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Sexual Surrogacy: Better Than Prostitution?

Silk SheetsThis past March, France’s National Ethics Committee made the determination that sexual surrogacy is an “unethical use of the human body for commercial purposes.”  Sexual surrogacy, as readers may know, is the practice of providing intimate, sexual contact in the context of therapeutic care for patients who are experiencing difficulty (due to physical or psychological challenges) in achieving sexual fulfillment in their lives.  In this column, I will consider the arguments for and against considering sexual surrogacy to be ethically distinct from, and superior to, prostitution.

The Argument for Legalizing Prostitution, Defined to Include Sexual Surrogacy

One argument in favor of sexual surrogacy is that it is indeed a form of prostitution, and that prostitution itself ought to be legally permissible.  I have myself argued in favor of decriminalizing prostitution, on the ground that its status as a criminal act does more harm than good.  Though I view prostitution as a troubling practice in a variety of respects, it seems to me that classifying as criminals the people (mostly women, but also including men) who provide sexual services for money makes them more—rather than less—vulnerable to violence, exploitation, and predatory behavior than they already are, given the work that they do.

Others take a far more welcoming, libertarian view of prostitution and believe that it is a job, no different from any other job that commodifies human activity, and that people—both buyers and sellers of sexual services—ought to have the right to engage in this sort of exchange without much governmental intervention.  I would place this line of argument into the category of “free market” ideology that holds more generally that the government ought to do very little to interfere with “bargained-for” exchanges that buyers and sellers choose to make.  If, for example, you want to work in an asbestos-filled factory and you know exactly what you are getting into, then on this theory, the government ought to permit you to do so and should also permit your employer to hire you for that purpose.

The risks that you, as a laborer, undertake, on this approach, may be monetized and appropriately compensated (assuming, again, that you know about them), and the work that the laborers voluntarily take on thus (and necessarily) results in a net benefit for everyone, since you presumably value your compensation more than your health, and your employer values the services you perform more than the costs of compensating you now for your work and for the losses you may someday endure.

Some would go even further regarding prostitution, and argue that it is the expression of a fundamental right to sexual liberty and therefore is inherently valuable and entitled to greater protection from governmental interference than the performance of other sorts of potentially dangerous work.  They would accordingly claim that any time an interaction between consenting adults involves sexual activity, the interaction ought to be (at least presumptively) constitutionally protected from governmental interference.  Prostitution, within this framework, is thus different from a hazardous job in a toxic chemical plant, the latter of which may and ought to be regulated or perhaps even prohibited by law.  Prostitution, by contrast, implicates the sexual autonomy of the actors involved, and we should be very hesitant as a society to dictate to people what they can and cannot do in private with a consensual partner.

As I mentioned above, I reject the criminalization of prostitution, but I also reject both the libertarian and the robust sexual-autonomy view of the practice.  Instead, I think that prostitution is at best an unfortunate reality that both reflects and reinforces a destructive view of sexuality as a product or commodity to be purchased and sold.  I think that prostitution carries the many dangers that it does (including the substantially increased risk of rape) because it is the sort of profession in which “clients” are encouraged to think of sex workers as property to be temporarily rented (and therefore subject—according to a substantial number of clients, not to mention pimps—to being raped with impunity, on the theory that so long as payment is made, there is no real harm).

Sex work may also contribute to a degraded view of women’s sexual agency more generally.  We see evidence of this, for example, in the description of women who want to have sex with multiple partners (out of desire rather than the need for cash) as “whores.”  The practice of prostitution tends to reinforce the view of sex as something that “good girls” surrender to men only in very limited circumstances, and that “bad girls” give up easily, thereby forfeiting their right to be free from violation.

Sexual Surrogacy as Different From Prostitution

One can take the view that I take above—or even believe that prostitution ought to be criminal, as it is almost everywhere in the United States—but still regard sexual surrogacy as a distinct activity, not equivalent to prostitution, that is appropriately subject to a different, more positive, sort of analysis.  Let us now consider this argument.

