“Imagine the folly of allowing people to play elaborate games which do nothing

whatever to increase consumption. It’s madness. Nowadays the Controllers (the government) won’t approve of any new game unless it can be shown that it requires at least as much apparatus as the most complicated of existing games.” Aldous Huxley, Brave New World

No one wants to imagine or believe ‘the miracle of birth’ as an item of consumption or a margin of profit, but it is happening. It is called surrogacy and masked by a language of vagueness and ambiguity. Those most afflicted are the women who choose to bear a child. She is termed the surrogate[1] mother. A woman will be contracted to a childless couple[2], usually for a fee, to become pregnant and gestate a child for them. This contract can be drawn up however the members want it to, but will typically have the gestational mother’s legal and medical expenses paid for. At the end of the pregnancy, the impregnated woman relinquishes the child to the couple at which time the contract is complete. If the surrogate mother’s fee is not yet paid in full, it will be after the couple has the child, as some sort of token of gratitude (Schwartz, 102). While the childless couple’s responsibilities are primarily monetary, the gestational mother has far more objectives to meet to fulfill her part of the contract. She must sign away a great deal of who she was. These contracts imply that she is not to form an emotional attachment to the child she carries. She must sign away her right to an abortion. If she is married or romantically involved, there could be a stipulation of abstinence on her behalf for the sake of the child. She signs away her parental rights and is obliged to recognize the childless couple’s claim as the legal parents of the child she carries.

While this resolves a couple’s childlessness there are ethical, legal, gender specific, economic and scientific complications created from participating in this practice. These problems do not always have solutions. As for the satisfied questions, the consequences are incessantly grave. Whether the issue arises in a scientific laboratory, school, courtroom, or at the market place, there is an increasing desire to control procreation and reproductive rights. This reduces reproduction into a business where products can be bought and sold. These products are the woman’s body, her separate parts and her reproductive functions. Not only is the woman commodified, but the child she bears also becomes a product of pregnancy. “Babies sell products; babies become products” (Rowland, 3).

Social consequences are blurred because the new reproductive technologies (NRTs), surrogacy situations in particular, are portrayed and sold as individual solutions to individual problems. People see NTRs as only helping their individual situations, never taking into account that they (the buyers and sellers) themselves are situated (i.e. people reciprocally influence and effect each other). This individualistic mentality establishes a precedent of ‘helping the infertile’. While ‘helping the infertile’ might be the advertising campaign of a surrogate broker or the altruistic ambition of an individual, the potential and reality of controlling women’s reproductive abilities and controlling child birth has far greater implications than just that of any one individual. This is why a uniform ban on surrogacy as both a commercial and non-commercial practice is necessary.

The best way to understand surrogate motherhood as related to public and ethical issues that surround it is to briefly look at three cases that were subject to media attention. First is the Stern-Whitehead (or Baby ‘M’) case that went to the New Jersey Supreme Court during 1987 through 1988. William and Elizabeth Stern contracted Mary Beth Whitehead via the Infertility Center of New York to be artificially inseminated using the semen of William Stern. After Whitehead delivered baby ‘M’, she fled to Florida taking the child with her. The case went to court with the Sterns winning custody on grounds of a legally binding contract. The case was appealed and went to state Supreme Court and the decision was slightly revised due to baby-selling laws in New Jersey. The contract was voided because it went against public policy and the contract was one of illegal baby selling. Custody remained with the Sterns and Whitehead had a second chance for visitation rights.

The second case mentioned here comes from South Africa. It is one of the few popularized occurrences of surrogacy that was practiced out of selfless motives. 48-year-old Pat Anthony gave birth to triplets who were also her grandchildren. Anthony was fertilized in vetro by her infertile daughter’s egg and son-in-law’s sperm. A woman at the age of 48 should be cautious of pregnancy, especially with triplets. Since it was known she would bear triplets, the children were delivered by means of caesarean section. Anthony maintained she was not doing it for herself of any maternal instincts; she was doing it because her “daughter was desperate for children and unhappy because of it”. While she denied any maternal instincts to the children she gestated and bore, Anthony embodies the archetype of “maternal self-sacrifice with respect to her daughter” (Rowland, 177).

Anna Johnson was contracted by Mark and Crispina Calvert to carry their ‘pure’ genetic offspring. Crispina donated her egg to be fertilized by her husband mark and then implanted into Johnson. In the seventh month of her term, Johnson decided that she wanted to keep the baby. In a California court, the judge ruled that Johnson had no genetic ties to the child she was carrying and therefore could not assert any custody rights. It was ruled that what is not being sold is the child but rather “pain and suffering” (on the carrying mothers behalf).

