Is commercial surrogacy legitimate work?

Introduction

No widespread procreative practice is as controversial as commercial surrogacy. The 2023 Cretan scandal, where authorities found evidence of human trafficking, rampant exploitation and the sale of children, is only the most recent in a litany of cases supporting the widely held view that surrogacy is morally problematic (Underhill, 2024). This view, combined with the fact that most liberal democracies do not allow commercial surrogacy to take place in their territory, helps to support the presumption against the moral permissibility of this practice.

Philosophers, too, have contributed arguments that support these broader societal attitudes against commercial surrogacy. Carole Pateman (1988) famously argued that surrogates are forced to alienate parts of themselves. Elizabeth Anderson (1990) defended the claim that surrogacy is exploitative and unfair in how it expects the surrogate not to develop maternal love towards her gestational child. Debra Satz (2010) has called attention to the fact that in a context of gender inequality, surrogacy inevitably reinforces problematic stereotypes towards women. ¹ Most recently, Anca Gheaus (2024) has defended the claim that commercial surrogacy wrongs children because it allows adults to buy and sell custody, when custody should instead be assigned by the state based on the best interests of the child.

In this essay, I will remain agnostic about whether these arguments against commercial surrogacy succeed. I will also remain agnostic about which argument is strongest, should more than one qualify as plausible. My aim, rather, is to show that the best strategy in defence of commercial surrogacy – which I call the ‘surrogacy-as-legitimate-work’ strategy – relies on two implicit assumptions and that once we make them explicit, we are forced to see that commercial surrogacy inevitably leads to a conflict of core moral rights. As I will show, if commercial surrogacy is a type of work, it is work that cannot simultaneously protect the core moral rights of the surrogate and the intending parent(s). Defenders of commercial surrogacy are better off developing an alternative strategy in defence of this practice.

The discussion will proceed in three stages. First, I make some preliminary points about the scope of the discussion. Second, I discuss the surrogacy-as-legitimate-work strategy by discussing two defences of commercial surrogacy in the literature. These are the bodily autonomy account defended by Cecile Fabre and the occupational choice account defended by Christine Straehle. Third, I argue that these accounts can only succeed if they grant two contradictory assumptions: that surrogates are morally entitled to opt out during pregnancy and that intending parents are the moral parents of the child even before birth. I show that these two conditions are in conflict with one another. The implication of my discussion is that the surrogacy-as-legitimate-work strategy does not succeed in showing that commercial surrogacy is in fact morally legitimate. I then finish the discussion by responding to four objections.

Commercial surrogacy

Before turning to the normative debate, I will clarify key terms and assumptions that will structure our discussion. I will refer to the gestating party as ‘surrogate’. I will refer to the party contracting the service of the surrogate as the ‘intending parent’. It is true that not all individuals willing to contract the services of a surrogate are planning to single parent, but whether we have one, two or more prospective parents does not matter for my discussion.

To focus on the ethics of commercial surrogacy, I will put aside several philosophical questions regarding procreation. For instance, I will not only assume that the anti-natalist position is mistaken, but also that there is no moral duty to adopt a child who already exists and is already in need of parental love. ² This means that I will work under the assumption that procreative parenting is morally permissible. ³ Some of the arguments developed here will have implications for the ethics of procreative parenting more broadly, including cases of altruistic surrogacy and standard non-assisted forms of procreation. I return to these cases later in the discussion.

Another important assumption that I endorse is that the correct account of moral parenthood is a voluntarist one (Brake, 2010; Ferracioli, 2023; O’Neill, 1979). This means that the moral parent is ultimately the person who volunteers or commits to take up the parental role and is able to perform the role adequately. ⁴ Now, this person might also be a gestational or genetic parent, but being willing to exercise ultimate (and encompassing) authority over a child for her own benefit is what sets the moral parent apart from other potential parents and other loving members of the family (e.g. grandparents, godparents, etc.). ⁵ This is important because the surrogacy-as-legitimate-work strategy relies on some version of voluntarism to be true. If the correct account of moral parenthood is not voluntarist but gestational, then commercial surrogacy is morally impermissible since intending parents would be barred from occupying the role of moral parents. Equally, if the correct account of moral parenthood is not voluntarist but genetic, then surrogacy combined with the use of donated sperm or donated eggs (or both) by third parties will be morally impermissible since an intending parent who does not contribute genetic material would be barred from occupying the role of moral parents, and the gamete donor in question would, in turn, count as a moral parent despite being unwilling to parent the resulting child.

Obviously, moral parenthood is a contested topic in family ethics, and I don’t expect all readers to subscribe to a voluntarist account of moral parenthood. For my purposes, it suffices that the reader grants that it is at least plausible to think that intending parents can be moral parents at some point in the process even if they are not the genetic parents, and so it is plausible to think that the voluntarist story can capture the moral significance of every child having at least one adult willing to exercise ultimate (and encompassing) authority over them for their own benefit (although, as I will show, the fact that intending parents can be moral parents does not in itself settle the question of whether commercial surrogacy is morally legitimate).

