Surrogacy arrangements are ripe for legal and ethical messes, as the case of Melissa Cook shows. She is a 47-year old gestational surrogate who delivered triplets several weeks premature. She was conscripted for the job by a deaf 50-year-old postal worker in Georgia. The two engaged in a legal battle after the commissioning parent-to-be expressed his desire to “reduce” the pregnancy as permitted in their written contract, which meant aborting one of the triplets.
Cook claimed the contract she signed violates her rights to equal protection and due process. She was banking on the idea that no California court would force a woman to undergo an abortion, rendering the “reduction clause” of the contract unenforceable. She wants to adopt the third baby and give the other two to the father, as promised. The battle over “reduction” is now a custody battle, as all three babies were taken away from the surrogate immediately after birth given that she had contracted the children away.
Cook is now fighting for California’s surrogacy law to be ruled unconstitutional because, according to her lawyer, “it reduces a surrogate to a ‘breeding animal or incubator.’”
State surrogacy laws, which are often unclear and in some cases nonexistent, are a labyrinth for all parties in surrogacy arrangements. Treacherous as it may seem, the arrangement often proceeds with no contract, and is then drawn up when issues begin to arise. Due to confusion among adoption and surrogacy laws, the payment for a woman’s “service” of gestation or delivery of a child—what constitutes the “sale” of a baby—is, apparently, far from settled.
But the harm done to women and the “products” of conception is indisputable. Surrogacy is a legal mess partly because the laws are ambiguous, but primarily because surrogacy is, at its foundation, ethically compromising.
The Entire Surrogacy Process Is Dehumanizing
In the documentary “Breeders: A Subclass of Woman?” director Jennifer Lahl of the Center for Bioethics and Culture describes how surrogacy in Thailand, India, and Mexico, and even here in the United States, has created a class of female “breeders,” or mere biological vessels used to gestate a fetus. The documentary explores the stories of four former surrogates, including their treatment not as a consenting party with full rights in a transaction, but merely a body to use for producing a baby.
While commercial surrogacy is banned in most of Europe, and countries that have had strong surrogacy markets are working to shut it down, surrogacy is practiced without penalty in all but a handful of states in the United States. Commercial surrogacy in India was a booming industry, but India’s Health and Family Welfare Ministry recently declared it illegal, and business is shifting to other countries as India works to introduce new anti-surrogacy legislation.
According to 2014 article from the Telegraph outlining the British demand for Indian surrogacy, Indian authorities thought the industry to be worth as much as £1.5 billion annually. But the business became an ethical quagmire. A 2012 article on India’s substantial surrogacy industry, based mostly off wealthy Western “commissioning couples” such as those from the United Kingdom or Australia, described the treatment of “breeders” in this way:
The surrogacy contracts signed by Vaghela and all surrogate mothers in India exempt the doctors and the foreign couple who want the baby from all liabilities, making the surrogate mother and her husband assume all medical, financial and psychological risks.
The contracts also state that if the mother is diagnosed with a life-threatening disease late in pregnancy, she is to be ‘sustained with life-support equipment to protect the foetus’ viability and ensure a healthy birth on the genetic parents’ behalf’. The relative importance of mother and child are laid bare.
…Indeed, Indians are starting to feel uncomfortable at the commercialisation of motherhood and pregnancy. They see images of pregnant women in printed nighties corralled in dormitories like cattle at a breeding farm. The women are often kept confined in one place by the clinic, away from their families, to avoid the risk of catching sexually-transmitted diseases from their husbands and to ensure they get a good diet and proper rest.
Unsettling as it may be, we should recognize the parallels between surrogacy and prostitution, another industry built largely on the desperation of women and a physical use of the body completely divorced from natural intimacy. It is not a holistic interaction between persons, on physical, emotional, and spiritual levels, but the use of another’s body as a means to an end.
Are women treated more humanely in surrogacy than in prostitution? In most instances, probably, but central to surrogacy is the use of a woman’s body, in the most intimate way, for money. That materialistic exchange dehumanizes the woman, turning a human person into a commercialized object. As one interviewee asserted: “Calling a mother a gestational carrier is a euphemistic way of dehumanizing her and taking away the relationship [between the mother and the child] by removing the word ‘mother.’”
Uteruses for Rent
Gail, one of the women interviewed in “Breeders,” who carried twins for her gay brother and his partner, reaffirmed the dehumanizing effect of surrogacy on women. She claimed she was not treated as a stakeholder, but as an “incubator”—simply a uterus to be rented and returned with no hassle. And this was a case among family, where the surrogate was unpaid and doing it for altruistic reasons.
