Tom Koch opens his recent book on medical ethics with an account of a conversation that he had with one of his students. After his first lecture on applied ethics, during which he mentioned Immanuel Kant and Martin Heidegger, one of the students asked: “Will I have to read those dead Germans?” Koch replied (in jest): “Yes, but not too many and only in translation.” Footnote 1 In Thieves of Virtue: When Bioethics Stole Medicine, Koch goes on to develop an argument in support of reading the “dead Germans”; in fact, he argues for much more than that. Today, courses in bioethics frequently mention Kant’s categorical imperative, especially the second formulation that prohibits us from using persons as mere means to our ends, and they refer to Heidegger’s warnings concerning the dehumanizing effects of technology. However, no deep reading of the “dead Germans” takes place, and we often end up using some of the tenets of their philosophy as a way to booster our common sense views. In the end, as Koch points out, “the practical retreat for most bioethicists … is typically a retreat to a kind of simplistic utilitarianism.” Footnote 2 Bioethicists need to do better. Instead of adopting a “piecemeal appropriation of complex works” (such as Kant’s Groundwork for the Metaphysics of Morals) only eventually to fall back on “folk theory” or “simplistic utilitarianism,” we need to do justice to the texts in ethics’ rich tradition. Footnote 3 Although a study of works by Kant or Heidegger is not going to provide simple answers to questions that these works predated, this study will supply an “orientation,” a “map,” and a complex conceptual framework in which answers to today’s questions in medical ethics could be developed.
In the spirit of this approach, this article looks at a specific issue in assisted reproduction (paid surrogacy) through the lens of Kant’s account of what we owe to ourselves and each other. In this, I will go beyond Kant’s famous dictum: “Act in such a way that you avail yourself of humanity, in your own person as well as in the person of every other, always at the same time as an end, never merely as means.” Footnote 4 In doing this, my hope is to look beyond basic deontological concepts such as “contract,” “consent,” and “autonomy,” and to apply Kant’s analysis of embodied personhood to the practice of paid surrogacy. More specifically, my focus will be on the way that a surrogate mother uses her body in the practice of paid surrogacy. This use has been debated in the literature as being an instance of selling one’s body. As such, paid surrogacy has been initially seen as a “reproductive prostitution.” Footnote 5 Today, however, the emerging consensus is that surrogates are being paid for their services, not their bodies. Contracts that protect women’s right to offer their services for sale look less problematic. If worries about the legitimacy of these contracts persist, these worries have to do with the possible exploitative nature of these contracts (that might be materially unfair to the surrogates). The worry about exploitation is all the more pressing, now that paid surrogacy is rapidly becoming international, with contracting couples from affluent countries seeking surrogates abroad. I argue that we need to take another, closer look at the nature of the action that a surrogate undertakes with respect to her body, or—more properly—with respect to herself. If this is the case, then aside from often being exploitative, surrogacy contracts are also degrading to women.
My plan for the article is as follows. I start with a brief discussion of what today’s philosophical approach to paid surrogacy is. Here, my aim is to highlight that paid surrogacy is essentially looked at from the perspective of justice that seeks to balance the reproductive desires (if not rights) of some and the interests (if not rights) of others. I then argue that the traditional worry that paid surrogacy is a form of reproductive prostitution has been dismissed too quickly, and that it warrants another closer examination. I show that arguments against surrogacy as reproductive prostitution are not good enough, because they fail to take seriously the nature of a surrogate’s relation to her body. This failure is based on the false (in this case) distinction between selling one’s service and selling one’s body. To ground this analysis of humans as embodied persons, I will look into Kant’s late ethical theory. Kant’s ethical thought always heeds to the categorical imperative in its prohibition to treat persons as mere means. However, what this imperative commands more specifically in how we engage ourselves and others as embodied persons has not been explored in the context of the ethics of assisted reproduction. My hope is to spell out the conceptual framework in which this can be done, and in this to go beyond “appropriation” of Kant’s most intuitive formulation of the moral law. Parts of Kant’s argument will read as somewhat arcane; he is, after all, a “dead German.” But an in-depth analysis of his arguments will also prove helpful, if we as ethicists are searching for “orientation” and a “map” to the issue of paid surrogacy.