With scenarios as wild and varied as these, it is easy to see how the public cannot come to a consensus one way or the other on surrogacy. But it is not the nature of surrogacy to be a vague and disjointed topic. In particular a strategy of language manipulation, by those who will profit, which creates an incoherent portrayal of what really happens. Instead of seeing a whole person, a woman is dissected into parts: her eggs, her womb, her uterine environment.

The effect of such use of language is insidious and pervasive. It infiltrates media reporting of reproductive technology, influences the legal system so that judges see women as alternative reproductive vehicles, and convinces women themselves of their role as incubators. (Rowland, 230)

If surrogacy is to flourish, the scientists and (even more so) the financiers must find a way to hide or ignore the fact that a mother is torn away from her child while highlighting the surrogate’s selflessness and the infertile couple’s happiness.

It might be helpful to understand surrogacy in the context of the tragic theme, where all players involved have in some way left troubled. The scenarios and consequences that constitute the whole are not devastating by themselves. But when they are shown together as a unified body, the practice of surrogacy is formulaic tragedy.

To discuss the roles of people involved in surrogate motherhood, there needs to be clarification and uniformity of the terminology we use in prescribing titles to those people involved. Identifying the possible roles a woman can have in this process. Thomas Shannon established a list of seven different scenarios for a woman involved in surrogacy. First is that of the genetic mother, she who produces and matures the egg. Secondly, the surrogate mother who gestates the embryo for the (traditionally) nine months. Third is the nurturing mother who cares for the child after its birth. The next four are a fusion of the previous three. The genetic-gestational mother supplies the egg and carries the developing fetus, but is not the primary caregiver after birth. Fifth is the genetic-nurturing mother who supplies the egg and care for the child after birth, but does not develop the child in her uterus. Sixth is the gestational-nurturing mother, she who carries the pregnancy and attends to care after birth, but does not supply the egg. And last is the complete mother, who performs all three functions.

There are far fewer roles a man can have in a surrogate arrangement. First he can be the genetic father by providing the sperm. Secondly he can be the nurturing father who provides no sperm but care for the baby after it is born. Third, the complete father who fulfills both roles. Last is the husband or boyfriend of the woman willing to become a surrogate. Having less of a biological and chronological connection with the process simultaneously diminishes the importance of the male role and recognizes the female role, specifically the carrying mother, as the predominate participant. Since it is the woman who will be harmed, it is necessary to focus attention in legislation and ethics that is aware of the distinction owed to women.

In Shannon’s list, it is easy to see the complexity of surrogate reproduction once new technologies enable people to do so. While some of the role players will not have as tragic as an end as others, they all effect and act upon each other to various degrees. The participants who are devastated the most will receive the most attention, the surrogate mothers. And because surrogacy centers around the woman, it is impossible to see surrogacy as a gender-neutral issue.

The situation where gender is most distinctly obvious is in the science and technology of surrogate motherhood, primarily utilizing in vetro fertilization (IVF). It is the process by which ‘preovulatory follicles’ are stimulated as to produce more eggs, and then the eggs are recovered and preserved until they can be tested. The eggs are placed inside of a Petrie dish soon to be inseminated by a sperm donor. The fertilized eggs can survive outside a womb in the lab until the fertilized egg being placed inside a “suitable uterus”. This process is also called embryo transfer (Thatcher 27-34).

Background Legal Considerations:

Federal law versus state law: who does what?

Federal- has powers granted to it by the Constitution with all residual powers falling to the state or people (240, Congress) Medicare and Medicaid play a role in the funding of a hospital, but not necessarily the practices of that hospital.

State law has the ultimate say in almost all surrogate mother cases. As different states hear different cases and are presented different scenarios, so too will the law change. One aspect of state law that emerges is tort law- the intentional or unintentional injury of one person to another. Intentional injury focuses on the physical touching of a person without their consent, such as a rape. But this definition is vague enough that coercion could fall under its jurisdiction. If a friend or sibling were to be intimidated by close friends or relatives that were infertile and she was the only viable option ñ financially, emotionally, genetically, etc. Unintentional injury is acting in unreasonable behavior that “breaches a duty of care owed to someone else, thereby causing harm.” (241, Congress-10th Amendment). Surrogate motherhood can unfortunately become unintentional injury for many reasons: miscarriage, abortion, birth defects, and the psychological horror that accompanies these misfortunes. Work through the state laws to get to the federal laws and make surrogate mothering illegal, and for those who might still be pregnant, amend existing state adoption laws to settle the cases individually with the child’s best interest’.

