Analyze the problem of surrogacy from the perspective of economics.
Editor’s note: This article is from the micro-channel public number “Chi Society” (ID: zhibenshe0-1), Author: SD president.
Recently, Zheng Shuang and Zhang Heng opened the tip of the iceberg in the surrogacy industry. Surrogacy is a globalized gray industrial chain and a difficult human ethical issue.
Surrogacy presents two completely contradictory worlds to people: it is the only way for couples with childbirth disorders to have their own children, and it provides a livelihood income for poor surrogates; the relationship between the client and the surrogate is completely free and voluntary , Independent transactions. However, from the outside world, surrogacy has reduced women to fertility tools, challenging the bottom line of ethics and law. This article analyzes the problem of surrogacy from an economic perspective.
this article logic:
First, the contradiction of surrogacy
Second, the legitimacy of behavior
Three, the endogeneity of the system
01The contradiction of surrogacy
Surrogacy, commonly known as “born through the abdomen”, is an embryo implanted in the womb of the surrogate mother from the in vitro fertilized egg, and then the surrogate mother will conceive and give birth.
Surrogacy is not new. There are friends around me who get their own children through surrogacy. The excitement, happiness, and satisfaction of having their own children may exceed that of ordinary parents (although they cannot be compared). As a friend, I am pleased with this. But from an academic point of view, I have to think rationally.
Many people criticized that this is a way of giving birth to the rich. Of course, it is impossible to pay tens or even millions of surrogacy fees without certain economic strength. But tearing off the cognitive label of “rich people”, we can understand more real individuals with warmth.
In the eyes of the participants, surrogacy is not only their freedom to choose their childbearing methods, but also the only choice to obtain their own children. Usually, they may be couples with fertility disorders, couples who have missed their childbearing age, couples who have delayed having a second child due to the fertility policy, couples who are unable to reproduce after “losing alone”, or homosexuals. .
“According to a study by Frost & Sullivan, the global prevalence of infertility rose from 11.0% in 1997 to 15.0% in 2017, and China also reached 15.5% in 2017. This means In 2017, there were about 47.7 million infertile couples in China, which is expected to increase to about 56.2 million in 2023. According to the latest demographic data, the number of women of childbearing age in China at the end of 2018 was 346 million. [1]”
“The combination of the two sets of data means that for every 100 women of childbearing age, nearly 14 cannot give birth normally.” This data may exceed many people’s estimates. It may be difficult for most people to appreciate their feelings. In China, these couples are under tremendous pressure. They are anxious, self-blaming, tolerant, ashamed to speak, and unable to express their demands normally. As a result, it is difficult for them to arouse universal empathy in society. However, they may be moving silently. After numerous attempts to seek medical advice and medicine to no avail, qualified couples chose surrogacy.
I have two couples of friends, one of whom is a technician. When I was young, I missed the best childbearing age for working hard. Later, they obtained their children through surrogacy technology in the states where surrogacy is legal. In their words, it is a great regret in life. The other couple was not so lucky. They obeyed the childbirth policy and had only one child, but the child unfortunately left when they were in their teens. They became “lost” couples who could no longer give birth naturally.
How many “lost independence” families are in China? It is estimated that more than 10 million families have suffered the loss of a child. Among these people, the most painful is the couple who lost their independence and could no longer have children. The number of such couples increases by 76,000 each year, and the total number exceeds one million. My couple friends have never been out of the shadow of losing their independence. The best way to comfort their emotions is to get the children again. They have also sought surrogacy technology, but the country is in a gray area, Cambodia and Thailand dare not go, and the cost of going to the United States for surrogacy is beyond their affordability.
After the Zheng Shuang surrogacy incident broke out, he also sent me a long WeChat message to the effect that if domestic surrogacy is legalized and standardized like the United States, the price and risk will also decrease, and they may be able to own themselves again. Child. But now this if it seems to be indefinitely, as the two couples get older, the possibility of having a child becomes less and less, and the shadow of losing independence becomes more and more serious. After reading it, I felt uncomfortable. After consulting his opinion, I wrote the matter in this article.