Paid Surrogacy: A Cost–Benefit Analysis
Advances in assisted reproductive technology (ART)—from as early on as the first use of in vitro fertilization (IVF) to recent discussions of human reproductive cloning, the possibility of male pregnancy, and uterine transplants—have been seen, principally, as a way to enhance our reproductive freedoms. Many arguments take this line of reasoning even further, and take these reproductive freedoms to be linked to our positive reproductive rights. If one wants to argue against a practice within ART, the burden of proof usually lies on the opponent because the advantages of assisted reproduction are taken to be so clear and manifest. Paid surrogacy is no exception. It is a practice that appears at the same time to widen the scope of our reproductive choices and to empower those women for whom pregnancy might be a preferred way of making a living. It is true that paid surrogacy has also raised some concerns, especially because it opens the door to exploitation of the economically worse off, but by and large, to most authors paid surrogacy in itself appears to be ethically defensible, provided that exploitation can be avoided.
The dominant way to approach the question of whether paid surrogacy is morally permissible is an ethical cost–benefit analysis. For example, in an early article on traditional surrogacy (in which the surrogate mother is both genetically and gestationally related to her child) John Robertson puts the matter in the following way:
The right of a couple to raise a child should not depend on their luck in the natural lottery, if they can obtain the missing factor of reproduction from others. If a married couple’s right to procreative autonomy includes the right to contract with consenting collaborators, then the state will have a heavy burden of justification for infringing that right. The risks to surrogate, couple, and child do not seem sufficiently compelling to meet this burden…nor will it suffice to point to a communal feeling that such uses of the body are…immoral. Moral distaste alone does not justify interference with a fundamental right. Footnote 6
Setting aside the nature of rights that Robertson mentions, it is clear that in his analysis, surrogacy is considered to be a situation in which some recognized goods—our reproductive freedom and our freedom to enter into mutually beneficial contracts with others—are compared with the potential harms to the parties affected by the practice of surrogacy. Because the harms of surrogacy are no different from the harms associated with other unconventional reproductive choices such as adoption or artificial insemination, and because “moral distaste” is not a good reason to undermine important freedoms of others, surrogacy appears to be ethically nonproblematic.
To call this approach to surrogacy a “cost–benefit analysis” is not to say that it is of a utilitarian nature. In other words, when the potential costs and the potential benefits of surrogacy are calculated, this calculation need not be restricted to happiness-related (and a fortiori pleasure-related) consequences of the practice. The central good that paid surrogacy would promote is reproductive freedom. Although these are not absolute rights, the rights to reproduce and to enter into contracts are seen as rather weighty. The potential harms to the parties involved in the practice (the surrogate mother, the contracting couple, and the child) and other implications of the practice (what Robertson calls “moral distaste” in general) do not seem to be capable of tipping the moral scale against surrogacy.
Using a cost–benefit analysis tends to cast surrogacy in a certain light. Front and center are concepts such as “consent,” “fairness,” “autonomy,” and “reproductive freedoms.” By contrast, the significance of surrogacy with respect to the surrogate mother’s relation to her body is seen, at best, as a secondary concern. The main issue is how the choices of some (the contracting couples) might have an effect on the ability to make choices of others (the surrogate mothers). The nature of surrogacy as a self-regarding action is not taken into consideration in an inquiry with a focus on paid surrogacies as contracts. This is because the surrogate is considered to be a locus of rights and freedoms of her own; specifically, her body is seen as essentially her property: “Women’s bodies are their property, and if surrogates are rentiers rather than workers, fine: our society allows one to execute contract to rent property.” Footnote 7 Seen from the perspective of property rights, surrogacy becomes subject to classical liberal values: “freedom, self-fulfillment, individual dignity, and the quality of opportunity to pursue one’s own interests.” Footnote 8 One notable exception to this approach is the “prostitution objection” to paid surrogacy to which I now turn.