Lahl relays how, during a custody battle, the lawyer for the gay couple said, “Something to the effect of, ‘We just need to change the law so that the law recognizes that some women are just going to be used as breeders.’” According to Gail, during pregnancy her relationship with her brother so quickly degraded that, at one point, he told her, “Well, I’ll find some other stupid female to have my children.” He later suggested the babies be aborted, as the surrogacy was not going as they had planned.
As “Breeders” shows through the testimony of its four surrogates, the abortion debate is inextricably tied with in vitro fertilization (IVF) and surrogacy, not just because things don’t go “as planned,” but because the gestation of multiples is so common in IVF—medical professionals implant multiple embryos to increase the chances of at least one of them surviving. Sometimes more than one does. The cost of caring for multiple babies becomes a factor for some, or simply a desire to not have more than their original desired number of babies.
Abortion is dehumanizing on a much deeper level than the sort of legal ordeals and euphemistic language affecting the surrogates. At the end of the day, a surrogate still has the right to have her case heard in court, the right to legal representation. The unborn have no such right.
Prostitution has commonized the idea of selling one’s body, so as to make surrogacy a familiar concept, but abortion has set the bioethical precedent for the entire surrogacy industry. An unborn baby has little to no legal protection, depending on the state it lives in. If an innocent unborn baby can be terminated for no reason other than the mother’s wishes, then why would it not also be up for purchase?
I Commission Human Life, and End It
Our blanket denial of protection to the unborn allows for an array of unethical decisions in surrogacy arrangements. Chrissy Teigen, for instance, made it known publicly that she chose to implant one of her female embryos, presumably discarding the others. If you can select the sex of your baby in IVF, and abortion is legal, why would you not also be entitled to terminate a pregnancy if you changed your mind and desired a baby of the other sex instead?
The entire concept of surrogacy is based on the dangerously seductive lie, all too common in the West, that says “you can have it all.” If you can’t get pregnant yourself, no matter; if you are single and don’t have a partner to make a baby with, no matter; if you are a gay couple, no matter. If you simply have the funds and want to avoid the emotional and career stress of doing it yourself, why not? For all of these scenarios, surrogacy presents itself as the ultimate solution.
The controlled scenario, including the selection of donor sperm or eggs and a surrogate, impresses on the commissioning parties the idea that this is the perfect arrangement with an ideal outcome. How much more likely are baby purchasers to end the lives of the babies they commissioned when they discover more embryos began developing successfully than they originally intended? Or when the doctor reports complications, especially when the baby purchasers are not carrying the baby in their own stomach, feeling its kicks, making that primal connection with their offspring?
As Heather, a gestational surrogate, explained in “Breeders,” her second surrogate pregnancy took a dark turn when they discovered part of the baby’s brain was missing. The mother-to-be immediately left the doctor’s office without a word to the surrogate, visibly upset. It took weeks for the couple to finally decide they wanted to keep their baby, only days before the state’s 23-week cutoff date for abortion.
Consequences Beyond ‘Two Consenting Adults’
Strangely, while many social conservatives and the public in general think negatively of prostitution, surrogacy is often seen as an unorthodox, but nice, compassionate thing to do. Yet surrogacy is ethically compromising on multiple levels, affecting multiple parties for the long term—not just the parents, often desperate to have a child of their own flesh and blood, and the women who sells her body as the “breeder,” but the end product the whole arrangement is centered on: a child. This child has no representation, no voice in the matter. He or she is the product of a contract consisting of a purely physical service rendered for money.
Jessica, who was a product of surrogacy, explained: “As much as I do believe that surrogacy can come from a compassionate place, as a product of surrogacy, it’s hard not to be aware that there is a price tag…there is an awareness that, you know, in essence, you were bought.” Cook’s lawyer, Harold Cassidy, put it more bluntly: “You can doctor this up, you can play word games with it, but this is simply and purely the sale of a child.”
According to Nancy Verrier, a family therapist interviewed in “Breeders,” “The baby is hurt by the separation, by the loss, of that mother that it knows.” She goes on to decry the monetary exchange common in surrogacy, saying, “You’re making the babies into commodities. You could almost say it’s a form of slavery or something, you know. Buying and selling them.”
What is more, consider the egg and sperm donors commonly used in surrogacy arrangements. As with the case of Cook’s triplets, these babies are, as far as we can tell, designed to be brought up by a single father without knowing their biological mother. The anxiety, the feelings of being cheated, that come from having an anonymous parent are well documented.