In 1976, an American lawyer named Noelle Keane drafted the world’s first surrogacy contract. Keane insists on safeguarding the legality of surrogacy and believes that providing surrogacy to infertile couples is a humanitarian act. Keane suffered various accusations from religion, law, and ethics at the time. But many couples who got children through surrogacy are very grateful to him. In their view, Lawyer Keane understood their misfortune and pain.
However, the outside world’s perception of surrogacy is another completely different view, and this view seems to occupy the majority.
Surrogacy is most likely to cause ethical issues. According to the different sources of sperm and egg of surrogacy, it is divided into self-sperm and ovum, self-sperm and fraternal ovum, different sperm and ovum, fraternal sperm and ovum. Many surrogates are self-semination and self-egg, but the other three types are also increasing rapidly in recent years. The latter three types are easy to trigger ethical issues, and the core is the child’s blood relationship. In 1986 there was a work in the United StatesCustody case triggered by the surrogacy agreement The client, William Stern, was unable to get pregnant due to his wife’s illness, so he found a surrogate, Whitehead, to help them fulfill their desire to have a child. However, after the child was born, the surrogate broke the contract and refused to give the child to the Sterns. So the two sides went to court.
This is a type of self-sperm fraternal eggs. The surrogate provides eggs, which means that the child is related to the surrogate. The difficulty for judges is that there is no reference to such cases. The legal mother of the child depends on the contractual relationship or the blood relationship? As a result, the judge ruled that Whitehead was the child’s legal biological mother, but according to the principle of “best interests of the child”, custody rights were obtained by the Sterns and Whitehead was granted visitation rights. However, the two parties continued to appeal until 2004 when the child became an adult, they terminated Whitehead’s parental rights and designated the Sterns’ reproductive rights through the adoption procedure [1].
In this judgment, the judge ostensibly took into account the validity of the contract and blood relationship, but did not face the issue of the legitimacy of surrogacy. In this case, is this an adoption contract or a transaction contract? Does the surrogate constitute the sale of the child, even though she later broke the contract? Or, is the act of selling children or eggs or sperm that may involve surrogacy, is it justified? Does this pose a challenge to ethics and law?
Another ethical problem comes from the homosexual community (non-discrimination). Homosexuality is originally an extremely complex ethical problem. They generally adopt non-self-semination and self-egg surrogacy to obtain children, which intensifies the complexity of the ethical problem.
The ethical issue of surrogacy also comes from non-humanitarianism, which means reducing women to fertility tools. After the legalization of commercial surrogacy in 2002, India quickly became the global “surrogacy paradise”, with an annual output value exceeding 10 billion US dollars [2]. But behind this figure is the painful experience of countless women. In this business, childbirth has become a market, and surrogate women have become fertility tools. Once this kind of market is formed under the permission of the law, many behaviors exceed the bottom line of ethics.
The market prioritizes efficiency (utility). In order to increase the success rate of fetal cultivation, surrogates will receive multiple births. In India, up to 5 embryos are allowed to be implanted. Multiple births not only greatly increase the risk of delivery by the surrogate, but also increase the infant mortality and deformity rate. “An even more sad fact is that the number of these multiple births often exceeds the number required by the customer couple, so some of them will be destroyed when they are formed. [2]” Because of the growth rate of female chicks Slower than males, so chicken farms use machines to destroy almost all female chickens every day. This happened to people, how to accept it ethically?
Critics sympathize with surrogates and refuse to reduce women as fertility tools; but surrogates believe that these superior moralists have destroyed their livelihoods. Critics believe that surrogacy agencies make huge profits, but the latter believe that this market has always existed. It is precisely the prohibition of the law that leads to opacity of information and pushes up generation.The cost of pregnancy.
So, surrogacy is a contradiction. On the one hand, it is a humanitarian technology to solve the suffering of infertile families, and on the other hand, it reduces women into reproductive instruments; on the other hand, it allows the poorest and lowest families to obtain an income; on the other hand, it breaks the bottom line of social ethics. The baby suffers a miserable fate, and the poor cannot Save the body.
02The legitimacy of behavior
Some people believe that the best way to solve this problem is the law.