The Prostitution Objection to Paid Surrogacy
This objection is commonly discussed, but is quickly dismissed in most philosophical treatments to surrogacy. The prostitution objection has been turned into a straw man argument; as an argument from analogy, it is usually set up only to fail. Paid surrogacy, the objection states, is analogous to prostitution, and because we find prostitution to be morally impermissible (and because it is generally not legal in the United States) we should condemn surrogacy morally and ban it legally. The philosophical discussion then revolves around the question of whether surrogacy and prostitution are analogous in relevant ways. Because there are too many aspects of paid surrogacy that seem to weaken the analogy, the objection is dismissed on the way to what appears to really matter: the issue of possible exploitation of the surrogate mothers. The prostitution analogy was introduced by Sara Ann Ketchum in “Selling Babies and Selling Bodies”; however, it was already implicit in the way that the Matter of Baby M. was treated by the New Jersey Supreme Court: according to Judge Wilentz, “payment of money to a ‘surrogate’ mother [is] illegal, perhaps criminal, and potentially degrading to women.” Footnote 9 The New Jersey Supreme Court saw the contract as degrading, not merely unjust; it was also seen as degrading to women, not merely as undermining the rights or interests of the surrogate mother. Ketchum explains that both prostitution and commercial surrogacy make women’s bodies into “consumer goods” because “sexual or reproductive prostitutes enter the market not so much as agents or subjects, but as commodities or objects.” Footnote 10 Ketchum herself sees the wrong of this practice primarily in Kantian terms. She explains that this commodification is morally impermissible because “selling people is … treating them as means rather that as ends, as objects rather than as persons.” Footnote 11 Although, if put this way, the truth of the latter statement can hardly be doubted, Ketchum did not offer a detailed explanation or justification of her claim that paid surrogacy indeed is a case of selling a person. This rendered her position vulnerable to quick responses, all of which sought to show that prostitution and surrogacy are importantly different from one another, and that the latter is not a case of selling a person or even a person’s body.
In her “Surrogate Mothering: Exploitation or Empowerment?” Laura Purdy, for example, is rather skeptical about the prostitution–surrogacy analogy. She claims that “strictly speaking, contracted pregnancy is not prostitution” and that only a “broad-based Marxist definition [of prostitution]” would be applicable to surrogacy, but then—she adds—a “broad-based Marxist definition [of prostitution] would include … traditional marriage” as well. She concludes that the “force of this accusation is primarily emotional.” Footnote 12 Of course, “strictly speaking” prostitution and surrogacy are not the same, but then “strictly speaking” only prostitution is prostitution; in other words, the fact that an analogy is not perfect does not entail that in morally significant respects prostitution and surrogacy are not akin to one another.
In their overall careful analysis of surrogacy, Jennifer Damelio and Kelly Sorensen undermine the prostitution–surrogacy analogy in two more specific ways. First, they point out, “prostitution and surrogacy have importantly different objectives. Prostitution consists in selling of women’s bodies for sexual satisfaction; but the aim of surrogacy is to bring a child into the world.” Footnote 13 I will call this the “different objectives rebuttal” (DOR). Second, borrowing from Heidi M. Malm, they explain that “there is a difference between “compensating a woman for her services, and paying a woman for the use of her body”. Footnote 14 Unlike the DOR, this argument does not rest on the claim that what makes two practices morally different is their objectives; rather, it points out that there is another dis-analogy between prostitution and surrogacy: prostitution involves selling one’s body, whereas surrogacy involves being compensated for a service. I will call this the “compensation for service rebuttal” (CSR).
Before I discuss the real issue behind the prostitute objection, it is worth noting that the abovementioned rebuttals are rather weak. DOR, for example, argues that an analogy between the moral status of φ and ψ cannot be successful insofar as φ and ψ have different objectives. This rebuttal does not address what is really at issue with both actions. A full description of an action involves understanding what is being done (the description of the action itself) and the end (or “objective”) that the action is a means to. For example, consider a set of actions that have different “objectives”:
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1) I cheat on my taxes because I believe that taxation as such is wrong
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2) I cheat on my taxes because I need resources to pay for my child’s education
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3) I cheat on my taxes because I think that everyone else is doing it
Whatever can be called the “objective” of actions 1, 2, and 3, it can be seen that that the act that I undertake in each case is the same. Therefore, even though the end that I set for myself in 2 is morally praiseworthy, whereas the ends that I set in 1 and 3 are, perhaps, less so, the moral status of the action itself does not change. One does not need to go into further complexities of what the anatomy of an action is in order to see that φ and ψ might have different ends, but might still involve actions that share a relevant description. Therefore, what would make both φ and ψ morally objectionable will be determined not by the end (that they do not share), but by the action as such (that they do share, ex hypothesi). For example, if both prostitution and surrogacy are essentially cases of paying a woman for the use of her body, although one involves doing this for sexual gratification and the other involves bringing a child into the world (as their ends), it is the paying a woman for the use of her body that would be constitutive of wrongdoing. Therefore, on the face of it, DOR does not suffice to undermine the analogy between prostitution and surrogacy.