In this essay, I am interested in the question of whether commercial surrogacy is compatible with the promotion and protection of core moral rights – and I understand core moral rights as rights that protect fundamental moral interests, such as the interest in leading an autonomous life, or an interest in being treated with respect. One contingent way in which commercial surrogacy is not compatible with core moral rights is when surrogates are motivated to perform gestational work due to financial desperation or due to pressure from family members. Such cases of surrogacy are certainly morally problematic, but they do not settle the question of whether commercial surrogacy is a morally illegitimate form of work. After all, the fact that people sometimes consent to work as waiters due to financial desperation or pressure from family members does not in any way show that waitressing is a morally illegitimate occupation.

Setting cases of exploitation and duress aside, I am also not directly addressing the question of how to best regulate surrogacy in liberal democratic societies and across international borders, nor am I addressing the question about the permissibility of agencies acting as intermediates between surrogates and intending parents. Such questions become more pertinent if it has been established that commercial surrogacy is a morally legitimate occupation. One of the aims of this article is to make it more difficult for proponents of commercial surrogacy to achieve this goal.

To be sure, some might argue that even if surrogacy is shown to be a morally illegitimate occupation, and that the state should ideally ban it, we are still faced with the question of how to regulate surrogacy under non-ideal conditions, given all the human rights violations that take place when there is a black market for services that vulnerable citizens may rely on in order to meet their basic needs or to get something they desperately want.

Although I accept the point that black markets can lead to gross human rights violations, I will put aside the question of how different states should respond to commercial surrogacy in their own territory since different considerations will play out in different jurisdictions. Indeed, questions around the effectiveness of enforcement, accessibility of adoption, accessibility of exploitative surrogacy arrangements in developing countries, and the uptake of altruistic surrogacy at the cultural and institutional level (e.g. access to paid parental leave for altruistic surrogates) will all be relevant when it comes to regulation. ⁶

Note though that the philosophical discussion remains relevant even for those primarily concerned with legal reform and public policy. After all, philosophical moves are constantly made by those engaging in public debates on matters of regulation. One advocate for the legalization of commercial surrogacy in Australia tells us: ‘These women are not motivated because they think they’ll get paid, but I do think it's pretty exploitative to say, “You can do it for love, and we are not going to pay you,” but everybody around you is going to take home pay’ (Cook, 2026). As is clear, whether or not this argument works very much depends on whether surrogacy counts as legitimate work, since no one thinks that it is exploitative that the best friend of a pregnant person will not get paid in exchange for emotional support throughout the pregnancy, even though all the service providers and health care workers (i.e. doctors, midwives, therapists, etc.) will.

Surrogacy as legitimate work

The surrogacy-as-legitimate-work strategy is the most compelling strategy in support of commercial surrogacy. Unlike accounts that merely appeal to the value of (bodily) autonomy, the surrogacy-as-legitimate-work strategy attempts to explain both why it is morally permissible to gestate for someone else and why it is morally permissible to profit or make a living from that practice.

Cecile Fabre (2006) has put forward a compelling version of this argument. For Fabre, all legitimate work involves the use of one's body to some extent, and so once we dig a bit deeper into the practice of commercial surrogacy, we will see that commercial surrogacy not only has a lot in common with occupations such as sex work, modelling and massage therapy, but also with academic philosophy. As she explains: ‘It is similar to those services which consist not merely in using one's body or brain, but in using them so as to create something, rights over which are transferred to the purchaser in virtue of a sale agreement’ (2006: 193).

Fabre is aware of all the dangers that accompany pregnancy, and she makes it clear that surrogacy needs to be the result of a voluntary decision by the surrogate. Her argument therefore relies on citizens discharging their duties of justice to one another and is conditional on surrogates being able to lead a minimally decent life irrespective of their work choices. This requirement locates her argument in ideal theory in the sense that it abstracts away from some of the contingent facts (i.e. duress, poverty, gender inequality) that make so many cases of surrogacy morally wrong. But in the same way that even in ideal conditions, there will be demanding and dangerous professions (e.g. factory work, coal mining), there will be surrogates willing to gestate a child to term in exchange for a payment. For Fabre, under conditions of informed consent and sufficiently just socio-economic conditions, surrogacy will count as a legitimate form of work.

An important upshot of Fabre's account is that once the transfer of rights takes place after birth, the intending parent becomes the moral (and legal) parent of the child. Another upshot is that during gestation, the surrogate is morally entitled to opt out of work. This can be done in one of two ways: by terminating the pregnancy if the surrogate finds it ‘too dangerous, too unpleasant, too risky, and so on’ or by choosing not to give the child up after the birth and so forfeiting her right to a payment (2006: 214–216).

Fabre is not alone in defending commercial surrogacy as legitimate work. Another compelling argument in support of this strategy has been put forward by Christine Straehle. In her discussion of commercial surrogacy, Straehle emphasizes the importance of freedom of occupational choice for the enjoyment of important values, such as autonomy, self-realization and self-respect. As she explains: ‘If there are jobs on offer, if there is demand, and assuming that a person has the necessary qualifications and training, she should be free to engage in the kind of work that she chooses’ (Gheaus and Straehle, 2024: 26). To deny someone the right to choose for herself what work to engage in the course of her life is for her to be prevented from autonomously choosing the best way to employ her body and talents. This not only violates her autonomy but also undermines self-realization and self-respect, values that are often behind the search for a meaningful occupation during one's adult years (Gheaus and Straehle, 2024).

