Tuesday, September 15, 2020

On The Markets For Surrogacy And Sex Work


On Surrogacy


A July NYT article frames the question of surrogacy as pitting two progressive causes (feminism and LGBT+ rights) against each other.  It also introduces us to a rather surprising concept of fertility rights:

While plenty of New Yorkers have formed families by gestational surrogacy, they almost certainly worked with carriers living elsewhere. Because until early April, paying a surrogate to carry a pregnancy was illegal in New York state.

The change to the law, which happened quietly in the midst of the state’s effort to contain the coronavirus, capped a decade-long legislative battle and has laid the groundwork for a broader movement in pursuit of what some activists have termed “fertility equality.”

Still in its infancy, this movement envisions a future when the ability to create a family is no longer determined by one’s wealth, sexuality, gender or biology.

“This is about society extending equality to its final and logical conclusion,” said Ron Poole-Dayan, the founder and executive director of Men Having Babies, a New York nonprofit that helps gay men become fathers through surrogacy. “True equality doesn’t stop at marriage. It recognizes the barriers L.G.B.T.s face in forming families and proposes solutions to overcome these obstacles.”

Notice how "creating a family" and "forming families" are used in that quote.  It's quite clear that they are not including adoption as one way families can be formed.

Though this particular article focuses on gay men and fertility,  the "fertility equality" concept would actually apply to people, in general.  That right to pass one's genes on would not apply only to, say, gay men, but to all individuals, whether partnered or not, including all who are either medically infertile or who don't have physical access to a uterus, sperm or eggs.

After reading that NYT piece I felt uncomfortable and a little scared.  On the one hand I truly sympathize with all who yearn to have children and cannot, for whatever reason, and I also understand the activists' argument that heterosexuals have always been in a better position to pass their genes on than homosexuals, and that there is a certain existential unfairness about that.

On the other hand, my mind flashed me pictures of a dystopian future where a certain sub-class of women, largely defined by abject poverty and possibly also by race or ethnicity,  would become global breeders for the wealthiest socially or medically infertile individuals and couples.

The clear dangers this new movement would pose, should it become widespread, ought not to be swept under the progressive carpet:  The increased demand for surrogacy it would create would be satisfied by poor women with few other income-earning alternatives (1), and the clear power imbalance between the two parties in any such surrogacy contract would require, as a minimum, strong regulatory oversight (2). 

I also don't agree that any of us has a fundamental right to biological parenthood, though I do believe that we have the right to refuse it (3).

But my discomfort with this story has also to do with the way it plays across the sex classes male and female.  While the benefits from easier access to wombs (as well as to eggs and sperm when surrogacy is interpreted in a wider context) are likely to be greater for men as a class (4), the negative consequences of that easier access are almost completely concentrated on women as a class:

The medical risks of donating or selling sperm are minimal, but egg donations or sale require the injection of hormones and an invasive procedure (under sedation) to retrieve the eggs (and nobody seems to have studied the possible long-run health effects of that), and gestational surrogacy (5) is at least as risky as pregnancy in general and probably even riskier.

More importantly, the commercial market legal surrogacy creates is best understood as one of the markets (6) which sells or rents access to the sexual/reproductive parts of the female body.  Though labor markets, of course, can in general be viewed as sites where we rent out our bodies (and minds) for various tasks, the difference here is that the markets trading in access to the sexual/reproductive parts of male bodies are extremely tiny when compared to the markets trading in access to the sexual/reproductive parts of female bodies.

That difference matters when judging the desirability of markets for legal surrogacy.  It matters even more when we remember that globally we are still quite far from true equality of men and women and that in some parts of this world women have little say over how their bodies might be used.  In such places a vibrant market for surrogacy could create yet another way for others to exploit vulnerable women.  Surrogacy can become a big business and those most likely to financially benefit from it are probably not the surrogates but the owners of surrogacy agencies.

