Positioning uterus transplantation as a ‘more ethical’ alternative to surrogacy: Exploring symmetries between uterus transplantation and surrogacy through analysis of a Swedish government white paper

Abstract Within the ethics and science literature surrounding uterus transplantation (UTx), emphasis is often placed on the extent to which UTx might improve upon, or offer additional benefits when compared to, existing ‘treatment options’ for women with absolute uterine factor infertility, such as adoption and gestational surrogacy. Within this literature UTx is often positioned as superior to surrogacy because it can deliver things that surrogacy cannot (such as the experience of gestation). Yet, in addition to claims that UTx is superior in the aforementioned sense it is also often assumed (either implicitly or explicitly) that UTx is less fraught with ethical difficulties and thus should be considered a less morally problematic option. This article seeks to examine this assumption. Given that much UTx research has been performed in Sweden, a country where surrogacy is effectively although not currently explicitly forbidden, we do this through an analysis of the arguments underpinning a 2016 Swedish white paper which considered amending existing policy such that altruistic surrogacy arrangements would be permitted. By applying the white paper’s arguments for a restrictive position on altruistic surrogacy to the case of UTx using living altruistic donors we find that such arguments, if they hold in the case of surrogacy, apply similarly to UTx. We thus suggest that, for reasons of consistency, a similar stance should be taken towards the moral and legal permissibility of these two practices.

netic, and gestational sense. 3 Although still experimental, recent trials of the procedure using living donors in Sweden 4 and the USA 5 have resulted in 10 live births. Numerous other small-scale trials using living and deceased donors are also being performed and planned worldwide 6 including, notably, a second 10-case trial in Sweden. 7 As with all novel surgical procedures, discussions have emerged within both the ethics and science literature regarding the extent to which UTx improves upon or offers additional benefits when compared to existing 'treatment' options for women with AUFI such as adoption and surrogacy. In this paper, we focus on one specific aspect of such discussions. This concerns the way in which a number of authors-primarily associated with teams conducting scientific research into UTx-have positioned UTx as superior to surrogacy, not only because it can deliver what surrogacy cannot (such as the experience of gestation), but also because it is supposedly a less morally problematic alternative. 8 Although such authors rarely explicitly state that UTx is less fraught with ethical difficulties than surrogacy, this assumption seems implicit in their work. It is, for example, often claimed that UTx may prove a valuable treatment option for women who live in countries where surrogacy is forbidden by laws or effectively prohibited by restrictive regulations or who, as a result of their personal ethical or religious views, find themselves unable or unwilling to engage in surrogacy arrangements. Underpinning these claims seems to lie the assumption that the thorny ethical and complex regulatory issues raised by surrogacy which have been used, at least in part, to justify restrictive legislation in countries such as Sweden will not engage in the case of UTx or will engage only to a lesser degree. That is, women should be legally permitted to pursue, and are morally justified in pursuing, UTx in cases and contexts where surrogacy is unavailable to them.
This assumption however warrants closer examination. For, it is not clear that the majority of the ethical arguments against surrogacy fail to engage in the case of UTx, especially where living donors are used. Although we do not aim to make a judgement here on the relative strengths of the ethical arguments against surrogacy-or, indeed, the larger question of whether surrogacy and/or UTx are so problematic that they should be legally prohibited or morally condemned-we do wish to critically assess the view that UTx should be considered less morally fraught than surrogacy. 9 Given that much UTx research has been performed in Sweden-a country in which surrogacy is effectively although not currently explicitly forbidden through regulations which make both brokering and engaging in surrogacy arrangements impossible-we have chosen to do this through examination of the arguments underpinning a 2016 Swedish white paper. 10 The white paper considers, among other things, whether current legislation and policy should be amended such that altruistic surrogacy arrangements would be permitted in Sweden. 11 In what follows we examine in turn the major arguments provided in the white paper held to justify this restrictive stance, asking whether, and if so, when and how these might engage in the case of UTx. Such arguments include, but are not limited to, claims that surrogacy may: threaten the autonomy of women; strengthen traditional and problematic views regarding gender roles; exploit women; risk serious harms to children; constitute an unacceptable form of burden-shifting; and be prohibitively difficult to regulate properly.
We suggest, however, that in the vast majority of cases these arguments will, if they hold in the case of surrogacy, similarly apply to Utx, especially in cases where living donors are used. As such, for reasons of consistency, we submit that legislators, policy makers and individuals ought to consider taking a similar stance in relation to the moral and legal permissibility of 'altruistic' forms of both surrogacy and UTx using living donors. prohibiting surrogacy arrangements, certain requirements in the regulation of assisted reproduction more generally make surrogacy impossible to access within the Swedish healthcare system. Specifically, legislation and policy require that persons undergoing fertility treatment are married, cohabitating, or in a registered partnership, and that the couple includes a woman who can carry and give birth to the intended child. 12 Since 2016, single women have also been permitted to access IVF and donor insemination treatment provided that the egg is her own and she is able to gestate and give birth to the child. 13 As a result of this regulation, same-sex male couples, lesbian couples in which neither can carry a child, and opposite-sex couples in which the woman cannot carry a child are unable to access treatment.