This brings me to the question of whether both practices involve paying a woman for the use of her body. As I mentioned, Damelio and Sorensen (following Malm) see surrogacy differently. According to CSR, surrogacy it is a service, not a use of one’s body, which makes it distinct from prostitution. They explain that a woman’s uterus can be seen as a means of delivering a service, and that the surrogate’s uterus is borrowed, as it were, for the rendering of her services. The surrogate herself, however, is not being used in this; she is being compensated for the service that her body part renders. This rebuttal does not appear to be a strong one either. It can be pointed out that the distinction between “compensating for services” and “paying for the use of one’s body” can be used in defense of prostitution as well. Following the line of reasoning that Malm proposes, we might say that a prostitute uses his or her sex organs, not her body or a fortiori her person, and that he or she is compensated for a service that the use of these sex organs allows to provide. This defense would not be persuasive. Rather, in this latter version, it has an appearance of sophistry designed to help avoid an ethical problem by making up conceptual distinctions. What these distinctions would mask is the real question: Are the surrogate’s actions in violation of her relationship to herself? This is, I would assume, what we find so reprehensible about prostitution. This is also the reason why defenders of surrogacy want to insists that the surrogate (as opposed to a prostitute) is not selling her body, which is what we find to be objectionable. I am setting aside for now the question whether our relationship with our bodies in other occupations and practices are morally problematic. It might be that, after a careful analysis of our duties to ourselves as embodied beings, we will come to see the flaws of engaging in occupations and practices (such as gamete donation) that have appeared to be benign.
It has already been mentioned that the force of the analogy between prostitution and surrogacy does not rest on the ends or “objectives” that agents have. Rather, it is the description of the action itself that needs to be looked at. Both practices, although one has to do with sexual gratification and the other has to do with reproduction, involve disposing of one’s body and accepting payment for it. To see whether this is a morally problematic relationship to enter into to one’s body requires a fuller understanding of the relationhip that we have to ourselves as embodied beings. Thus, the force of the analogy can be revealed by looking into the moral status of the human body, and, specifically, by looking into some of the philosophical traditions that take seriously our duties to ourselves as embodied beings. There are at least two prominent traditions that develop this kind of arguments: Kant’s (and later Kantian) deontology and Christian bioethics, and for now my focus will be on Kant, because discussing Christian bioethics is simply impossible within the scope of this article. Briefly, in his ethical theory, Kant argues for a certain understanding of personhood as it is related to embodiment: the “absolute unity of human person.” According to this view, it is morally impermissible to make use of one’s body (as a whole or of its part) in a way that degrades a person morally. For Kant, persons are essentially embodied, and our interactions with ourselves and with others ought to reflect the fact that the effects our actions have on one’s body are effects on one’s person as a whole.
Kant on the “Absolute Unity of the Human Person”
In Kant’s many writings on ethical theory and applied ethics, the concepts used most often to refer to moral agents are “person,” “human” (and “humanity”), and “rational being.” “Person” is the technical term that is famously defined in the Groundwork for the Metaphysics of Morals in the following way: “Rational beings are called persons, because their nature already distinguishes them as ends in themselves, i.e., as something that may not be used merely as a means.” Footnote 15 The concept of a person is closely connected with the concept of a human being (der Mensch) and of humanity (die Menschheit). In many of today’s discussions in bioethics, the terms “human” and “person” are strictly distinct from one another. “Human” is a term that applies to us in virtue of our genetic makeup, and, as such, it is a merely descriptive term. On the other hand, “person” is a term that applies to us in virtue of our moral capacities, and, as such, it is a normative term. (Therefore, in discussions of the moral permissibility of abortions, one of the questions that philosophers seek to answer is whether embryos and fetuses are persons, not whether they are human.) For Kant, “human” and “person” boil down to the same thing, and this is not because he failed to make the distinction that we commonly make today. Rather, “human” and “person” are conceptually connected through a third term: “rational being” (das vernünftige Wesen). For Kant, human beings are rational beings, and as such they are persons. By “rational being,” Kant means a being who is capable of deliberate action; that is, a being who sets ends for him- or herself and strives to bring these ends about. Kant says that this capacity (or “faculty”) “can only be found in rational