There are 26 states that legalize surrogacy in the United States. In these states, surrogacy procedures are quite standardized. In the United States, if there is no medical reason, such as fetal malformations, genetic diseases, etc., abortion is not allowed. This avoids a humanitarian disaster like India. After six or seven months of pregnancy, parents go to the local court to apply for parental rights. The court will specify that the pregnant person is the surrogate mother, so as to avoid legal disputes after the child is born. After the child is born, any refusal to fulfill the surrogacy contract or abandonment will be punished accordingly.
However, we need to think about a deeper issue, which is the legitimacy of the law.
Whether surrogacy is allowed or prohibited is legally sufficient? Globally, this issue is controversial in legal circles. Surrogacy is forbidden in France, Switzerland, Germany and other countries. It is legal in Greece and Cyprus. Non-commercial surrogacy is allowed in the UK. Surrogacy is allowed in some areas of the United States, Russia, and Ukraine, while surrogacy is prohibited in some areas. Among them, Ukraine is called the “European womb.” India, Thailand, Cambodia, Nepal and other Asian countries allowed commercial surrogacy, but later announced the prohibition.
In China, surrogacy legislation is also quite controversial. The “Management Measures for Human Assisted Reproductive Technology” promulgated by the Ministry of Health in 2001 and the “Ethical Principles of Human Assisted Reproductive Technology and Human Sperm Banks” promulgated in 2003 both stipulate that medical institutions and medical personnel “must not implement any form of surrogacy technology.” Note that the objects of control are medical institutions and medical personnel, not surrogates and surrogacy technology. At the same time, these two documents are not laws, offenders do not constitute a crime, and the penalty cost is very low. The “Amendment to the Population and Family Planning Law of the People’s Republic of China” officially promulgated in 2016 deleted the “prohibition of surrogacy in any form” in the draft.
So, the legal profession is not uniform about this, what should we do?
The legitimacy of the law comes from the legitimacy of the behavior, and only the legitimacy of the behavior can have the legitimacy of the law.
In history, many laws have been overturned because they conflict with the legitimacy of behavior. The United States is a common law system. Whether the laws of the federal and state laws are effective depends on the Supreme Court of the Federal Republic. For example, after the national flag burning case in 1989, the relevant national flag protection laws of the 48 U.S. states and the Capital District of Columbia were unconstitutional.Invalidate. Later, the National Flag Protection Act passed by Congress was also overturned by the Supreme Court. The justices of the Supreme Court believe that according to the First Amendment to the Constitution, the act of burning the national flag is justified. Another example is the crime of speculation in China in the past. Later, it was considered that speculative behaviors such as short-sales, arbitrage and resale were justified. Therefore, the crime of speculation was removed when the criminal law was revised in 1997.
How to judge the legitimacy of behavior?
In the past, whistling to women was not allowed and was considered improper behavior or was convicted of hooliganism. Now this kind of behavior is allowed, it is only a matter of morality. What is the basis for judging the legitimacy of behavior?
In economics, externalities are often used to judge the legitimacy of behavior. If a behavior does not constitute an externality, it is considered legitimate. For example, I have the freedom of speech, which is legitimate; but I cannot rant in public places, which is not legitimate. why? Because roaring creates high-decibel noise, it affects others. This is externality.
Some economists deny externalities and believe that voluntary transactions are justified. I leased a piece of vacant land to a pig company to build a pig farm. This is a voluntary transaction and both parties make a profit. However, the odor from the pig farm prevents the surrounding residents from living. This is externality. Therefore, this transaction between me and the pig company was unfair.
Therefore, the legitimacy of behavior depends on whether freedom creates externalities. To use a Western proverb, “the freedom of your fist ends at the tip of my nose.”
Whether the surrogacy behavior is justified is based on whether this behavior creates externalities. Surrogacy is the free behavior of surrogates, medical institutions, intermediaries and those who need surrogacy. Surrogate mothers believe that although surrogacy causes physical damage, they voluntarily become reproductive tools in exchange for income to maintain their livelihood. What losses or negative effects does this behavior bring to others and society?
As mentioned above, in the global surrogacy industry chain, there are behaviors of abandoning and destroying formed babies, and this behavior constitutes a serious externality. The problem is that this behavior is not equivalent to surrogacy behavior. Is this externality caused by the act of surrogacy, or is it caused by imperfect laws?
