducted from the principle of autonomy but needto integrate contextual information; (2) understandings of the wayautonomy should be contextualized have an important influence on theevaluation of individual cases. Conclusion: Analyzing the conceptualassumptions about autonomy and its relationship to contextual factorscan help in working towards more transparent and better justifieddecisions in the assessment of living organ donors. (shrink)

This article examines pregnancy as a dyadic body-project within surrogate motherhood arrangements. In gestational surrogacy arrangements, the surrogate mother agrees to have an embryo that has been created using IVF, with the genetic materials of the intended parents or of anonymous donors, surgically implanted in her womb. Based on anthropological fieldwork among Jewish-Israeli surrogates and intended mothers involved in these arrangements, this article focuses upon the interactive identity management practices that the women jointly undertake during the pregnancy. For each side, (...) creating an unambiguous definition of motherhood was central to their individual identity-work. For surrogates, the possible imputations of immorality required redefining pregnant embodiment as separate from maternal identity, while for intended mothers, the surrogate’s embodiment of the pregnancy represented competing claims to their own maternity. Through verbal communication and through practices of disembodiment and vicarious embodiment, the women construct a ‘shifting body’ which they use to designate the social label of pregnancy, identity-building processes associated with pregnant embodiment, and even the lived experience of pregnancy. This example of a dyadic body-project contributes to the existing scholarship on the role of the body in the management of identity. While previous works have examined projects of the body as individualistic pursuits, the shifting body exemplifies that body-projects can be collaborative, dual forms of identity-work and that pregnancy can be the site of these projects. (shrink)

This paper challenges the view that bans on kidney sales are unjustifiably paternalistic, that is, that they unduly deny people the freedom to make decisions about their own bodies in order to protect them from harm. I argue that not even principled anti-paternalists need to reject such bans. This is because their rationale is not hard paternalism, which anti-paternalists repudiate, but soft paternalism, which they in principle accept. More precisely, I suggest that their rationale is what Franklin Miller and Alan (...) Wertheimer call ‘group soft paternalism’. Group soft paternalistic policies restrict the freedom of autonomous individuals, not for their own good (hard paternalism), but as an unavoidable consequence of seeking to protect other, non-autonomous individuals from harms that they have not voluntarily chosen (soft paternalism). Group soft paternalism supports prohibiting kidney sales on three conditions: (1) that such sales are potentially harmful to vendors, (2) that many vendors would suffer impaired autonomy, and (3) that distinguishing between autonomous and non-autonomous vendors and interfering only with the latter is unfeasible. I provide reasons for thinking that these conditions will often hold. (shrink)

In a host surrogate motherhood arrangement, the surrogate agrees to be implanted with, and carry to term, an embryo created from the commissioning couple9s gametes. When the surrogate child is born, it is the surrogate mother who, according to UK law, holds the legal status of mother. By contrast, the commissioning mother possesses no maternal status and she can only attain it once the surrogate agrees to the completion of the arrangement. One consequence of this is that, in the event (...) that a host arrangement fails, the commissioning mother is left without maternal status. In this paper, I argue that this denial of maternal status misrepresents the commissioning mother9s role in the host arrangement and her relationship with the surrogate child. Consequently, I suggest that commissioning mothers participating in host surrogacy arrangements ought to be granted the status of mother in the event that the arrangement fails. (shrink)

In Germany, gestational surrogacy is strictly prohibited. As a result, intended parents from Germany are forced to travel abroad if they plan to commission a surrogacy. Main destinations for German intended parents are the United States, Ukraine, and until recently also India. Drawing on ethnographic research, this chapter focuses on the specific situation of German intended parents who choose to commission surrogacy abroad. It deals with their experiences in a legally restrictive national context and their strategies to circumvent this, and (...) with their ways of establishing kinship and parenthood, which sometimes include incorporating the surrogate and her family into their extended kin network. (shrink)

Free and informed choice is an oft-acknowledged ethical basis for living kidney donation, including parental living kidney donation. The extent to which choice is present in parental living kidney donation has, however, been questioned. Since parents can be expected to have strong emotional bonds to their children, it has been asked whether these bonds make parents unable to say no to this donation. This article combines a narrative analysis of parents’ stories of living kidney donation with a philosophical discussion of (...) conditions for parental decision-making. Previous research has shown that parents often conclude that it is “natural” to donate. Our study shows that this naturalness needs to be understood as part of a story where parental living kidney donation is regarded as natural and as a matter of non-choice. Our study also highlights the presence of a parenthood moral imperative of always putting one’s child’s needs before one’s own. On the basis of these results, we discuss conditions for decision-making in the context of parental LKD. We argue that the presence of a parenthood moral imperative can matter with regard to the decision-making process when parents consider whether to volunteer as living kidney donors, but that it need not hamper choice. We emphasise the need for exploring relational and situational factors in order to understand parental decision-making in the context of parental LKD. (shrink)