| BACKG ROUND: SURROG AC Y IN SWEDEN AND THE 016 WHITE PAPER
Sweden, like many other EU countries such as the U.K. and Germany, has enshrined into legislation the Roman legal principle Mater semper certa est. This states that, irrespective of whether or not she has a genetic link to the child, the woman who gives birth to a child is that child's legal mother. 14 If the mother of the child is, at the time of delivery, legally married or recently widowed her spouse is presumed by law to be the father of the child. 15 Thus, the process of attaining legal parenthood for intended parents in cases of gestational surrogacy arrangements using both of the intended parents own gametes would, were it permitted, be identical to that of 'närstående (related) adoption' in Sweden. After the birth, a surrogate and her partner are considered the legal parents of the child. Therefore, in order for both intended parents to attain legal parenthood the intended father's genetic parenthood must be confirmed, and the surrogate must relinquish her parental rights and responsibilities before the intended mother is permitted to adopt the child. 16 As a result of this restrictive legislative stance, there has been much discussion in Sweden in recent years regarding whether or not it would be desirable (and possible) to amend existing legislation and policy surrounding reproduction in order to permit altruistic surrogacy arrangements between those with close emotional ties (such as friends and family members • Would be prohibitively difficult to regulate appropriately and determine responsibility for costs. 24 The sections that follow critically examine this white paper with the aim of demonstrating that many of the arguments against the introduction of surrogacy in Sweden should also, if accepted, challenge the appropriateness of UTx. By highlighting the similarities between these two practices we cast doubt upon the assumption that UTx should be considered a 'more ethical' alternative to surrogacy arrangements.

| AUTONOMY, INFORMED CONS ENT AND UNDUE PRE SSURE
The principle of respect for autonomy arises at several points in the white paper. In discussions of informed consent and risks of pressure it underscores the importance, in liberal societies such as Sweden, of a woman's right to control her own body and reproductive capacities.
Thus, it is noted that women and men should be free 'to engage in altruistic actions involving the body and its functions, such as donating or- However, despite these assertions, the white paper asks two questions. The first concerns whether it is, in fact, possible for a surrogate to understand the implications of and thus validly consent to 'giving away a child that one has carried and given birth to, and if so when and how such a consent can be given.' 27 The second regards when and how to assess whether 'consent really is voluntary and not, for example, the result of pressure, coercion, or financial incentives.' 28 Putting questions of the possibility of consent aside, the white paper asserts that, despite existing research providing only a few instances of women having encountered implicit or explicit external pressures to take part in surrogacy arrangements, 'the risk that a woman may encounter such pressures or experience emotional coercion to act as a surrogate mother cannot be ignored.' 29 It notes that the risks of external pressures undercutting consent are most likely in cases of altruistic surrogacy where the 'woman is close to the involuntarily childless individual [or couple]' 30 as the surrogate will have wit-nessed the strength of the individual(s) desire to become (a) parent/s and family and friends often 'have a strong emotional influence over each other.' 31 It also claims, however, that where surrogacy arrangements occur between those without a close emotional relationship there is a greater risk of hidden financial motives. Few specific explanations as to why this would be the case, or how such pressure would be enacted, are provided, as this claim primarily draws on a brief overview of an increase in purportedly altruistic surrogacy arrangements, but which are suspected to be commercial in nature, in Greece. 32 This is also one of the few instances where parallels are made to Swedish regulations surrounding live organ donation. Here it notes that the risk of commercialization in live organ donation between individuals without a close relationship 'has been one of the reasons for the requirement that there should be a close relation between the donor and recipient in live organ donation' 33 and recognizes the parallel risks in surrogacy arrangements between those without a close emotional relationship. 34 Given the risks of both external and internal pressures, the white paper concludes that it would not be possible, in Sweden (or indeed, perhaps anywhere), to create a system which both allows women the freedom to act as surrogates in cases where they can provide consent and protects those whose capacity to consent to entering into surrogacy arrangements has been compromised either internally (by, for example, the prospect of monetary reward) or externally (through coercion or manipulation by friends and family members). The white paper therefore recommends a precautionary approach to risk man-