There are five possible legal/ ethical responses that are proposed here for consideration. They begin at one end of the spectrum: first, a hands-off approach to commercial and non commercial, move to secondly, a criminalization of commercial surrogacy and acceptance of non commercial arrangements; third, regulating commercial surrogacy while not enforcing non-commercial practices; fourth, systemizing both commercial and non-commercial to follow a pattern of adoption law; until the fifth proposition (Tong, 57). The most humane policy a society could enact would be to ban all forms of surrogacy arrangements. Before the proposal on a unified ban, it must be shown that these alternatives to a full ban will not bring justice and equality to those involved. Tong provides a working outline for four of the proposals. Surrogacy a uniform ban on commercial and non commercial surrogacy

The first model to investigate is the non-enforcement policy. This model does nothing. It reaffirms “the status quo”. If either party breaches the contract, the state cannot uphold the contract. It is declared null and void, as was the case for baby “M”. While the state can maintain a passive attitude to the consenting adults, it cannot turn its back to the child. The state would default to the child’s best interest criterion, much like in a divorce case to judge the fate of the child. In many instances, custody is rewarded according to wealth. Since the majority of willing carriers are poorer than their contacting partner, custody will almost be automatically granted to the richer parent. “Just because one parent is wealthier than another parent does not mean that s/he qualifies as the better parent” (63). A long and unfruitful custody battle cannot be in the best interest of the child. But under a passive position like total non-enforcement of commercial or non-commercial arrangements, the children will inevitably pay the price for their parent’s erring ways.

The second proposed policy would be to criminalize all commercial surrogacy while permitting non-commercial surrogacy to remain legal. This is the current situation in Great Britain. The people who drafted the Surrogacy Arrangements Act (UK) recognized that while surrogacy is not always harmful to everyone involved in the production, it is always immoral: “that people would treat others as a means to their own ends. Such treatment of one person by another becomes positively exploitative when financial interests are involved” (Surrogacy Arrangements Act, ch, 49, p. 46). By criminalizing such acts, it is easier to see the deep reaching moral implications of this undecided American law that has to be resolved. As a Marxist feminist would contend: surrogacy is a form of prostitution formally unavailable to women, due to the lack of technology. But now that it is possible, this society manipulated a technology not to improve the lives of women but to find new ways to turn the woman into a commodity. Children could once again become the target of unintended danger that arises from these legal complications. As in the case of Calvert-Stiver, the child might not always end up with the best possible scenario. Both the Calvert’s and Judy Stiver refused to take custody of the mal-born baby. Instead the child ended up in a state sponsored hospital.

A third possible policy regarding commercial surrogacy would be to treat it like existing adoption or contract laws. This model is defended by those who believe surrogacy is never intrinsically wrong for the carrying mother or the children produced. Surrogacy can give the carrying mother a sense of performing a selfless act, really helping people in trouble, or making some money. Using a loose interpretation of the constitution, this argument asserts that since surrogacy would be regulated via contracts, there is no reason to stop (at least) two consenting adults from entering a legally binding deal. “Although society is not required to enforce any and all contracts, – say, a contract to kill someone, or a contract to sell one’s self into slavery consenting adults have a right to contract with each other to procreate a child collaboratively” (Tong, 69). The problem with these contracts is that too often they do become a woman sold into reproductive slavery for at least nine months, usually over two years with testing (for the carrying mother) and choosing of a few possible candidates (for the contracting couple). No amount of careful and correct wording can ever make a surrogate contract plausible or equal. Patty Foster’s experience in the delivery room (Corea, 149)

The fourth scenario considers regarding non-commercial surrogacy as a function of adoption law. By modifying current adoption laws, Tong believes a shift from (traditionally and) exclusively child-centered motives at work in adoption to adult-centered motivations, such as “deliberately” bringing a child into the world to love and care for. This is justified by the way in which the adoption laws would be rearranged. It would “eliminate the profit-making brokers without requiring gestational (carrying) mothers to endure a pregnancy simply to help an infertile couple” (Tong, 72). There would also be an embedded “change of heart” clause. This period of time is important because it recognizes the important role gestation plays in motherhood. It also has the best intention of the child in mind. The birthing/carrying mother is present at birth and the time immediately thereafter. She is more likely to “protect the child’s interests than any alternative arrangement” (72). The fourth policy seems to be the closest to achieving a viable solution. Although it omits a large aspect of the problem: treating the act of surrogacy itself as harmful. Since the act itself is a violation of human dignity and value, it is necessary to ban all surrogacy, commercial and non-commercial, coerced or willing.