beings.” Footnote 16 Thus, by “rational being,” Kant means the “subject of a morally practical reason” (Subject einer moralisch-praktischen Vernunft). This, he says, is what it means to be a human being as a person. In this judgment, we would set aside the question (raised in today’s discussions in medical ethics) about human beings who lack the capacity for setting ends and striving to bring them about, or whose capacity is severely diminished. The fact remains, however, that for Kant “human” and “person” simply mean the same thing. In one of his latest works (The Metaphysics of Morals) he goes as far as to state one of the main tenets of his ethical theory in the following way: “Every human being [Mensch] has a rightful claim to the respect from his fellow human beings [Nebenmenschen], and also is mutually bound to respect every other. Humanity [Menschheit] itself is a dignity; for a human being [Mensch] cannot be availed of merely as a means by any human being (whether by others or even by himself) but must always be used at the same time as an end, and in this consists his very dignity (his personhood [Persönlichkeit])”. Footnote 17
Kant’s emphasis on humans’ rational nature is so pronounced and so unwavering that his canon appears to invite a reading that downplays many other important aspects of what it means to be human. Kant’s writings have been subject to numerous criticisms that argue that his ethical theory is too cerebral in its neglect of the significance of human emotions, psychological complexities, nonrational (or pre-rational) commitments, and our very embodiment. Although Kant’s writings on theoretical ethics (such as the Groundwork for the Metaphysics of Morals and the Critique of Practical Reason) do focus on morality as it is grounded in our rational nature, his works on applied ethics help us bridge our rational nature and our human (in its fullest sense of the word) situation. If, therefore, we are interested in the question of what the concepts of a “rational being” or “person” refer to, we need to look at Kant’s writings on applied ethics in which he develops an account of embodied personhood. Whether all persons have to be embodied (and there is a line of reasoning in Kant that suggests that they do), humans—as we have been understanding ourselves—are necessarily embodied, and no complete account of ethics that is to apply to human beings could bracket this fact.
Kant’s notion of “absolute unity of the human person” plays an important role in his arguments concerning contacts that involve “making use of one’s sexual organs.” The general boundaries of the morally permissible way to use one’s sexual organs are discussed by Kant in two different contexts. On the one hand, we can act in a way that falls short of virtue, and on the other hand, we can act in way that fails to respect juridical norms. As far as virtue is concerned, we can act contrary to the moral law if we fail to use sexual organs appropriately and if we fall prey to the vice of “lewdness” or “carnal lust.” Footnote 18 Kant sees this failure as a moral vice, and in it we are in violation on our duty to ourselves. As Kant puts it, carnal lust not merely “debases” us, it “defiles” us. His general argument to this conclusion is that in carnal lust one is “making a feeble surrender to animal impulse in throwing oneself away” and in it, one fails to “respect humanity in one’s own person.” Footnote 19 Defiling cannot be subject to juridical right; duties of virtue are those that have to do with one’s moral character, and as such they cannot be enforced, only prescribed by our rational nature. Kant explains that, as a figure of speech, we can say that our “phenomenal self” (homo phaenomenon; i.e., the self that exists in space and in time, and is subject to causal laws) is “entrusted for safeguarding” to our “noumenal self” (homo noumenon; i.e., the self that is the “subject to moral-practical reason”). Defiling oneself is a failure to safeguard one’s phenomenal self by one’s noumenal self, but although Kant discusses duties that persons have to themselves as embodied, phenomenal, beings, these discussion do not explicitly rest on the concept of “absolute unity of the human person.” For this, one needs to turn to the texts that discuss the juridical side of this issue.
In Kant’s “Doctrine of Right” there is the concept of “absolute unity of the human person” grounding what he says about contracts related to the use of one’s sexual organs. Because the “Doctrine of Right” is an inquiry into contracts, this is precisely how Kant chooses to discuss the juridical relationship that persons can have with one another, including how they can treat themselves when entering into such contracts. Kant follows the early modern contractarian tradition, according to which some contracts are illegitimate; to use the early modern jargon, some contracts are “invalid” or “void.” A contract can be “void” on the grounds that at least one party offers that which is not to be bargained for, for example, one’s natural freedom or one’s physical body. Thus, from very early on in modern political philosophy, it was argued that one cannot legitimately sell oneself into slavery. Although the parties might go through the motions of making a contract such as this, the contract is illegitimate (because a person is not something that can be bought or sold) and therefore “invalid.”