In support of her position, Straehle reminds us that many surrogates have commendable motives for wanting to provide gestational labour for others (Gheaus and Straehle, 2024: 84). Even if they are not struggling with a lack of employment opportunities, they might appreciate the ability to put food on the table without having to spend time away from their own young children. Alternatively, surrogates might act from altruistic motives (see Walker and van Zyl, 2016). That is, they genuinely want to help others engage in what they consider to be a valuable enterprise: the process of creating a person in order to parent her.

Like Fabre, Straehle is not convinced that surrogacy necessarily leads to commodification, and she wants to defend it from the charge that it amounts to baby-selling. But unlike Fabre, who denies the charge by arguing that what is sold is custody rights rather than persons, Straehle seems to think that the intending parents are the only moral parents from the moment of conception. This assumption that the intending parents are the moral parents from the get-go becomes clear when she discusses the challenge posed by abortion:

The harm to the intending parents’ interest of having a child is greater, because the child is already feasibly in the making. The idea of a future together has already taken root, and intending parents will likely experience the loss of the foetus traumatically, much as genetic parents experience a miscarriage. Again, we need to weigh this loss against the interest of the surrogate—her reasons for wanting to opt out. I suggest that it is fair to say that they would have to be plausible and weigh heavier in the moral balance than the hardship the parents suffer in case of abortion. (Gheaus and Straehle, 2024: 78, my emphasis)

This presumption against abortion in commercial surrogacy follows naturally from Straehle's picture of who has ultimate authority over the foetus. Because she treats the intending parents as the moral parents during pregnancy, and the surrogate as someone who is simply selling her gestational labour, it makes sense for Straehle to think that surrogates are not morally entitled to have an abortion save in extreme cases. The sorts of cases she mentions are those where there is a serious threat to the surrogate's health, or where the pregnancy will make it impossible for the surrogate to discharge her parental duties towards her own children (Gheaus and Straehle, 2024: 77–79). ⁷

This assumption that intending parents are the moral parents during the surrogacy arrangement also helps to support Straehle's claim that it is morally impermissible for the surrogate to opt out by choosing to become the child's parent. For Straehle, the intending parents are harmed by the surrogate's failure to release the child at the time of birth, an act that doesn’t recognize the parents’ heightened vulnerability (2024: 60; see also Zyl and Walker, 2015).

Before I explain why the surrogacy-as-legitimate-work strategy requires that the surrogate be allowed to opt out during pregnancy, as well as requires that we conceptualize the intending parents as the moral parents of the foetus, let me finish this section by noting that Fabre and Straehle each miss one of these requirements. Although Fabre's discussion of the right to opt out is on the right track, her assumption that custody is transferred after birth is problematic since it denies the intending parent's status as the moral parent during gestation. Straehle's account, on the other hand, has the opposite problem. Although she is right to imply that the intending parent is the moral parent even during pregnancy, her anti-opt-out stance conflicts with the claim that surrogacy is a form of legitimate work.

Now, the fact that each of these philosophers accepts one but denies the other of these two assumptions is no accident. This is partly what makes their accounts so compelling. The understanding of moral parenthood as something that is transferred from the surrogate to the intending parent at the time of birth bolsters Fabre's claim that it is important to protect the surrogate's ability to opt out. Equally, a high bar requirement on the part of the surrogate to opt out bolsters Straehle's assumption that the intending parent is the only moral parent in the entire process. As we will see, however, these two assumptions cannot be reconciled, and when they are made explicit and carefully defended, we are left with a powerful explanation as to why commercial surrogacy is a form of illegitimate work. On the one hand, the surrogate's right to opt out makes it impossible to protect the right of the intending parent to act as a moral parent during pregnancy, and so to exercise ultimate authority over the foetus. On the other hand, the right of the intending parent to exercise ultimate authority over the foetus makes it impossible to protect the right of the surrogate to opt out. In short, moral parenthood in commercial surrogacy arrangements conflicts with the moral conditions for free work.

Two assumptions

What are these hidden assumptions I have been referring to? The first is this: if commercial surrogacy is morally permissible because it is a form of legitimate work, then we must grant that surrogates have a moral right to opt out. ⁸ To make good on this claim, let us return to Fabre's point that surrogates should be able to have an abortion for the same reasons other workers are allowed to opt out of their own work. In the same way that sex workers, models and philosophers should be able to stop working if the work becomes dangerous, unpleasant or risky, surrogates should be able to have an abortion if the pregnancy becomes dangerous, unpleasant or risky.