One method of redirecting the argument away from women is to bring the potential child and the child’s rights into the debate. Steinbock states in her article “they (the children) can be wronged if they are deprived of a minimally decent existence to which all citizens are entitled” (Maples, 556). Steinbock is correct in her defense of human dignity but ignores extending that same defense to women. She concludes that the “reasons justify restrictions on surrogacy rather than an outright ban” (554). This is an opportunity to examine and evaluate the arguments in favor of allowing surrogacy.

Those in favor of banning surrogacy are accused of being paternalistic. That they are “protecting a potential surrogate from a choice she may later regret” (554). This is a paternalistic tendency; but that is not where advocates of a surrogacy ban take moral or legal issue. A paternalistic argument does not address the entire issue. It detours at critical points. One such departure is that paternalism cannot account for the fact of women are being used as commodities. A justification for their paternalistic fears:

The mere fact that pregnancy is risky does not make surrogate arrangements exploitative, and therefore morally wrong. People often do risky things for money; why should the line be drawn at undergoing pregnancy?

Advocates of surrogacy suggest that critics of surrogacy are captivated by the horror stories and refuse to look at the thousands of successful cases. “Those are the cases in which a woman never causes anyone any harm, never recognizes any violation of her human dignity” (Corea, 153). This is similar to the current situation with rape. Just because a woman doesn’t report rape does not mean it didn’t happen to her. What a surrogacy contract entitles women is the right not to have control over their own bodies. The woman and her body become more and more subject to the sperm donor’s wishes and to professional experts who are put in charge of the carrying mother’s welfare. And what is she compensated? Usually a $10,000 payment is exchanged for nine months of pregnancy 24 hours a day. That breaks down to $1.50 per hour. This would seem and be financially attractive for some poor women. But that only reinforces class differences as inequalities. Even if made a commodity, this would not be a fair and nonexplotative price, it’s below minimum wage. Numbers aside, to put a price tag on pregnancy is to commodify the woman. And to commodify a human being is defined as slavery. By regulating surrogacy contracts the entire shift from the woman is disrupted. It becomes a gender-neutral topic again. This kind of distortion and absence of recognition silences women’s claims to dignity and bodily security. A contributing and powerful force of this silence is coercion.

Ruth Macklin proposes a two criteria definition for coercion: a threat or force of bodily harm and performing an act someone would not otherwise do voluntarily or involuntarily. She also offers that manipulation is influencing a person’s decision by “making generous offers of material goods or higher status” (Shannon, 48). Both of these definitions are applicable in either commercial or non-commercial arrangements and show how they are tools of the exploitation of women’s bodies. Another more precise definition is given by Gert and follows:

In my view, only someone with the ability to will can act freely or can act under coercion, that is, only voluntary actions are done freely or under coercion. Unreasonable incentives are needed in order to define both of these concepts. A man acts freely if and only if he acts voluntarily and does not do so because of any unreasonable incentives. A man who acts voluntarily, but only because of unreasonable incentives, does not act freely. If the unreasonable incentives were the result of a threat of evil by someone, then he acted under coercion. If the unreasonable incentives were the result of a promise of good by someone, then he acted under enticement (51).

Whether in a coercive or non-coercive situation, the ability to choose is always present. The important distinction Gert highlights is between the concepts of choice and freedom. Choice is voluntarily choosing something. Freedom requires that a voluntary choice be made without unreasonable incentives. Coercion is unreasonable incentives hindering freedom. In surrogacy, these unreasonable incentives are known to be money, psychological fulfillment, feelings of inadequacy or guilt from family or friends- to name a few. This legally permitting choice a woman makes is not one of freedom, but of coercion. She is given empty and vacuous rights. She is endowed “junk liberty that is full of artificial preservatives, ‘junk rights’. Women have the right to be treated as commodities. We have the right to subject our most intimate feelings and relationships to contract law. We have the right to be sold” (Corea, 155).

These rights do not empower women, they diminish her political mobility. Her political immobility is a symptom of alienation. If the woman is paid or compensated for birthing a child, she has been subjected to alienated labor.

Essentially then, alienated labor is labor through which the worker creates something that is both detached and taken from him or her by those who do not work but who own the means of production. It is labor that is impersonal, not fulfilling, and keeps the worker in a dependent situation (Shannon, 68).

This passage tightens the relationship between woman as a commodity and her loss of freedom. Prostitution is an accessible parallel for legalized surrogacy as Kant maintained in his position against prostitution.