On Sex Work

Sex work (7) is another example of a market where most of the trading is about access to the sexual/reproductive parts of the female body.  Although both men and women work in prostitution, the majority of those working in the industry are female.  What's even more fascinating is the fact that pretty much all of its customers are male (8).
I believe that those characteristics of this market place should be kept in mind when we debate such questions as the legalization or decriminalization of prostitution, the Nordic model, sex trafficking and so on:  The supply side consists of mostly women while the demand side almost entirely consists of men. 
Remembering that difference matters, because it is not only the sex workers (and the managerial level employees (including pimps) as well as those who own the industry) who are affected by the various initiatives; it is also the customers of the industry.  
For instance, decriminalization also decriminalizes the consumption of paid sex while the Nordic model only decriminalizes the sale of sex.  The former benefits the consumers of commercial sex, the latter does not.  One consequence of this is that decriminalization of sex work is likely to cause a greater increase in demand for commercial sex than the application of the Nordic model.
I do not intend to dive into the turbulent debates currently taking place around the question of whether it would be a good idea to decriminalize all sex work (9).  But I do want to point out that much of that debate ignores the fundamentally gendered structure of the sex industry and so treats the generic sex worker as an individual apparently equally likely to be male as female (10). 
The position of women in many countries is still very unequal with that of men and this results in a power imbalance between sex workers and their clients.  Thus, the conditions under which sex workers operate deserve extra-careful scrutiny and monitoring, both to minimize the danger that people are being forced into the industry as well as to protect the bodily safety of the workers and to stop them from being exploited by the owners of firms in the industry.


(1)  Places where paid surrogacy is or has been legal include Russia, India and Ukraine, though India is in the process of curtailing it. There are negative reports from Ukraine on the unregulated aspects of the industry, including ill-treatment of the surrogates, but the country has been a popular destination for foreign couples seeking a surrogate.  

Likewise, some earlier reports from India talk about the exploitation of the surrogates while others point out that surrogacy is one of the few available ways for the poorest of women to improve the lives of their families and themselves.  I was unable to find out much about the Russian surrogacy industry except that it seems vast and caters to foreigners looking for a surrogate and that a recent human trafficking case exists against some surrogacy agencies.

(2)   Those able to afford surrogacy are likely to be much wealthier than the women agreeing to be surrogates and this gives the former more power.

And, as Gloria Steinem noted in her letter opposing the new surrogacy law in New York state, creating a market for surrogacy is not that far removed in its risks from allowing a commercial market for, say, kidneys, and it should be scrutinized equally rigorously.  

The new New York law does provide some safeguards against the exploitation of the surrogate, but in my opinion it still has several problems, including the fact that it places no upper level on how many surrogacy pregnancies a woman can undertake.

(3)  I mean that in general, not in the sense of judging different groups of potential parents against each other.  This is because becoming a genetic parent requires the participation of another person and results in yet another person being born, and the well-being of those other individuals also matters.  

The danger in using the rights-language in this context is that it disguises the possibly unsavory ways in which those rights could be satisfied by ignoring the well-being of others.  The commercialization of women's reproductive systems is one of those unsavory ways.

 (4)  Because Lesbian (female-bodied) couples, to pick one example, are much less likely to need a surrogate than gay couples as in most cases they already manage access to a uterus.

It's also true, however, that the situation where commercial surrogacy is illegal offers Lesbian couples more alternatives to having their own genetic children than it does to gay couples.  This is because it is easier to acquire sperm than eggs and acquiring those is far, far easier than finding someone who is willing to undergo pregnancy on behalf of others for altruistic reasons, the only kind of surrogacy which is allowed when commercial surrogacy is ruled out.  And gay (male-bodied) couples don't have wombs.

(5) A gestational surrogacy does not use the surrogate's egg(s).  This means that she is not genetically related to the child she produces. 

 (6) The others, today,  are markets for sexual services of various kinds.  A historical example of another similar market is wet nursing.

(7) This term is often used very widely, to include not only what is called prostitution but also the creation of pornographic material, exotic dancing and so on.  It is also sometimes applied to people who do no direct sex work, such as owners of escort agencies or pimps.  In this post I use the term to refer to only direct hands-on (!!) type of sex work.  Prostitution would be the closest match to the way I use the term in this post.

(8) Indeed, the term "sex work" doesn't tell us that the work is aimed at bringing sexual relief not to every adult but to a mostly male clientele.  There is very little sex work aimed at the female market out there.

I realized that last night, so want to share it with you! 

It might be time to remind everyone that although most consumers in the markets for sex are men, most men are not consumers in the markets for sex.  Likewise, although most sex workers are women, most women are not sex workers.  The point, of course, is not to make false generalizations or to attribute genetic guilt to, say, all male-bodied people. 