Although Fabre's liberal take on abortion is more in line with the idea that surrogacy is a form of work than Straehle's more restrictive stance, even Fabre does not go as far as she needs to go for the surrogacy-as-legitimate-work strategy to work. This is because surrogacy is, in a crucial sense, unlike any other profession, and so the opt-out option should apply even when the surrogate lacks a compelling reason for choosing to no longer provide the service stipulated in her contract. The thought here is that surrogacy's all-encompassing and demanding nature prevents the surrogate from drawing vital boundaries between their personal and professional life. This state of affairs could only be made compatible with personal autonomy with an immediate opt-out option.

But why think that the right to opt out is broader in scope than the right to opt out which all workers have when the work becomes dangerous, unpleasant or risky? There are many factors at play which conspire to render surrogacy exceptionally demanding and so particularly threatening to personal autonomy. First, being pregnant significantly increases the risk of death, disability and harmful health conditions facing an adult, including increased risk of high blood pressure, gestational diabetes, anaemia, depression and infections (Kingma, 2018; Smajdor and Räsänen, 2025). Second, pregnancies are costly. Although some pregnancies are symptoms-free, pregnancy typically involves ‘back pain, bleeding gums, headaches, heartburn and indigestion, leaking from the nipples, nosebleeds, pelvic pain, piles, stomach pain, stretch marks, swollen ankles, feet and fingers, tiredness and sleep problems, thrush, vaginal bleeding, vaginal discharge, vomiting, morning sickness and weight gain’ (Smajdor and Räsänen, 2025). Third, pregnancy is inescapable. One cannot step away from it – not even for a moment. The foetus is a constant, embodied presence. ⁹ Fourth, pregnancies typically last 9 months, which is a very long period for any person ‘to be at work’. Indeed, there is no proper physical or psychological respite at any point during the 9 months of gestation, and this is why the moral right to opt out (even for trivial reasons) is so important to ensure that the surrogate remains a free agent throughout this process. ¹⁰

This is not to deny that other professions share some of the features mentioned above. But the risks, costs and unceasingness of pregnancy make surrogacy unlike other legitimate professions in liberal democratic societies. And this is why the right to opt out needs to be particularly broad in scope if surrogacy is to count as a legitimate occupation. To see this point, we need only make other occupations such as sex work and modelling more like pregnancy. Once we do that, we can see that a right to opt out at any stage of the process and for any reason would be necessary for the legitimacy of these occupations. Looking at these parallel cases will help us see that the surrogacy-as-legitimate-work strategy must grant that the surrogate has a right to opt out either by having an abortion for whatever reason or by changing her attitude towards the growing foetus and conceiving of it as her future child rather than the product of her gestational labour.

Let us start by considering a hypothetical sex work arrangement that tests the boundaries of legitimate labour. In this arrangement, a sex worker signs a contract to serve a client at all times for nine months. Moreover, imagine that the contract stipulates that the client can access the sex worker's body whenever he likes. The contract does not stipulate, however, that the client can demand other services from her. Now, most readers would respond to this case by arguing that it amounts to sex slavery and so is morally illegitimate. I take no stance on the ethics of sex work or the moral permissibility of this arrangement in this essay. But one thing is clear: a necessary condition (albeit perhaps not sufficient) for this arrangement to count as legitimate work is for the sex worker to be morally entitled to opt out at any time and for any reason, even if trivial. If she wakes up one day and decides that she no longer likes the client's music taste, that would be enough of a reason to release her from any obligation to continue the work. Similarly, if she feels tired or bored, that would suffice as well. And note that no matter how sympathetic we are towards the client, we would still hold to our judgement that the sex worker has a broad moral right to opt out. For instance, imagine that the client has never had a romantic relationship in his life and all he craves is the human connection that comes with intimacy. That is not enough. For sex work that is exceptionally demanding to count as legitimate work, a moral right to opt out at any time and for any reason would need to be protected by our social and legal practices surrounding sex work.

Now imagine a modelling contract that similarly stretches the limits of personal autonomy. In this contract, a model agrees that a photographer will follow her round-the-clock for nine months and take pictures of her daily life. Sometimes the photographer will take pictures while she is sleeping, sometimes while reading a book. Sometimes it will happen when she is eating. Other than that, the photographer will leave her alone. Again, I take no stance on whether respect for privacy, and so by extension, the exercise of personal autonomy is compatible with this form of modelling work. As before, however, one thing is clear: this arrangement could only count as legitimate work if the model can opt out at any time and for any reason, even if trivial. Perhaps she now finds the sound of the camera annoying, or maybe she wants to go on a holiday by herself. These are all good enough reasons to opt out. And again, it does not matter how devastated the photographer will be if the contract comes to an end. Perhaps these photos are precisely what he needs to finally launch his artistic career. Perhaps he has spent years carefully looking for the ideal model for his groundbreaking exhibition. Again, I contend that for modelling that is exceptionally demanding to count as legitimate work, a moral right to opt out at any time and for any reason needs to be protected by our social and legal practices surrounding work.