Those who suffer from disabilities that impair their access to sexual fulfillment and that motivate them to seek assistance from a sexual surrogate fall into roughly two general categories.  One category includes people who have anxiety about sex and hope that a sexual surrogate can help them overcome their anxiety, thus enabling them to go on to have fulfilling sexual relationships with people whom they will not be paying.  Another category includes people who may be paralyzed or otherwise physically unable to have sexual relations.  For them, the sexual surrogate may be their only opportunity for sexual experiences, because—unlike those in the first category—they will, absent the surrogate, be sexually isolated, regardless of how much they want to have sex with others (or even to masturbate).

For those in the first category, a sexual surrogate is somewhat like an ordinary psychotherapist who role-plays with a patient.  If you are scared of confronting your father about the way he treats you, for example, your psychotherapist might play the role of your father (or of you) and help you work through your fears and summon the courage and skill to stand up to an overbearing parent.  By analogy, if you are terribly anxious about the prospect of having sex with someone, the sexual surrogate can help demystify sex for you and play the role of someone with whom you might, in the future, seek sexual intimacy.

The goal, in both cases, is to help you overcome your anxiety and engage in the activities in which you want to engage and through which you can find greater life satisfaction.

For the second category of people who wish to employ a sexual surrogate, the case for allowing it is both stronger and weaker, along different dimensions.  What makes the case stronger is that the group is far more sympathetic.  Someone who suffers from sex-related anxiety can perhaps work on that anxiety simply by talking to a therapist about it and trying suggested techniques on his or her own, through private simulations, without the physical assistance of a surrogate.  By contrast, a person who suffers from paralysis and simply wishes to enjoy a sexual encounter does not have the option of “trying it at home” because he or she literally needs another person in the room to make sexual experience possible at all.  To refuse access to people within this category is perhaps to make sexual activity utterly impossible for them.

On the other hand, the first category of patients can more plausibly characterize their visits with the sexual surrogate as therapeutic treatment.  The goal, for them, is not simply to have an orgasm but to change themselves in some way and thus to facilitate their going out into the world and having fulfilling sexual relationships with partners who desire the same.  For the second category, by contrast, the people there are not so much seeking a therapeutic intervention as they are seeking the closest available approximation of sexual involvement with the surrogate.  In other words, the therapist is not “fixing” the problem in order to permit the patient to better function in the world; the therapist is instead acting as the only willing sexual partner in that world.  In that sense, the prostitution classification may seem more apt in describing the second category, because the patient is paying for sex with the surrogate, rather than for assistance in improving a health problem so that he or she can later have sex with an interested partner.

And yet, for this very reason, it seems cruel to prohibit the sexual surrogate from helping the patient, because without her (or his) help, the disabled person may have no opportunity whatsoever for sexual enjoyment.  Indeed, the words of Anne-Marie Dickelé, one member of France’s National Ethics Committee, unwittingly capture the seeming callousness of opposition to sexual surrogacy for the disabled patient, in saying that “[t]he sexuality of the disabled cannot be considered a right.”

A Medical Exception?

If one is unpersuaded by the arguments that sexual surrogacy is distinct from prostitution, and one also opposes the legalization of prostitution, then one possible alternative is to say, “Yes, it’s like prostitution, but even so, some people have a stronger claim that they need the services of a prostitute than others do.”  That is, if a person is disabled and cannot otherwise have a sexual experience, then that person ought to be free to achieve some semblance of sexual fulfillment through a prostitute or through a sexual surrogate (who may, in relevant respects, resemble a prostitute).  One might even compare a disabled person’s use of a sexual surrogate to the use of marijuana by people suffering from various medical conditions.