| THE E XPLOITATI ON AND COMMODIFIC ATION OF WOMEN
Another key set of concerns running through the white paper regard whether, even where a woman consents to acting as a surrogate, the practice should nevertheless be forbidden in order to avoid both the wrongful exploitation of women and the perpetuation of problemati- Similarly, outside Sweden the white paper expresses the concern that permitting altruistic surrogacy within Sweden has the potential to 'normalize' surrogacy and lead to a situation in which: In terms of discrimination the white paper suggests that, even in the absence of concerns regarding the exploitation of surrogates, there may still be good reasons to refrain from permitting surrogacy as part of the wider project of securing equality for women by rejecting traditionalist, essentialist and patriarchal views regarding gender and the role of women as 'givers/providers' 50 who are essentially or, most importantly, gestators and mothers. That permitting surrogacy risks perpetuating such views, however, is not held to constitute sufficient reason to forbid surrogacy in Sweden as it is noted that just as some authors view surrogacy to be necessarily damaging to women, others suggest it has the potential to prove emancipatory, strengthening the woman's autonomy to control her own body and its processes. 51 A linked concern, raised in the white paper with respect to the Swedish context, regards the moral acceptability of 'burden-shifting' in reproduction and whether surrogacy is appropriate as the risks and costs associated with reproduction are shifted from the intended parents on to a third party. When read at face value this is an odd argument, given that the majority of paid labour constitutes burden-shifting. However, while shifting the burdens of reproduction on to third parties is not necessarily morally problematic for those who lack the ability to gestate and birth their future children, permitting surrogacy in such cases could lead to an increased acceptance of 'convenience' surrogacy in Sweden which, although posing few problems for the wealthy, could lead to the further marginalization of less advantaged women. 52 As in the previous section of this article, however, it seems that very similar concerns regarding exploitation and the perpetuation of discriminatory and problematic views regarding women and their bodies can be, and indeed, have been, raised in the context of UTx.
Just as concerns are expressed that permitting 'altruistic' surrogacy in Sweden may encourage women unable to find a surrogate in Sweden to go abroad and engage in paid surrogacy, so too have concerns been raised regarding the potential for the creation of a 'black market' in uteri similar to that seen in kidneys. 53 For, it is possible that women who fail to meet the selection criteria for UTx in their 'home' countries, lack the necessary financial resources to pay for their own and their donor's medical expenses in their home country, and/or are unable to find friends and family members willing to donate may look further afield, seeking to purchase uteri from women who find themselves in such precarious economic positions that they are willing to sell their uteri. In a paper regarding UTx in the Middle East, Altawil and Arawi express this concern, noting that just as some Syrian refugee families have: resorted to selling organs to make ends meet … it is very conceivable that impoverished families, especially refugees that have found themselves in a dire financial situation, may resort to selling their or their daughters' uteri in order to be able to survive. 54

| THE WELFARE OF THE CHILD
In Sweden 62 it is held that in matters affecting the interests of children, both future and existing, their welfare must be taken into account, and thus in the context of assisted reproduction, practices and policies which benefit prospective parents but pose significant risks of physical and/or psychological harm to children are prohibited. Thus, it is perhaps unsurprising that another concern discussed at length in the white paper is whether surrogacy is compatible with the welfare of both children born through surrogacy arrangements and surrogates' existing children.
The white paper suggests that although permitting surrogacy in Sweden has the potential to reduce some of the harms to children cre- is suggested that such children may, depending on their ages, experience fears that they too will be 'given away' or feel jealousy and anger towards the prospective child during pregnancy, or worry for the child after his/her birth. 67 The white paper does acknowledge however that, just as in the case of discussions of informed consent and risks of pressure and coercion, there is little evidence available regarding the outcomes of children born through surrogacy or the children of surrogates. It recognizes that the few studies undertaken regarding these outcomes suggest there is little reason to assume they will fare any worse in terms of familial relationships and psychological welfare than other children. 68 However, despite this, the white paper notes a number of problems regarding the data available-such as that the majority of the available studies on

| GUNTRAM ANd WILLIAMS
focusing on the outcomes for children in cases of conflict between the surrogate and intended parents. 69 As such, the white paper again suggests a 'precautionary approach'-placing the burden of proof on those who would claim that surrogacy is not harmful-and that uncertainties regarding the effects of surrogacy on child welfare, 'strongly speak against permitting surrogacy' 70 in Sweden.
Were such an approach translated into the context of UTx, a similar conclusion would almost certainly be reached. This is so for two reasons.
First, whilst surrogacy is an established practice, UTx is not and thus there is even less evidence available to deny or support the claim that it is compatible with the best interests of children. Thus, given the precautionary approach advocated by the authors in the case of surrogacy, a lack of evidence supporting the claim that UTx is not likely to cause significant harm to children should, for reasons of consistency, be held to 'strongly speak against permitting' UTx in Sweden too. Second, is that although there is little empirical evidence at this time, it does not seem unreasonable to suggest that being gestated in a donated uterus is likely to prove more risky than (or, at the very least, as risky as) being born through Given this, if a concern to act in the best interests of children is sufficient to justify prohibiting surrogacy in Sweden, the same would seem to go for UTx: i.e., it too should be prohibited. 73