What should we learn from these cases? If we think that legitimate labour contracts give individuals moral reasons to deliver the labour they are contracted to deliver, we might nonetheless think that there are conditions such that, if they obtain, they void those reasons. Some jobs have aspects that are so demanding on an individual, in terms of their physical, psychological and temporal commitments to the role, that over a certain threshold of demandingness, it must remain entirely within the voluntary control of the agent whether they continue the work. The core claim here is that for the exceptionally demanding jobs discussed above to be legitimate, individual workers would need to be provided with an immediate ‘opt out’ option in order for their core interest in autonomy to be adequately protected.

A note, in passing. This ‘opt out’ option will only protect the moral right of workers to stop performing the work, not secure any payment stipulated in the contract. Whether workers are both allowed to opt out and keep any payment already received is a question I leave open. I also leave open the possibility that not only are workers not allowed to keep any payment they have already received but may also owe compensation to the other contracting party. I put such questions aside both because they are orthogonal to the issue pursued here and because I suspect we can only address them on a case-by-case basis.

In response to the discussion so far, Straehle and Fabre could argue that some professions also lack respite and yet we do not protect a broad moral right to opt out. Straehle, for instance, compares surrogates with professional soldiers and reminds us that we ‘don’t consider soldiers to be slaves; neither do we think of a military career as permanent alienation, even though soldiers use their bodies for the time of their military employment’ (Gheaus and Straehle, 2024: 51). Although Straehle is right that there are parallels between the two cases, I don’t think this type of work helps her case. For one, soldiers are entitled to some respite and should not be fighting round-the-clock. In other words, soldiers should not always be on call, so to speak. But even in cases where respite is not possible due to the nature of a particular war, we might think that it is permissible to deny the soldier an immediate opt-out option on the basis that they have a civic duty to continue fighting this particular war grounded on a broader duty to support just institutions – at least if we deem the war to be just (McMahan, 2004; see also Lazar, 2013). ¹¹ In other words, there is an important difference between soldiers and surrogates that can explain why this opt-out option may not apply to soldiers. And of course, an argument that surrogates have a moral duty to gestate grounded on considerations of justice would be very different from the arguments employed by those hoping to show that surrogacy counts as legitimate work. ¹² It would be different because it would need to show that the intending parents have a claim of justice on their fellow citizens for assistance with their procreative enterprise. ¹³ This is not an argument that the surrogacy-as-legitimate-work strategy has the theoretical resources to mount.

Another comparison often raised is with astronauts, whose work also involves extreme physical and psychological demands. As Fabre reminds us, astronauts ‘live for several months in a very restricted environment, and subject themselves to constant monitoring, indeed, in some cases, to medical experiments’ (2006: 194). Now, I grant that pregnancy is quite analogous to a space mission in the sense that it is risky, costly and unceasing. Not only is the astronaut always in space and so unable to put work aside for even a few minutes, but I also suspect that ordinary activities such as sleeping and eating would feel very different during a space mission. I also grant that space agencies typically deny astronauts the right to return to Earth whenever they feel like it.

This case does not work as a counterexample, however. Note that very few people succeed in becoming astronauts precisely because we deem the conditions to be so difficult that very few people are deemed to be sufficiently psychologically resilient to occupy the role. In other words, we do acknowledge that this is an exceptionally demanding profession and so act accordingly by making it very hard for individuals to become astronauts. Those who want to keep pressing this analogy will therefore at best justify a completely different approach to commercial surrogacy, one where only a few individuals succeed in their quest to become commercial surrogates. Given the high levels of demand for surrogacy in liberal democratic societies, I am not sure that the defenders of commercial surrogacy will be entirely satisfied with this result. ¹⁴

But it is also important to remember that the reason we don’t affirm the right of astronauts to come to Earth whenever they feel like it and so to enjoy some level of respite from their work is because the technology is such that the costs would be prohibitive. It is not feasible to both run space missions and protect the moral right of astronauts to opt out. Yet suppose that going to space was as costly as driving a car from London to Oxford. In this case, we would have a much stronger case for allowing astronauts to opt out, even for trivial reasons.

In sum, risky, costly and unceasing occupations that involve long tasks are so demanding that they can only be compatible with personal autonomy if workers have their moral right to opt out protected by the laws and arrangements regulating that type of work. Some demanding work (e.g. space missions), however, is such that the ‘opt out’ option cannot be provided. But that significantly raises the bar for the legitimacy of opting in for that kind of work. In opting in, they must be fully aware that the ‘opt out’ option will not be provided and they must be psychologically capable of living with this significant autonomy constraint. Surrogacy is not like that, because the opt-out condition can be provided. And it can be provided both via abortion and by the decision not to relinquish the child later down the track (with the latter allowing for a change of attitude such that gestational work becomes a labour of love or care and the tension between personal and professional life dissolves). The important point here is that surrogacy is demanding enough work that for it to be legitimate, surrogates must have their broad moral right to opt out protected by our social and legal practices surrounding work.

Let me now turn to the question of moral parenthood. I mentioned earlier that I endorse Straehle's assumption that the intending parent is the moral parent even before birth. As we are about to see, there is a compelling reason for this.