(9)  Because all my haz mat suits are in the laundry, but also because to say something meaningful requires empirical evidence I have not been able to find.  

The amount of evidence that is needed is so enormous that I can't even think of a quick way of summarizing it, but it should certainly cover thorough demographic, earnings and life-long health information on large samples of sex workers, from the highest paid escorts to those who work in the streets,  the actual hierarchical structures of sex work firms and the profits they make, comparative data from countries with different legal rules about how to handle prostitution and how those differences affect sex trafficking and the well-being of sex workers, and so on.

The online debates I have followed tend not to employ empirical data but are most often based on anecdotal evidence which might apply to one case but not to other cases and tell us little about the overall statistics. 

(10) This is common in the statements activists make in social media, but it also crops up in newspaper articles in the absence of any clear reference to the heavily gendered nature of the commercial sex work industry.  
One example of this is an April New York Times article discussing the impact of the coronavirus on sex workers and on those who make money out of posting erotic pictures and videos of themselves on sites such as OnlyFans.  
The blurb under the title of the article states: "More of us are making and watching sexual performances online now. Fewer of us are paying", and inside the body of the article there are multiple references to "people" doing this work and to "people" consuming it.

To be fair to the New York Times, a 2019 article on the OnlyFans site does address the gendered nature of the industry.  But it seems to be increasingly common to describe sites as that one in very gender-neutral terms.  Two recent examples are this one and this one.

If I had to speculate about the reasons for this apparent shift I would pick the general desire to remove the stigma from sex work, to treat sex workers with respect, and to focus on those aspects of the work which can be found in all types of work.  Those are laudable goals.  I just don't think they require hiding the very unequal distribution of men and women on the two sides of the commercial sex market.
As an interesting (and long!) aside, many online debates on sex work ask the question if sex work has any special characteristics which distinguish it from all sorts of other legal jobs people have and which could therefore be used to justify keeping it illegal.  
This question is usually raised in exchanges where someone first argues that it is the dangerous and unpleasant aspects of prostitution which set it apart from other jobs and someone else then argues that many other jobs are also dangerous and unpleasant but are not made illegal, so why should sex work be singled out for a different treatment?

The usual candidate for that legal-but-also-dangerous-and-unpleasant-job is coal mining.  When I saw that exchange for the first time I immediately started thinking about any possible differences between sex work and coal mining (as something to do when I couldn't fall asleep at night).  
The most obvious one, of course, is the fact that sex workers are overwhelmingly female while the consumers of commercial sex are almost all male.  Coal mining is slightly different:  While coal miners today are also overwhelmingly of one sex (male), those who consume the coal they mine are not mostly female.
Another difference in how these two jobs are viewed is pretty visible to anyone who has spent time in social media. Have you ever seen an angry comment on Twitter, say, call someone "a fucking coal miner," say?  Yet it's not at all uncommon to see angry comments, usually (but not always) by male commenters, which call someone "a fucking whore."  The target of such slurs tends to be female but not always. "Whoring," for example can be aimed at male politicians whose policies the angry person doesn't like.

So sex work is viewed differently from, say, coal mining in that those who perform it are stigmatized and the work itself is a common metaphor for deplorable forms of behavior of various types.

I believe that the above two differences start fitting into the overall puzzle about how coal mining differs from sex work, in more general terms,  when we add a third difference between the two jobs:

There are non-market alternatives for the former but not really for the latter.  What that economic jargon means is that the most common way people have sex is not by exchanging money for it,  but as non-financial exchanges of pleasure in a romantic or at least friendly relationship such as marriage.
Ideally, sex within such a relationship is based on mutual desire and results in mutual pleasure, though of course reality may not match that ideal image.  Nevertheless,  the stigmatization of sex work may have partial roots in the bitterness and hurt someone might feel for having to pay for sex rather than being sexually desired as a person without any exchange of money being necessary.  The angry use of terms denoting a sex worker may originally be born from that hurt.

More generally, I believe that markets for the access to the sexual/reproductive parts of female bodies present a special case largely because they are commercialized alternatives to what we usually view as the functions of marriage or similar non-market arrangements and because these alternatives do not benefit men and women equally.