Kant argues that although people enter into contracts having to do with sexuality quite frequently, only one kind of contract regarding the use of one’s sex organs is legitimate; namely, marriage (matrimonium). He recognizes that, conceptually, marriage is one of three possible kinds of contracts that we can enter with the end of using one another sexually. The other two kinds are scortatio (prostitution) or selling one’s sex organs for the use of another, and concubinatus (concubinage) or the “mutual satisfaction of the sexual desire” without forming a family. Footnote 20 Kant rejects both prostitution and concubinage as acts that are “contrary to morality” and “contrary to sound reason.” He says that these types of contracts are void, and both in the argument against prostitution and in the argument against concubinage, he relies on the concept of the “absolute unity of the human person.” In prostitution and in concubinage, one party “makes use of the other’s sexual organs” for the purpose of enjoyment only. But, Kant adds, “acquiring a member of a human being [in his or her sexual organs] is at the same time acquiring the whole person, since a person is an absolute unity.” Footnote 21 Therefore, we cannot conceptually divorce the use of an organ from the use of a person, because the person is to be considered always as one whole being, not a collection of functionally understood body parts navigated by a homo noumenon.
Although it is this latter inference that is important for the purposes of my argument, it is also worth looking into Kant’s main argument to the conclusion that this acquisition is illegitimate in certain kinds of sexual acts. Kant’s understanding of contracts related to “using each other’s sexual attributes” is somewhat dated. I think that this is especially the case with respect to what he calls “concubinage,” because this relationship, which extends beyond casual encounters of soliciting a prostitute, is still for Kant a “wrongful pact” that exists between two unequal parties. In concubinage, one person “hires” another, and the latter is “surrendering herself as a thing to the other’s choice.” Footnote 22 Therefore, both prostitution and concubinage constitute contracts that are similar in that one party simply uses another. Both a prostitute and a mistress (which is what Kant has in mind when he talks about “concubinage”) are the worse off in the contracts that they enter. A prostitute is degrading herself because she is being “acquired by the other as if she were a thing” Footnote 23 ; the compensation that she receives does not restore her personhood or her dignity. Although a mistress has a longer-lasting status, she too is essentially “acquired by the other as if she were a thing.” If one acts toward another in such a way as to treat her “as if she were a thing,” then one violates the categorical imperative that commands us always to treat another as an end in itself. Marriage, for Kant, is a necessary condition for being able to treat another with respect; unless a legal pact of marriage is entered, hiring another for the use of her sexual organs constitutes a violation of duty.
Kant offers a similar objection to prostitution in his lectures on moral philosophy. These lectures often show the nuances of Kant’s arguments, and what he says about prostitution, according to the lecture notes taken by Collins follows the same line of reasoning as he outlines later in his “Doctrine of Right.” He writes: “[A] man cannot dispose over himself; he is not entitled to sell a tooth, or any of his members. But now if a person allows himself to be used, for profit, as an object to satisfy the sexual impulse of another, if he makes himself the object of another’s desire, then he is disposing over himself, as if over a thing, and thereby makes himself into a thing by which the other satisfies his appetite, just as his hunger is satisfied on a roast of pork.” Footnote 24
Here can be seen Kant’s well-known argument against treating humanity as a mere means in general: some actions are contrary to the moral law because they “debase man” or “degrade him” and turn a person into a mere thing, in this case a mere object of the satisfaction of another’s sexual impulse. To say that a person is “made into an object” or a “thing” is to say that the person is treated as though she possesses only “relative” or “conditional worth,” worth that is contingent on the will of another person. Footnote 25 Things, according to Kant, have worth merely “for us,” not “absolute worth,” and this is precisely the way that a prostitute’s body is treated.
Two things are worth noting about Collins (see volume 27 at 386). First, although the crux of the argument has to do with the wrong of prostitution, Kant mentions that other uses of one’s body are also contrary to the moral law. For example, selling one’s teeth, which was not an uncommon practice during Kant’s time, also debases the person in that his or her body is treated as a thing, or as mere means to another’s ends, and as one whose worth is contingent on the end-setting of another person. Second, although not explicitly stated, the assumption that the use of one’s sexual organs and selling of one’s body parts are effectively the use of one’s whole person clearly underlies this argument. Kant claims that the person who is the object of another’s desire has therefore “made himself into a thing.” Therefore, according to Kant, it would be incorrect to say that persons who sell their teeth, for example, are using their teeth as objects for sale, but leaving the worth of their persons intact. Similarly, it would be incorrect to say that a prostitute sells her sex organs, not herself. Because Kant sees human persons as embodied, treating one’s body (or one’s body parts) in a certain way entails that the person herself is being treated in this way.