One of the most important moral questions to have sprung from the practice of commercial surrogacy is whether commercial surrogacy amounts to baby selling. Some critics have said yes (Anderson, 1990; Gheaus, 2024). Fabre and Straehle have answered no. It is instructive to see why. Fabre tells us that the surrogate is paid ‘to relinquish her rights over the child’ (2006: 212). Straehle says that ‘commissioning parents are simply exercising their procreative rights to become parents by entering into surrogacy agreements’ (2024: 60).

The reason I believe Straehle is right – and Fabre is wrong – relates to the consequences of thinking that the surrogate relinquishes her rights over the child. If that is what she does, and this counts as legitimate work, then why are parents not allowed to relinquish their rights over their toddlers and pre-schoolers in exchange for a payment? Fabre is right to suggest that the charge of baby-selling is uncharitable because it suggests a form of complete control over the child, and so a form of child slavery, which surrogacy is clearly not. But talk of relinquishing one's rights for a payment is just a respectable way to describe the practice of selling moral parenthood. And if selling moral parenthood when one's child is a pre-schooler is not morally permissible, why would it be permissible when one's child has just been born? ¹⁵

Proponents of commercial surrogacy may respond that relinquishing one's rights over a pre-schooler is impermissible because there is already a relationship with the child, and she will be harmed by this exchange. But we can easily imagine a case where a father goes to war in another continent when the child is an infant and returns home a couple of years later after the child's mother has passed away. Imagine that during the time he is away, he provides financially for the family and helps the mother make important decisions about the child's health and care arrangements. That is, he exercises ultimate authority together with the mother, and so remains one of the child's moral parents.

Now, I take it that we would be appalled if, upon his return, he decides to relinquish his rights over the child for a payment. And it wouldn’t help if he called attention to the fact that he would make for a lousy parent and that those paying for custody would be better parents than he could ever be. It would also not help if he reminded us that he didn’t really have a proper relationship with the child. We would be appalled by this case because, as Satz (2010) convincingly argues, some things should not be for sale. One of such things is the role of a loving moral parent. And it does not matter if this happens at birth or later during childhood.

The only way around this problem, I believe, is to follow Straehle in seeing the intending parents as the moral parents even during pregnancy. In this case, they pay the surrogate for her role as a co-procreator. She gets paid for her gestational work, which can be distinguished from parental work. ¹⁶ Because, on this alternative approach, procreative work is different from parental work, accepting that one can charge for the former does not commit one to accepting that one can charge for the latter. This allows us to explain why a surrogate can get paid for gestating a child to term (and perhaps why a gamete donor may permissibly get paid for their sperm or egg), but the father cannot get paid to relinquish his rights over his toddler (to be sure, he can permissibly put the child up for adoption if he sincerely believes he won’t do a good enough job at parenting; he cannot, however, profit from it).

We can now see the tension at the heart of the surrogacy-as-legitimate-work strategy. For exceptionally demanding work to count as legitimate, workers must have their broad moral right to opt out protected by our social and legal practices surrounding work. No matter how devastated other parties will be if workers don’t continue delivering the fruits of their labour, workers have a moral right to stop doing work that is exceptionally demanding. In the case of surrogacy, this means having a moral right to have an abortion (even for trivial reasons) or to change one's attitude to the pregnancy and stop seeing it as work.

At the same time, to be a moral parent is to have ultimate authority over the child, including the foetus qua future child. The moral parent has the moral authority to make high-stakes decisions about what is in the best interest of the child or the foetus qua future child. During pregnancy, this could be a decision about who else (if anyone) gets to be a moral parent, health treatments or obstetric care. It could also be a decision about the interests of the foetus after birth (e.g. who will take time out of work to care for the child after she is born, will she be breastfed/chestfed, etc.).

There is, of course, a question about when moral parenthood begins. I think it is plausible to hold that the moral parent becomes a moral parent when she chooses not to have an abortion in standard non-assisted cases of procreation, or when she chooses to contract the services of other procreative parties in cases of assisted reproduction (i.e. surrogacy and gamete donation). This means that once the intending parent hires the surrogate and there is a growing foetus in her body, the intending parent becomes the moral parent and so acquires ultimate authority over the foetus qua future child. Other parties simply lack the authority to end the foetus’ life or the authority to unilaterally displace the intending parent as moral parent (Ferracioli, 2023) . ¹⁷

There is of course a temptation to think that moral parenthood only starts after birth. Those who hold this view would claim that the surrogate has a moral right to immediately opt out during pregnancy, but the intending parent has no ultimate authority over the foetus before birth.