Many people believe that it is the prohibition or imperfection of the law that has caused surrogacy to become a gray industry and breed these bad behaviors. If surrogacy behavior is regulated in the same way as the state where surrogacy is legal in the United States, it can protect both the child and the surrogate woman, the surrogacy behavior will not trigger the above externalities. In fact, abandoning babies and fighting for parental rights are not special products of surrogacy.
Even if these externalities are ruled out, surrogacy also involves an external problem that is suspected of selling babies-mainly referring to commercial surrogacy in which the surrogate mother provides eggs. Are these surrogate mothers selling eggs or babies? The parents’ appeal is a formed baby rather than an egg, and the baby is the core of the contract. The sale of babies constitutes a violation of the human rights of babies, and this externality determines this industryFor the impropriety.
Surrogacy may also produce another kind of externality, that is, the impact on social ethics, specifically the public psychological harm. The legitimacy of surrogacy means that the parent-child relationship is determined by the contract, not the blood relationship. The public may not be able to accept it conceptually.
Surrogacy behavior and prostitution behavior are similar in legitimacy. The externalities of prostitution mainly come from the spread of sexually transmitted diseases. Prostitution industry is not allowed in most countries in the world. But there are also a few countries, such as the Netherlands, that are allowed. These countries regulate the management of pornography, and service providers must hold a certificate to work and must have regular physical examinations. The purpose is to minimize the externalities of the transmission of STDs. Some people may ask why the rich are allowed to provide for their lovers instead of the prostitution industry? Mainly also external issues. The former is one-to-one or one-to-minority, and the latter is one-to-many, which easily leads to the spread of the virus on a large scale. Of course, externalities cannot be absolutely eliminated. Any transaction, such as taking the subway or buying fresh food, may be infected by the virus. The problem is that some viruses don’t know where they come from.
The prohibition of prostitution also takes into account the social and psychological acceptance. Some countries with more open sex concepts have a higher tolerance for the porn industry. Can surrogacy be prohibited or opened with reference to social ethics and public acceptance?
The question is whether there is a problem with the social concept or the behavior itself? In history, many behaviors have challenged traditional ethics and concepts, but they are often justified and advanced. If the externalities of social psychology are recognized, it will inhibit social progress. For example, more than 100 years ago, Chinese women were required to bind their feet, and the behavior of not binding their feet was not accepted by the social ethics and public psychology of the time. Therefore, considering the legitimacy of behavior from the externalities of social psychology, it is easy to fall into the dilemma of circular argumentation.
I think another theory is needed to explain the legitimacy of behavior, and that is internality. From an economic point of view, the existence of internality prevents traders from obtaining all potential trading income. I’m not sure whether the term “internality” is accurate. The existence of internality does not necessarily refer to improper behavior. Only the internality of human rights can lead to improper behavior.
The legitimacy of behavior depends not only on whether freedom creates externality, but also whether freedom creates internality that endangers human rights. It can be understood as “the freedom of your fists ends at the tip of your nose.”
In the field of economics, this part of the research is blank, and the essence is the definition of freedom. In the fields of political science, law and ethics, human rights are the prerequisite for all actions and rights. In other words, all human behaviors and rights cannot harm human rights-here mainly refers to the right to life. Individuals are not allowed to dispose of their bodies arbitrarily, and are not allowed to trade with their bodies. Although the law cannot completely prohibit the perpetrator from doing so (such as suicide), nor can it declare that the suicide is suspected of committing a crime, the suicide lacks legitimacy.
In the real world, why do the police rescue suicides? Suicide by jumping off the buildingPeople walking on the road may be killed. This is an externality. What if you hang yourself in a closed hut? This is an internal problem. Depriving others of the right to life is not allowed, and depriving one’s right to life is also unjustified. The police repeatedly rescued suicide attempts. Is it a waste of public resources? Violating one’s human rights is unjustified, so it is justified for the police to rescue suicides. If the police do not go out, they are suspected of dereliction of duty.
I make an assumption. According to a utilitarian attitude, individuals can dispose of their bodies at will. What will happen to this society? This will be an extremely terrifying society, where rich people can buy almost everything, including human bodies. The poor may not even be able to keep their fingers, legs, kidneys, heart, brain, and any organs worth trading. And these behaviors and transactions are completely voluntary and free.