In Kant’s argument against concubinage, this assumption is spelled out even more explicitly. Concubinage is in some respects different from prostitution, because in prostitution, the contract involves payment for the use of one’s sexual organs (and one’s person) by another, whereas in concubinage “persons mutually satisfy their desires, and have no thought of monetary gain.” Footnote 26 Therefore, in concubinage, both parties intend to use one another as mere “objects of enjoyment.” Footnote 27 What makes it contrary to morality to use another person as a mere object of enjoyment? Kant’s answer depends on the following argument. First, in concubinage, the purpose of the union is the pleasure resulting from making use of another’s sexual organs. This assumption rests merely on the meaning of “concubinage”; this is its understood purpose. Second, in concubinage, this is the sole purpose of the union. The parties enter into the “pact” with no other purpose than to satisfy their sexual desires, because if they had a purpose that went beyond this satisfaction, then they would enter into matrimonuim (marriage), in which case they would be committed to one another’s “happiness and future well-being” and to “possession of material goods in common.” Third, if a pact essentially involves treating one another as mere things, then the pact degrades each party individually, and constitutes a moral wrong with respect to one another as well. In this latter sense, each party is treating the other as mere means to its ends.
For Kant, contracts such as this (both in prostitution and in concubinage) are void, and contrary to morality for the same reason: when persons “give themselves” to one another they “let their person be used as a thing” (emphasis added). In his Lectures on Ethics, Kant explains further that “it is evident that if someone concedes a part of himself to the other, he concedes himself entirely. It is not possible to dispose over a part of oneself, for such a part belongs to the whole.” Footnote 28 Similarly, in the “Doctrine of Right,” he says that “acquiring a member of a human being is at the same time acquiring the whole person, since a person is an absolute unity.” Footnote 29
In his “Doctrine of Virtue,” Kant discusses the temptation we might have to treat the human person as consisting of two elements: the body and the soul. But, being consistent with his metaphysical enterprise, Kant explains that this division is unsound: “The subject [of ethical obligation] is always only the human being. Although in theoretical respect we may distinguish in a human being between soul and body as one’s natural characteristics, we nonetheless may not think of them as different substances, giving rise to obligations, so as to justify a division between one’s duties to one’s body and one’s duties to one’s soul.” Footnote 30
Both lines of reasoning in this passage are significant. First, in theoretical respect, we can make the distinction. For Kant, this theoretical respect would allow us to make finer distinctions between our various duties and to appreciate the differences between them. Although he does not think that the division into the “duties to the body” and “duties to the soul” is warranted, he goes on to make the distinction between duties that apply to us as “embodied beings” (such as the duties just discussed) and duties that apply to us as “rational beings.” The latter have little to do with the fact that we are embodied, because they would apply to us no matter what our embodiment would be like. For example, our duty not to commit fraud is not as such related to our embodiment. However, his division between our duties to ourselves as “animal beings” and our duties to ourselves as “moral beings” does not undermine the general perspective that Kant defends and that underlies his system of duties; namely, the view that the human being is always a unity, a person who is his or her body rather than who, as it were, dwells in his or her body. Footnote 31
Second, we are not justified in making the soul–body distinction beyond “theoretical respect.” As Kant puts it, “neither experience nor inferences of reason” allow us to do this. Footnote 32 Kant’s theoretical corpus (especially his Critique of Pure Reason) shows that concepts such as “soul” cannot be objects of experience, and as such, they cannot be objects of knowledge either. Although colloquially we might be tempted to appeal to the soul–body distinction, metaphysically there is no inference that would show either the existence or any of the characteristics of the human soul. Therefore, no matter how appealing it might be for us to postulate a soul–body duality, strictly speaking, this is not a distinction that can be used in the course of scholarly inquiry.