Although I can see the temptation of endorsing this view, the costs would be very high. This is because even foetuses are so situated that important decisions about their welfare or future interests sometimes need to be made. For example, a foetus that is small for gestational age could either be constitutionally small, suffer from a congenital disorder or be negatively affected by the gestational environment. This raises the question of whether to expose the foetus to amniocentesis to discover if a congenital disorder is at play. Given that the procedure has a 1% chance of miscarriage, I take it that reasonable people will disagree on whether this is a reasonable response (Tabor et al., 1986). Note though that if neither the surrogate nor the intending parent has the authority to decide what is in the best interest of the foetus in this particular case, authority will fall on no one or it will fall on the state, both of which put the foetus in a perilous position. The thought here is that foetuses are better off if ultimate authority is exercised over them by parties who value them as future children and who hope to enter into a loving parent–child relationship with them, as opposed to no authority being exercised at all or on the part of representatives of the state. In short, foetuses are better off if moral parenthood starts before birth. ¹⁸

I hope it is now clear why the surrogacy-as-legitimate-work strategy does not work. Either the surrogate is denied the moral right to opt out, or the intending parent is denied the moral right to have ultimate authority over the foetus, which is a necessary component of moral parenthood. Commercial surrogacy is thus in tension with the very plausible view that our social and legal practices around work should be such that all parties are typically able to exercise their core moral rights. Unless we radically revise our understanding of either work or moral parenthood, commercial surrogacy remains morally indefensible.

Objections

We have just seen why the moral right to opt out by the surrogate makes moral parenthood by the intending parent impossible. Conversely, moral parenthood on the part of the intending parent during gestation makes the protection of the broad moral right of the surrogate to opt out impossible. One of the parties’ core rights will always be left unprotected by commercial surrogacy. This renders it an illegitimate form of work.

Critics can raise four objections in response to the discussion so far. The first objection calls attention to the fact that, under non-ideal conditions, moral rights conflict all the time. The second objection reminds us that there is no unconditional legal right to abortion in many liberal democratic states, which puts pressure on the idea that there could be an unconditional moral right to have an abortion. The third objection puts pressure on the scope of parental authority in pregnancy. The final objection tells us that I have proved too much and that the account leads to all forms of co-procreation being morally illegitimate.

Let me start by responding to the concern that moral rights conflict all the time, and that even if I have been successful in showing that there is in fact a conflict, nothing of theoretical or practical significance follows.

I agree that moral rights conflict all the time under non-ideal conditions, but I disagree that the best response to this fact is just to accept this conflict. Surely when it comes to the basic arrangements of a liberal democratic society, it is important to design our institutions and core practices in such a way that conflicts between core moral rights do not arise. In fact, I would go as far as to suggest that one of the goals of political philosophy is precisely to try and imagine a social and economic world where all citizens have access to their core moral rights, even if they sometimes choose not to exercise them. In the case of surrogacy, this conflict of core moral rights would lead to the verdict that commercial surrogacy is morally impermissible, and that citizens of liberal democratic societies ought to ideally seek adoption or altruistic surrogacy in lieu of commercial surrogacy.

Let me now move to the legal objection. The worry here is that the surrogate cannot have a moral right to opt out at any time during the pregnancy because there is no unconditional legal right to have an abortion in most societies around the world.

There are many things to say in response to this objection. One is that even in countries where there is no legal right to abortion, such as Honduras, El Salvador and Nicaragua, pregnant citizens do have a moral right to have an abortion. Legal rights do not determine moral rights. Even in restrictive societies, surrogates would still have a moral right to opt out, and this would still conflict with moral parenthood on the part of the intending parents.

To be sure, there is a more charitable reading of this objection: the moral right to have an abortion is not unconditional because many of the defenders of abortion believe that there ought to be some moral and legal limits in place. Many believe that there is something indecent about a late-term abortion for trivial reason, for instance (Thomson, 1971). ¹⁹ Moreover, the ethics of late-term abortion is a difficult topic, and it would be preferable not to take a stance on this controversial issue in order to make progress on the legitimacy of commercial surrogacy.

Luckily, there is no need to take a stance on the ethics of late-term abortion for the argument to go through. For those who believe that late-term abortion is morally permissible, nothing changes about the scope of the argument. For those who believe that it is not morally permissible to end the life of the foetus for trivial reasons once she is (say) conscious, they can narrow down the claim made earlier about the moral right to have an abortion on the part of surrogates. This right would simply not extend to the third trimester. ²⁰ Opting out towards the end of the pregnancy would only be permissible by changing one's attitudes towards the pregnancy and ceasing to see it as work.

A third objection holds that the right of intending parents to exercise authority over the foetus need not be so broad in scope. The strategy here is to agree with me that the surrogate has a broad moral right to opt out but then hold that the intending parent's moral rights relating to the foetus are merely those that are compatible with the surrogate's right to opt out. In other words, this objection concedes the surrogate's broad right to opt out but argues that the intending parent's authority can be limited to what is compatible with that right.

While this compromise appears to resolve the conflict, I believe it undermines the very concept of moral parenthood. After all, the decision to opt out is just the decision to prevent the intending parent from exercising authority over the foetus. No one would seriously think that I am still a moral parent to my child if the babysitter has the moral right to take her home and start parenting her. A critic may continue to call the intending parent a moral parent in this scenario, but then I believe we are referring to very different things. And of course, if the intending parent lacks moral parenthood from the outset, then what they receive at birth is not the result of a commitment to the child. Rather, it is a purchased transfer of parental status. That is precisely what critics mean by baby-selling.