The prospect of having dozens, perhaps hundreds, of unknown siblings out there in the world is also unsettling and unnatural. Yet this is part and parcel of third-party reproduction.
But the consequences of surrogacy extend even beyond the commissioning parent(s), the surrogate, and the baby. Surrogates who already have children are often preferred because they have proven they can successfully carry a baby to term. What is the impact on these children, who see their mother’s growing belly, and are told a baby is growing inside, just like they did? This matters particularly in the case of traditional surrogates, who are the biological mother of the baby. How are the children affected emotionally and psychologically, knowing their baby brother or sister won’t grow up with them?
The Child’s Best Interests Are Most Important
In possibly the most famous surrogacy case to go to court, the Baby M case in New Jersey, the courts made a final custody decision not on the state laws, or the contract (which was ruled unenforceable), but on the best interest of the child. The court discussed at length what the social and physiological impact to the child could be if she were separated from her birth mother, but ultimately decided the baby was better off with the Sterns, the couple who contracted the traditional surrogate to produce the biological offspring of Mr. Stern.
Verrier calls that separation “the primal wound,” which results in both parties feeling as if something is missing. The effects of separation are quite tangible. Tanya, the traditional surrogate interviewed in “Breeders,” testified to the negative effect of the separation. After spending five days with the birth mother, her baby immediately became colicky when taken away, crying endlessly and not sleeping through the night. When Tanya came to visit two months later, the baby felt immediately comfortable in the birth mother’s arms, easily falling asleep.
Tanya recalls of a conversation she had with the daughter she had given away, then just five years old, about the similarities and differences in appearance between her and her mother. Noting that her other children did not resemble their mother nearly as much as herself, “as sweet as can be,” she said, “But we look alike, Mom. We have the same hair, and we have the same eyes. Why did you give me away?”
Rejecting the Natural Family
Ultimately, the lesson should be that when we boldly march across the boundaries of the natural family into “convenience” and “options,” we entangle ourselves in a whole new world of ethical and legal problems—the former begetting the latter, as is so often the case.
Bucking the international trend against surrogacy (Thailand, Mexico, and Nepal are also working to limit the international surrogacy trade), most U.S. states allow surrogacy in some form. These states should be made abundantly aware of the consequences of surrogacy and encouraged to put a moratorium on the practice.
States that currently prohibit surrogacy (Washington, New York, New Jersey, Michigan, and the District of Columbia), or view surrogacy contracts as unenforceable (Nebraska, Arizona, Indiana) should pause and think about the consequences, about these previous cases, before letting women contract their uteruses for business. The consequences are even more obvious and unavoidable than with prostitution. Abortion? Multiple babies, possibly separated at birth? Children designed to be without their mothers and fathers?
In egg and sperm donation, but especially in surrogacy, lie real, tangible negative consequences for real human beings. Let’s not kid ourselves. These aren’t the new conveniences and expanded array of choices of the modern first world. This isn’t the bold new future of procreation. This is a new kind of nightmare science fiction has warned us about.
The family landscape is already in drought. Its vegetation is sparse and the ground is parched. Family breakdown is well-known as a societal ill, yet we rejoice in the idea that “love” defines the family, as the ground underneath us is split open, spitting a network of cracks outward across the barren terrain. IVF and the surrogacy that enables it expands a generational rift among parents and their children through anonymity of the biological parents and the sale of new babies, cracking, weakening the blood ties, the intimacy and commitment, that serve as the foundation of the family.
Although blood isn’t everything, it is hard to miss the truth rippling underneath the shiny facade of third-party reproduction: there are children out there, unwanted, abused, or orphaned, who need homes. The desire for a child of your own flesh and blood is real, and healthy. But if one is unable to deliver a baby, even with fertility treatment, is it fair to pursue that dream, accepting the risks, the exploitation, the anonymity of donors, the bare fact that you are buying your child, at the expense of another baby who already exists and needs a stable, loving home?
This isn’t an armchair debate, or an intellectual exercise in determining what’s right when the consequences are minimal, or too far into the future to know for certain what the impact will be (as one could argue for gene editing, for instance). The West’s new definition of family as “love,” and equating all arrangements (voluntary single parenthood, gay couples, polygamy, etc.) gives new demand and validation to the industry of third-party reproduction.
Surrogate women are dehumanized and exploited by the process, but as with all rebellions against the organic family—gay marriage, transgenderism, polyamory—our new “choices” harm the most vulnerable: the children.