CMDA's The Point

The Importance of Definitions

February 20, 2020

by D. Joy Riley MD, MA (Ethics)

Definitions are important for what they say—and for what they do not say. Consider the definition of human trafficking. “Trafficking in persons” (TIP) is defined by the U.S. Department of Defense as “the use of force, fraud, or coercion to compel persons to provide labor or services or commercial sex. TIP involves exploitation of all types. TIP can include elements of recruiting, harboring, transporting, providing, or obtaining a person for the purpose of exploitation.” The U.S. Department of State declares, “Human trafficking deprives millions worldwide of their dignity and freedom. It undermines national security, distorts markets, and enriches transnational criminals and terrorists, and is an affront to our universal values. At-risk populations can face deceitful recruitment practices by those bent on exploiting them for labor or commercial sex….” Interestingly, there is no mention of exchanging human beings for money as a definition of human trafficking, yet it seems that buying and selling humans would qualify as “human trafficking.”

To buy or sell human organs for transplantation is called illegal in this country. Profiting from facilitating human organ trade can land you in prison. That happened to Levy Izhak Rosenbaum, an Israeli citizen living in New York. Selling human tissue from cadavers for use in other, living bodies may not be illegal, but it can be problematic.

Selling the use of one’s body for sex (or should this be called renting out?) is usually called prostitution. New York’s human trafficking law, which took effect in 2007, “created” the crimes of sex trafficking and labor trafficking, and it eliminated the distinction between prostitution and trafficking. Penalties for related offenses are listed here:

  • Prostitution: Class B misdemeanor (up to three months in jail and/or up to a $500 fine)
  • Patronizing a Prostitute: Class A misdemeanor (up to one year in prison and/or up to a $1,000 fine); Class E felony if prostitute is less than 14 years of age (two to five years in prison)
  • Permitting Prostitution: Class B misdemeanor (up to three months in jail and/or up to a $500 fine)
  • Promoting Prostitution: Class A misdemeanor (up to one year in prison and/or up to a $1,000 fine)
  • Compelling Prostitution: Class B felony (three to 25 years in prison and/or up to a $5,000 fine)
  • Sex Trafficking: Class B felony (three to 25 years in prison and/or up to a $5,000 fine)

“Renting out” one’s womb, however, is different. If a woman “rents out” her womb, it is not prostitution. It is called surrogacy. If a woman is paid to gestate a baby she will not rear, but will relinquish to another/others, it is not called human trafficking, trafficking in persons or even baby selling; instead, it is called commercial surrogacy. In some places, it is also called illegal. After a number of high-profile disasters (reported here and here), India banned commercial surrogacy in 2018. Thailand has banned commercial surrogacy for foreigners, and Cambodia has banned surrogacy outright. These are not alone in outlawing commercial surrogacy, as reported here and here.

The United States, however, is often portrayed as a surrogacy haven, and there is little wonder. Melissa Brisman, a New Jersey reproductive lawyer who runs a gestational surrogacy agency, described commercial surrogacy in the U.S. to NBC News:

“Its eye-popping price tag explains the clientele. Brisman said the couples who do it, called the ‘intended parents,’ pay a minimum of $80,000 but can easily dole out up to $250,000. That includes agency and attorney fees, health care costs and a minimum compensation of $35,000 for the surrogate, which is usually higher in areas with higher costs of living.”

New York is expected to vote again soon on commercial surrogacy, as reported in the Christian Post:

“New York state Assembly Bill 1071 and its companion in the state Senate, Bill 2071, would lift prohibitions on surrogacy and allow for embryos created in a lab via in vitro fertilization — using sperm and eggs that might or might not be from the couple procuring surrogacy services — to be transferred to the womb of a surrogate. The surrogate mother would then, per legal contract, give up all rights to the child after it’s born.”

The Women’s Bar Association of the State of New York has weighed in, finding it acceptable if the surrogate is not the genetic mother of the child, and if the safeguards in the proposed “Child Parent Security Act” are fully observed. They cite the guidelines of the American Society for Reproductive Medicine as “designed to ensure that the best medical and ethical practices are applied to these arrangements.”

New York is not the first to use to use the term commercial surrogacy. The proposed act seems to have only the intended social parent(s)’ interests at center, as it readily and unapologetically co-modifies both women and children, exchanging either their wombs or their lives for money.

Commercial surrogacy is an inadequate term, however. It could be called baby selling. It could even be considered as human trafficking or trafficking in persons, at least in regard to the baby/babies involved, except, of course, that the definition has been so tightly drawn. What else could one call it, if the baby has no genetic connection to either social parent or to the gestator? This is the equivalent of creating an orphan for money.

The commercial surrogacy proposed in New York turns women and the made-to-order rootless children they gestate into commodities. If one looks at the figures provided by Ms. Brisman, it is not the gestating woman who benefits most monetarily from this baby selling, even though hers is a 24/7 process for months and months. The physicians who transfer the embryos and the lawyers who facilitate the process appear to be the primary recipients of the funds. And the facilitators of surrogacy (lawyers) and those who transfer embryos (physicians) to a woman’s womb for the purpose of this money-making scheme will rake in dollars upon dollars. Hopefully, the New York legislators will reconsider this benighted enterprise and make commercial surrogacy illegal, with attendant consequences and penalties for those who enable and facilitate it.


About D. Joy Riley MD, MA (Ethics)

Executive Director of the Tennessee Center for Bioethics & Culture.

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