Conclusions
This understanding of the person as an “absolute unity” can now clarify the moral status of reproductive methods such as surrogacy. I think that a Kantian approach to paid surrogacy would be akin to his approach to other uses of our bodies that are essentially objectifying. Regardless of one’s motives, the practice that requires one to treat her body in a way that provides a service cannot be morally acceptable. A more appropriate way to refer to surrogacy contracts would be in terms of using one’s self (rather than one’s body) for a paid service. This constitutes what Kant calls “disposing over oneself,” and as such it violates the duty that we have to ourselves as embodied persons. Although Kant’s ethical theory famously focuses on the full description of an action that makes sure to include actions’ “objectives” (as Damelio and Sorensen put it) or “ends” (as Kant himself would say), setting morally praiseworthy ends (such as “bring a child into this world”) is a necessary but not sufficient condition for acting in accordance with the moral law. Another condition that needs to be met is choosing morally permissible means for bringing one’s end about. Therefore, if a morally permissible end is brought about by impermissible means (such as “disposing over oneself”) it renders the action as a whole contrary to moral law.
Going beyond this immediate conclusion, we can add that a Kantian account of “absolute unity of the self” would support the conceptual paradigm that takes gestation to be especially important for motherhood. Although today’s legal literature on surrogacy is genuinely at a crossroads between genetic and gestational conceptions of motherhood, more and more weight is given to the genetic relationship between the woman and the child. When the surrogate does not bear this relationship to the child; that is, when the child is genetically related to the contracting couple but not to the surrogate, the claim that the surrogate mother has to the child appears to be all that much weaker. The surrogate who is not related to the child genetically seems to be a mere vessel that aids the contracting couple in reproduction. If Kant’s paradigm is correct, the role of the surrogate mother is more significant than that. This is because the surrogate’s role ought not to be understood merely functionally in terms of the service that her reproductive organs are providing. Taking a Kantian approach, the surrogate—the whole embodied self and not merely her reproductive organs—is involved in the practice of surrogacy. “Motherhood,” therefore, cannot be divorced from gestation, because reproduction has to do with the use not merely of one’s sexual organs, but of one’s embodied self as a whole.
My analysis suggests that according to a Kantian account of the wrong of paid surrogacy, the moral law is being violated by the surrogate mother. This is because I cast the analysis in terms of our duties to ourselves as embodied beings. Kant’s ethics, however, also recognizes duties to others; it is duties to others that are the primary focus of interest in Kant’s deontology today, and especially reliance on his doctrine of juridical relations into which we enter with one another. If one looks at paid surrogacy through the latter lens, attention naturally shifts to the contracting couple and its treatment of the surrogate mother. Today surrogate mothers are often treated appallingly, because the contracts that they enter into are exploitative and unfair. This is especially true of the international cases, in which the gap between the socioeconomic statuses of the contracting couples and the surrogates is very wide. Therefore, if a contracting couple takes advantage of the fact that the surrogate mother is in no position to refuse to enter into a degrading contract, it is in violation of the moral law as well. The duty that the couple fails to live up to is the duty to treat others as ends in themselves, and not merely as means to their reproductive end (no matter how laudable that end might be). Furthermore, the institutions that allow for unfair contracts are essentially unfair, and Kant’s “Doctrines of Right” would certainly condemn them as such.
My aim, however, was to highlight the fact that violations of duties to others are not the only aspect of paid surrogacy worth considering. Authors who argue against paid surrogacy as it exists today go on to make suggestions about improving the conditions in which surrogates enter into contracts with contracting couples. This is supposed to ensure that surrogates are not being exploited, which, in turn, is meant to make surrogacy morally permissible. Suggestions for mending the system oftentimes include, at the very minimum, making contracts fair by providing sufficient compensation to the surrogate mothers. Footnote 33 They also include suggestions on how to ensure that the surrogate mothers are in the position to give truly informed consent. For example, it is suggested that it be required that a surrogate mother has had at least one child of her own, so that she knows firsthand about the nature of pregnancy, childbirth, and child-rearing, and thus enters into the surrogate contract with sufficient knowledge of what it entails. Footnote 34 The underlying assumption in both proposed solutions is that paid surrogacy is ultimately conducive to important goods: it can enhance the sphere of our reproductive choices (as far as the contracting couples are concerned), and it can also allow for more employment opportunities for women (as far as the surrogates are concerned). This, in turn, suggests that the duty to others is the only duty that is in danger of being violated, or—in other words—that the moral status of surrogacy depends only on the nature of the contracts into which the surrogates enter. Footnote 35 If my analysis is correct, then the fairness of these contracts is not a sufficient condition for the moral permissibility of the practice, because there is another important duty to consider: the duty that the surrogate has to her own self as an embodied being. This, however, does not exculpate the legal system and the agents who right now make matters even worse by preying on women of lower socioeconomic status.