To allow one’s self for profit to be used by another for the satisfaction of sexual desire, to make one’s self an object of demand, is to dispose over oneself as over a thing and to make of oneself a thing on which another satisfies his appetite. The underlying moral principle is that a man is not his own property and cannot do with his body what he will. The body is part of the self; in its togetherness with the self it constitutes the person: a man cannot make of his person a thing (Kant, 165).

This is the same kind of argument Tong used to justify her claims on the criminalization of commercial motherhood citing the United Kingdom’s Surrogacy Arrangements Act. While not harmful to all carrying mothers, surrogacy is always immoral. Just as a prostitute sells sex services for money, a surrogate sells her reproductive services for a fee. Neither case presents the women having the opportunity to make a free, unforced choice. “She is driven to sell her body and or its functions” (Tong, 65).

While Kant and Marx have different methods, they reach the same goal: that alienating practices deprive people of their human dignity and intrinsic value. Once the body has a market value, the self is lost. A greater gap between the two continues and the self ceases to be. This person has become a means and not and end. A surrogate’s humanity is denied while her body is being used for procreation. By objectifying one aspect of the woman (her ability to reproduce in surrogacy and perform sex acts in prostitution) she is forced to confront the “alienation of a capacity that is essentially personal in nature” (Shannon, 72). She is only a product that a couple can buy and have a baby with.

Cite Munoz Case

With similar repercussions, children could be also seen as objectified commodities. Part of a surrogate contract is how, when and where the carrying mother will forfeit the child and receive full compensation only after the child has been delivered to the contracting party. It is a very fine line that these contracts waver upon. What surrogacy has the potential for endorsing and supplying is the market for baby selling. This attitude is typified by a not-quite-right clause.

Patty Nowakowski and a Michigan man contracted for a girl. Nowakowski delivered twins, and the man took only the daughter. Patty was left to take in the foundling child as her own son, although legally she had no obligation to. A maternal instinct saved this child from the adoption agencies. But as the man stated, “I ordered a pink one not a blue one” (147).

That is when the child does not meet the requirements of the anticipating couple; they can refuse custody of the child. If a fee is involved, then it does not have to be paid. If there is no fee involved the child is less subject to alienation and commodification. But just because the child’s experience can be less traumatic, depending on the case, this by no means alleviates the duress of a carrying mother becoming objectified. As Nancy Barrass tells her story, there is a definite negative impact from surrogacy projected onto the carrying mothers. She felt that she did not even have a place at the shower of the contracting couple, despite the fact that she was pregnant with the contracting couple’s child (Corea, 147).

The results in a non-commercial surrogacy are no different from that of a paying gestation. This bolsters the idea women can be used as suitable breeders. What they are commended for is their maternal environment and selflessness. Though there might not be any money involved in a non-commercial setting, the same acts of coercion can still be used against women. A woman used to give up her life for her children. Now that is not even enough. She is required by some altruistic pressure, internally or externally, to hand over not just her life for her baby, but also the baby.

Gender neutrality: by keeping people homogenized under one law, they are kept dormant.

Baby ‘m’ case, Johnson case: the specific court language in these two cases is blatantly gender-neutral. The words offer no real long-term support. The tendency is to focus the care and support to the child in question, very rarely ever will there be a kind word for the woman.

“The issue of infertility is really a smokescreen that covers what is done to women” (Raymond, 90). What is needed is a gender aggressive ruling on a decision for surrogacy. There is no basic respect paid to women as it has been dealt with in the courts, and therefore cannot correctly be judged. Once we identify the legal standing of women in our society we can then begin to examine another phenomenon, like new reproductive technologies in the law and how and why they should rightly inform public policy. Until women are seen as a class of people who are marginalized by certain institutions, the discussion will once again fall silent.

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(Scientifically, there are terms that need to be defined?

The reason to bring up science here is to acknowledge and show the undeniable gap between technology and law and the need of law to keep pace with these emerging technologies, especially within reproductive medicine. )

Address the guilt and anxiety infertile couples feel: there is real pain but there is also narcissism- genetically.

[1] Surrogate and gestational will be used interchangeably, unless specifically noted, for stylistic reasons.

[2] The woman is not always contracted and not always sold to a couple. There can be a number of persons seeking her reproductive services: single men, single women and gay couples are all possible participants in this situation. I read of one case where a man had requested a woman to be a surrogate. She was to be artificially inseminated with his sperm. So far a standard case. But this man was not going to be present for much of the pregnancy, because he was going to Europe to have a sex change operation so he could be both mother and father to the child. He was denied permission to have the child.