| REG UL ATORY D IFFI CULTIE S
Another concern identified in the white paper regards the possibility of designing an appropriate regulatory framework for surrogacy in Sweden given tensions between the rights and interests of surrogates, intended parents and the children created through surrogacy; and difficulties in determining and enforcing responsibility for the costs surrogacy arrangements could impose on the Swedish health system, employers and social services.
Regarding the former, two possible tensions between the interests of such parties are discussed: 1. The surrogate's interest in controlling her own body and the interests of the intended parents and the potential child in ensuring a healthy birth.

2.
The right of the surrogate to choose to take care of the child she has gestated and given birth to and the right of the intended parents to take care of the child who is genetically related to them and who exists only because of their actions.
It is noted, for example-through reference to one case in which a surrogate mother, and the intended father, opposed the intended mother's application to adopt the child 74 -that although ensuring that surrogacy arrangements are not enforceable either during pregnancy or for a number of weeks post-birth protects the interests and rights of the surrogate, this results in uncertainty for intended parents and may cause them significant stress and worry. Similarly, and more dramatically, it is suggested that in rare circumstances some surrogates would abuse a right to withdraw their consent by demanding compensation or favours from the intended parents, and thus taking advantage of their precarious situation in order to follow through with the arrangement. 75 Duplicitous surrogates however, are not the only concern, as the white paper notes that intended parents may also, in rare circumstances, change their minds partway through the arrangement, and refuse to take the child once born, such as where it is discovered that the fetus has a congenital abnormality liable to result in disability. 76  In light of the above, we find that in comparison to surrogacy it seems reasonable to position UTx as likely to pose fewer, and less complicated, regulatory questions than surrogacy. However, while it might be a less complicated alternative this does not necessarily make UTx a more ethical alternative. Furthermore, in teasing out the regulatory similarities and differences between surrogacy and UTx it is also possible to raise the more general question as to whether, and if so to what extent, anticipated regulatory difficulties should function as arguments against the introduction of novel healthcare practices. As it would have been impossible within this article to examine all possible arguments against surrogacy, and in order to situate our discussions and conclusions in a real-life policy context, we chose to do this through examination of the key arguments forwarded in a recent Swedish white paper which considered whether existing legislation and policy should be amended in order to permit altruistic surrogacy.

| CONCLUSION
However, as has been shown above, the assumption that UTx is morally superior to surrogacy does not survive close scrutiny (at least in cases where the arguments considered in the white paper are forwarded against surrogacy). For, where such arguments hold, they also seem to hold straightforwardly in the context of UTx using living donors. 82 That these two practices raise similar issues is important for reasons of both fairness and coherence. When it comes to questions of the laws and principles that govern our behaviours, consisistency is a virtue and like cases should be treated alike. Thus, given that arguments often forwarded against surrogacy seem, for the most part, to apply similarly to Utx, our prescriptions regarding UTx ought to be informed by the position taken regarding surrogacy. They should differ in content only in so far as relevant differences-in, for example, the kinds of ethical problems they raise, their gravity when considered individually or taken together, and the likelihood of their occurrencecan be identified.
No two practices (or indeed, instances of the same practice) are ever identical but we suggest that given the similarities that can be identified there is little reason to assume that UTx is any less morally problematic all things considered. With this in mind, scholars would be wise to refrain from unreflectively suggesting that UTx is less morally problematic than surrogacy without explaining exactly why they have come to this conclusion and policy makers in countries such as Sweden, which take a hard line against altrusitic surrogacy, must consider the possibility that forbidding all forms of surrogacy may well be inconsistent with permitting UTx using living donors.

ACK N OWLED G EM ENTS
For detailed and helpful comments on previous drafts of this paper the authors wish to thank members of the Reproductive Donation team at Lancaster University and Kings College London and two anonymous reviewers from Bioethics. Special thanks are also due to the Wellcome Trust who funded this research and the event 'The Ethics of Uterus Transplantation' held at Lancaster University in 2016, where the seeds for this collaboration were sown.

CO N FLI C T O F I NTE R E S T
The authors declare no conflict of interest.

CO NTR I B UTO R S
Both authors made an equal contribution to the conception, design and writing of this paper.

Lisa Guntram is a lecturer in the department of Thematic
Studies-Technology and Social Change, Linköping University.
In a current project, funded by the Swedish Research Council