Any behavior that harms one’s human rights is unjust, even though such behavior is free, voluntary, and voluntary. This can provide legitimate explanations for many laws, such as prohibiting the sale of organs, prohibiting prostitution, and contracts that use the body to make transactions or bets are invalid.
Therefore, surrogacy involves human rights issues and lacks legitimacy. The surrogate uses the body and uterus as tools, and treats the child born as a traded commodity. This harms both the human rights of self and the human rights of children. This is both internal and external.
03 endogenousness of the system
Economists generally advocate individual liberalism and are quite cautious in intervening in systems and individual behavior. It is not enough for economists to restrict individual behavior with externalities. The Austrian Rothbard believes that the human body is personal property [3]. Roche advocates absolute protection of individual private property rights to prevent infringement from institutionalization. But can individuals dispose of their bodies as freely as real estate?
The freedom to dispose of the body is different from the freedom to dispose of property. Transaction of real estate is free and efficient if it does not generate externalities. However, trading the body, even if it does not produce externalities, will also produce internalities that endanger one’s human rights, which is not justified.
I think the theory of economics has boundaries and premises. Economics discusses the efficiency of resource allocation, behind which is human behavior, and the premise of human behavior is “a person in a complete sense”.
A ten-year-old child, we cannot regard him as a full-fledged worker. Employing child labor is harmful to the physical and mental growth of children. This behavior lacks legitimacy, so the law prohibiting child labor is introduced. Miners let miners work in dangerous mines. Although the miners know and work voluntarily, this behavior endangers the lives of miners and is unjustified and not allowed. However, it is impossible to completely eliminate risks, absolutely safe and efficientThere is a balance interval between them. At what small risk is employment and production justified?
In statutory countries, laws related to safe production and underground operations give some clear safety standards. In case law countries, judges will give some judgment standards based on efficiency and safety, such as the Hande formula. Regardless of the standard, endangering personal safety should be a small probability event.
The current surrogacy behavior is based on existing technology, and this behavior lacks legitimacy support. However, as technology advances, the legitimacy of behavior will also change. Couples who are unable to give birth naturally and parents who “lost alone” may have the opportunity to obtain children in a legitimate way.
If the technology advances and there is no need for a surrogate mother, medical institutions can create an instrument similar to the uterine environment to get pregnant. This solves the internal human rights issues of surrogate mothers, and does not involve the external issues of child sales. If it involves the transaction of sperm and eggs, it can only be solved by non-commercial donations. If the sperm and eggs are taken from the couple, there is no blood ethics problem, and the medical institution only helps these couples who cannot get pregnant naturally or do not want to give birth by themselves to provide external conception, pregnancy and childbirth services. This kind of “surrogacy service” of medical institutions is legitimate and easier to be accepted by the public and the law.
There is a direct relationship between the legitimacy of behavior, the legitimacy of the contract and the legitimacy of the rules. The legitimacy of behavior derives the legitimacy of the rules, and the legitimacy of the rules protects the legitimacy of the contract.
In my article “Trump’s Political Death”, I presuppose the legitimacy of the rules, that is, I recognize that the First Amendment to the U.S. Constitution is justified. why? Because freedom of speech, like the right to life, belongs to human rights. The prohibition of speech is unjustified, so the First Amendment to the Constitution protects freedom of speech. Twitter is not a public institution and does not involve unconstitutional issues, but its user agreements and account bans are improper. The problem in the middle is that Article 230 of the 1996 Communications Standards Act did not explicitly deprive the platform of review rights based on the principle of equal responsibility and power. The platform is the private property of Twitter, but individuals have extended property rights to their accounts. This property right is presented on the Twitter platform through an agreement. There is a theory in the property rights theory called “relative property rights”, that is, the ownership of rights and interests agreed in the contract [4]. The property rights of personal accounts belong to this kind of property rights, and the Twitter account is equivalent to infringing on the property rights of personal speech. If Twitter terminates service due to bankruptcy, users must also be notified in advance to back up their personal information.