Even if one believes in banning the use of marijuana because the drug is generally destructive of health and harmful in various ways, one can recognize an exception to a legal prohibition for its medical use to ease what would otherwise be nearly intolerably painful health problems.  In California (and quite a few other states), people have made exactly this calculation, thereby permitting a limited exception to their existing bans on marijuana use.  For similar reasons, one could argue, a person who can get relief from his paralysis-induced sexual isolation only through the services of a sexual surrogate should expressly be given legal access to that option, precisely because, contrary to the French National Ethics Committee member’s view, disabled people most certainly do have a right to sexuality that is of no lesser weight than that of the rest of the population.

Is Surrogacy Actually Worse Than Prostitution?

Though I find the medical-exception argument appealing, I would like to suggest, in the interests of balance, the possibility that sexual surrogacy may raise issues that make the practice more, rather than less, troubling than ordinary sex work.  Consider the context of employment relationships more generally.

In an ordinary job – one that is not prostitution – an employer violates Title VII of the 1964 Civil Rights Act if he, she, or it sexually harasses an employee, under the Supreme Court’s ruling in Meritor Savings Bank v. Vinson.  A most basic form of sexual harassment, moreover, consists of “quid pro quo” harassment, which amounts to extending the promise of job advancement (or the threat of a corresponding penalty) for the performance of sexual favors.  Asking an employee to have sex as a prerequisite to a job benefit thus, ordinarily, represents a classic case of sexual harassment.

To the extent that sexual surrogacy is something other than prostitution, then it is worth asking whether perhaps the injection of sexual requests (and the implied or express threat of terminating the employment relationship if those requests are unmet) into an otherwise non-sexual market relationship is itself a form of quid pro quo sexual harassment that therefore violates Title VII.

Yet another distinct feature of sexual surrogacy is that, unlike prostitution, it involves a therapist and a patient.  This means that perhaps the professional norms that ordinarily govern therapeutic relationships (between doctors and patients, and especially between psychotherapists and patients) ought to apply.  If so, then the proper rule might be that it is categorically unethical for a therapist to engage in sexual relations with a patient.  Precisely because of the patient’s vulnerability when seeing a therapist, and the power dynamic that develops in such a context, it may be considered abusive for the therapist to have sex with the patient, even though the patient may be very interested in having sex with the therapist.  In contrast to the Title VII argument, this argument considers the possibility that it is the therapist who is taking advantage of the patient in the situation, rather than the other way around.

These two novel ways of thinking about sexual surrogacy, as sexual harassment of the therapist or, alternatively, as sexual abuse of the patient, highlight a point that will be familiar.  Sexual relations are distinct from other sorts of activities.  Compared to other activities that are routinely marketed without event, the direct purchase and sale of sexual intimacy, whatever the context, strikes most people as creating special problems, risks, and societal consequences, simply in virtue of the fact that sex is being exchanged.

We have, over time, come to understand that sexual relationships between unconventional partners (people of the same sex, people of different races, or people of different religions) are essentially no different from—and just as fundamental to people’s lives as—sexual relationships between conventional partners.  Yet the idea that sex is fundamentally about partners who are sexually interested in one another—rather than about a commodity that is sold by one to the other—remains with us, notwithstanding the social progress we have made.  Even as same-sex marriage has come to occupy a place of respectability and legality, prostitution and sexual surrogacy remain controversial, and may always be subject to stigma.

This is part of the uniqueness of sex:  having sexual autonomy is tremendously important for human flourishing, but keeping money and employment separate from sex may be just as important and perhaps even an essential part of facilitating true sexual autonomy.  I disagree with the member of France’s National Ethics Committee who said that the sexuality of the disabled cannot be considered a right, and I certainly disagree with criminally prohibiting sexual surrogacy (or prostitution, for that matter).  Yet I remain troubled by sexual surrogacy, both from the perspective of the therapist/employee whose sexuality is part of her job description, and from the perspective of the disabled patient, whose unrequited desire for sexual fulfillment becomes an occasion for making a profit from him.  I do not offer a simple solution, but I remain convinced that it is a problem that has yet to be effectively solved.

Sherry F. ColbSherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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  • WeeCareSurrogacy USA

    yes , it’s true !!

  • Joe_JP

    “The Sessions” would have been a good citation here.

 

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