Let me finish with the objection that I have proved too much, and that standard forms of non-assisted procreation in heterosexual relationships become impermissible since the woman has a moral right to opt out of pregnancy grounded in (say) bodily integrity and yet the genetic father may count as a moral parent before birth, and so be the one with authority to decide if the foetus dies or lives. If this is true, then even standard heterosexual procreation makes it impossible for both parties to have their core moral rights protected. This amounts to a reduction ad absurdum of my account.

Recall that I am assuming that the correct account of moral parenthood is voluntarist, such that the genetic father does not get to be a moral parent merely due to the genetic connection to the child. For him to be a moral parent during pregnancy, he must have already committed to or volunteered for the role. Moreover, and this is crucial, because the pregnancy takes place in the woman's body, she needs to consent to him becoming a moral parent during gestation. The upshot here is that the genetic father needs to be in a similar position to the intending father in commercial surrogacy who arguably commits or volunteers to the role by being one of the parties who set the surrogacy process in motion.

Such a requirement will rule out all sorts of cases where the genetic father does not know about the pregnancy or has not taken any of the steps you would expect from a committed parent. It will also rule out cases where the woman has decided not to include the genetic father in her procreative enterprise. In such cases, there is no conflict between the moral right of the pregnant woman to have an abortion and the moral right of the genetic father to exercise ultimate authority over the foetus since he lacks any such authority.

What about cases where the genetic father and the gestational mother are both moral parents? Doesn’t that necessarily lead to a similar conflict?

The short answer is no, but such cases are still complicated. For one, the moral right to have an abortion in such cases would not be grounded on the right to opt out of work, but on the moral right to bodily integrity. But most importantly, when both moral parents disagree about whether to continue with a pregnancy, the gestational mother's right to bodily integrity will tip the scale. This is not because her right to have an abortion conflicts with his right to exercise ultimate authority over the foetus, since authority here is held jointly. Because they both have ultimate authority on the matter, the conflict is of a very different kind. Although it sometimes can be difficult, it is not impossible to both protect the bodily integrity of the gestational mother and the moral right of both moral parents to jointly exercise ultimate authority over the foetus. This can be done by requiring non-trivial reasons for the abortion, which can be justified on independent grounds given that both parties are moral parents. Indeed, for the woman to actively create the conditions for the genetic father to become a moral parent, getting him to become deeply committed and invested in the pregnancy, and then for her to one day decide to have an abortion for a trivial reason is for her to wrong him. Having created the conditions for someone else to become a moral parent with her, she now owes that person a good justification to retract from this joint moral commitment. ²¹

The same would be true of altruistic surrogacy. Once an altruistic surrogate mother decides to co-procreate with a friend or sibling to help them become parents, she embarks on a process of co-procreation to support someone else she cares deeply about to become a moral parent. In so doing, she treats them as moral parents from the get-go. She therefore owes them a non-trivial reason to rescind the offer once they have already become invested in the pregnancy.

Co-procreation outside of commercial surrogacy does not, therefore, inevitably lead to a conflict of core moral rights – although it can lead to conflicts under some conditions. This is because there is an asymmetry between commercial surrogacy and other forms of co-procreation. In the first case, we have a moral right to opt out that is quite broad in scope on the basis that gestation is a form of highly demanding work. In the second case, we have a right to bodily integrity on the part of the pregnant person and a joint moral project between two or more people who at one point committed to co-procreate. Whereas the commercial surrogate holds the moral right to opt out even for trivial reasons since she is performing exceptionally demanding work, the pregnant person in non-commercial co-procreative cases has a right to bodily integrity but also a moral obligation to her partner, friend or sibling to provide them with a non-trivial reason for walking away from this joint moral enterprise once there is already a foetus in the picture.

Conclusion

In this essay, I have assessed the most compelling defence of commercial surrogacy – what I have called the surrogacy-as-legitimate-work strategy – and argued that it cannot succeed on its own terms. The strategy requires accepting two assumptions that are independently plausible: first, that surrogates must possess a broad moral right to opt out of gestational labour if that labour is to count as legitimate work; and second, that intending parents must be regarded as the moral parents from the beginning of the surrogacy process in order to avoid the implication that moral parenthood is being bought and sold. These assumptions, however, cannot be jointly maintained. The commercial surrogate's right to opt out is incompatible with the intending parent's claim to exercise parental authority even during pregnancy. Conversely, recognizing the intending parent as the moral parent during pregnancy negates the surrogate's broad right to opt out, thereby undermining her autonomy.

Proponents of the surrogacy-as-legitimate-work strategy cannot respond to this challenge by idealizing their assumptions. The conflict here is not a contingent conflict arising from unjust social conditions, but a structural tension within the practice of commercial surrogacy itself. It is because of the nature of pregnancy that gestation for a living or for profit could only count as legitimate work under conditions where the commercial surrogate retains a great deal of control over the provision of gestational labour. And this would be true even under ideal social and political conditions. The upshot of my discussion is that defenders of commercial surrogacy are better off developing alternative defences of the practice, while policymakers should treat commercial surrogacy as morally illegitimate even if additional moral considerations, such as the negative consequences associated with a black market, or the exploitation of commercial surrogates in the developing world, may tip the scale in favour of legalizing the practice.