A problem facing economics is that economists rarely pay attention to the legitimacy of individual behavior, but blindly praise the freedom of individual behavior. This makes it difficult for economists to explain many legal issues and can’t do anything about social issues. (Community friends who are interested in economics can continue to look down)
Economists adhere to methodological individualism, believe that the system is exogenous, and remain vigilant to the law. In this way, it is difficult for economists to resolve the gap between the public decision-making mechanism of the system and the spontaneous order of the free market.contradiction. Simply put, democratic voting cannot replace free competition.
During the legislative process, if 99 out of 100 members agree and one opposes, this law is effective. But economists may not think that the optimal efficiency in economics is Pareto optimal, and transactions cannot cause damage to others. This law caused damage to the interests of an opponent. If economists accept the public decision-making mechanism, problems arise. Suppose in one day’s stock trading, a sharp drop in the stock market causes 90% of people to suffer damage and 10% to benefit. Then, traders initiated a public vote, and 90% of them agreed to veto today’s transaction and implement a transaction rollback. This threatens the fairness of the free market.
In essence, this is an endogenous problem of the system—the public system does not conflict with individual behavior, and the public system is endogenous to individual behavior. Economics has not solved this problem, so that it has some profound conflicts with political science, sociology, and law.
Buchanan, the founder of the public choice school, is the economist closest to this problem. He adopted the principle of collective unanimous consent, and believed that no one was harmed by public decision-making that everyone agrees to, that is, Pareto optimal, which does not contradict the spontaneous order of the free market. However, Buchanan’s solution is still a superstition of methodological individualism, lacking affirmation of the legitimacy of behavior, contracts and rules.
So, economists must return to the perspective of “legitimacy” to solve the problem of system endogenity. Pigou’s theory of externality actually contains endogenous logic. Pigou put forward the condition of optimal market efficiency in the highly criticized “Welfare Economics”, that is, private marginal revenue = social marginal revenue [5]. This equation means that when “no one can take advantage of others” (the legitimacy of behavior), the economy is optimally efficient and theoretically there are no externalities.
According to the above analysis, behaviors without externalities are considered legitimate, and the resulting law, that is, the law of private marginal revenue = social marginal revenue, is also legitimate. But the internalities analyzed above need to be added. An individual’s behavior is not justified if it produces internality that endangers one’s human rights. The law derived from the combination of the two is justified.
This is the process from the legitimacy of behavior to the legitimacy of the law. Of course, the legitimacy of the contract must be added in between. I once proposed that the system is the publicization of individual contracts. The legitimacy of individual behavior and the legitimacy of individual contracts are derived. The publicization of individual contracts forms the law. The law of legitimacy in turn protects the legitimacy of individual contracts and encourages individual behavior. The latter is what North’s new institutional economics explains. This is the logic of system endogenity.
I will use an example to illustrate: gene editing.
The ethical and legal issues involved in human gene editing are more complex than surrogacy, but the logic of the analysis is the same. Is human gene editing justified?
The externality issue here is, Once gene editing goes wrong or triggers irreversible consequences, it will endanger the survival of human beings. At the same time, gene editing has broken the equality of human rights. For example, the right to life is time-effective and disappears with the end of the human body’s natural life span. If the gene editing of embryos extends the natural life span of some people to 500 years, or increases their intelligence and height, does this undermine the equality of human rights? Does manual editing of embryos without congenital diseases constitute a violation of infant human rights? These behaviors lack legitimacy, and European and American laws strictly control gene editing. Gene editing for the purpose of treating congenital diseases will be more legitimate, but it must also be sufficiently cautious and impose strict legal constraints.
The advancement of science and technology changes human behavior, gene editing and surrogacy are also evolving. The wisdom of economics, politics, ethics, and law is not a dogma, but a set of reliable theories to judge the legitimacy of these new behaviors , Thereby ensuring the legitimacy of the law.
This is the wisdom of “technology for good”.
References
[1] The surrogacy industry chain torn apart by Zheng Shuang, Netease Finance;
[2] Surrogacy factory, here, Cat Situ, Earth Knowledge Bureau;
[3] The Ethics of Freedom, Murray Rothbard, Fudan University Press;
[4] New Institutional Economics, Eric Frubotton, Rudolph Richter, Shanghai People’s Publishing House;
[5] Welfare Economics, Pigou, The Commercial Press.