TABLE OF CONTENTS
Isn't This Just Like Adoption? (here)
Egg Donors (and Sperm Donors) (here)
Surrogate Mothers (here)
The Children Born (here)
The Law and Surrogacy (here)
The LDS Stance (here)
Policy Recommendations (here)
“They want to pretend I don’t exist.”
--Heather, a gestational surrogate mother
When you know that a huge part of the reason that you came into the world is due solely to a paycheck, and that after being paid you are disposable, given away and never thought of again, it impacts how you view yourself. As a product of surrogacy, when I express this viewpoint to others, I am told, look how much your parents wanted you, they planned and saved to have you. You should be grateful and thankful for them. But at the end of the day, the adults were looking out for themselves, and what they needed and wanted.
--Jessica Kern, a self-identified “product” of surrogacy
But to be safe, Mr. Huang said, the company hires women to visit every day to make sure the surrogate does not form emotional attachments to the baby they are carrying, a common development. “Our liaison staff tells them every day that the baby in your stomach isn’t your baby,” Mr. Huang said.
“A child without a mother; that’s a bit sad.” –Karl Lagarfeld
The LDS worldview is sometimes so different from that of mainstream American culture that it engenders a chuckle. In the presidential last election cycle (2012), while the media was coping with the novelty of a Mormon Republican nominee for president, the factoid that one of this candidate’s sons had had a child through surrogacy during the campaign was reportable but unremarkable in contemporary US culture. In the LDS world, however, that was actually a bombshell. A scion of a prominent, umpty-umphth generation Mormon family, whose father had been a stake president, had a child through a means that the Church, as articulated in the official Church Handbook, “strongly discourages.”
While this anecdote might offer an occasion for reflection about shifting mores among Church members, this essay instead outlines possible reasons why the Church might be justified in strongly discouraging the practice of surrogacy. Indeed, one interesting recent development that has gone largely unreported in the US media is that there is a growing feminist backlash against surrogacy as being inherently degrading and exploitative of women and also of the children they bear. Indeed, Germany, Finland, France, and other countries ban surrogacy entirely for this very reason (and though typically their citizens are not prohibited from using surrogates abroad, the children may or may not be granted citizenship). In April 2011, the European Parliament adopted a resolution condemning surrogacy as exploitative of women, and as a form of human trafficking. Even “altruistic” (as versus commercial) surrogacy has been condemned by European feminist groups such as the Swedish Women’s Lobby and France’s Collectif pour Le Respect de la Personne (CoRP).
When the LDS Church and secular feminist groups agree on something, I prick up my ears. What follows is one LDS feminist’s exploration of the matter.
A prefatory note: infertility is a cause of great sorrow and distress, including among Church members. To my understanding, it reaches the level of one of the most painful of earthly trials, where righteous desires based on eternal truths seem devastatingly unrealizable. Even in this context, however, the Church may well be justified in strongly discouraging surrogacy as a solution for infertility, especially given the strong and consistent doctrine that no blessing will be withheld from the faithful in the eternities.
Let’s begin by examining introducing the arguments of one feminist, Jennifer Lahl, who opposes surrogacy. We’ll return to the voices of other feminists in a later section, and then also turn to LDS teachings in a subsequent section.
I recently had the opportunity to interview Jennifer Lahl, a representative of the NGO “Stop Surrogacy Now,” which issued a statement in March 2015 that reads in part,
“Together we affirm the deep longing that many have to be parents. Yet, as with most desires, there must be limits. Human rights provide an important marker for identifying what those limits should be. We believe that surrogacy should be stopped because it is an abuse of women’s and children’s human rights . . . No one has a right to a child, whether they are heterosexual, homosexual, or single-by-choice.”
In our interview, Lahl articulated the harm she feels comes to egg donors, surrogate mothers, and the children that are conceived thereby. She also referred me to several films produced by the Center for Bioethics and Culture, namely, Eggsploitation, Breeders, Anonymous Father’s Day, and Maggie’s Story (all available to view through Vimeo and other viewing options). I watched each and highly recommend them all to SquareTwo readers. Frankly, after watching these back-to-back, I felt as someone back in the 1850s must have felt after reading Uncle Tom’s Cabin by Harriet Beecher Stowe. I knew about surrogacy and sperm donation, but I did not Know about these things. These films helped me to see what an entire industry would desperately like to remain invisible: the heartache of the exploited, and the real harm done to them.
Lahl started out as a pediatric critical care nurse, later going back to graduate school to study bioethics, and began her advocacy in 2000. She felt strongly that there was a huge information gap concerning what we now call “third party reproduction.” Even though methods such as anonymous sperm donation had existed for decades, there was a noticeable scientific silence about these things. There were no studies of men who had donated their sperm; the donors were not followed over time. Ditto for the children produced by this method. The same can now be said of more recent methods of egg donation and surrogacy: there is almost a studied refusal to study these phenomena and track the health and psychological consequences to the egg donors and surrogate mothers—and the children brought into the world in this fashion.
If nothing else, Lahl wants to start a conversation that will lead to such studies. The dominant narrative about third party reproduction is that this is an angelic endeavor; that egg donors and surrogate mothers are blessed saints and unselfish altruists willing to help those who want a child but cannot have one through natural means. But there is another narrative we do not hear, summed up by one former surrogate mother who, when called an angel, fired back, “How dare you! This is patriarchal BS. I am so sick of hearing all this angel/hero crap!”
So let’s dig into this issue in greater detail. I will weave in observations by Jennifer Lahl and her films, but also expand to examine the online voices of those born by third party reproduction, as well as lawyers, feminist activists, egg donors, sperm donors, surrogate mothers, and many others. In addition, we will also examine two books that take complementary approaches to the discussion. The first is Wombs in Labor: Transnational Commercial Surrogacy in India by Amrita Pande, an ethnography of surrogacy-for-hire in India, and the second is a philosophical analysis, Being and Being Bought: Prostitution, Surrogacy, and the Split Self by Swedish author Kajsa Ekis Ekman.
ISN’T THIS JUST LIKE ADOPTION?
Since the purpose of this essay is to investigate a practice that has been purposefully obscured, it’s important to distinguish between adoption and third party reproduction. The narrative surrounding surrogacy echoes in noteworthy respects the narrative on adoption. So, for example, we are told that no matter the circumstances of one’s birth, the adoptive/intended parents very much wanted the child, and so all is well, and that biological ties are, in the end, not determinative of family.
On one level, there is some truth to that equation. Both adoption and third party reproduction generally involve desire by the adoptive/intended parents to parent the child in question. There is, hopefully, anticipatory commitment to care for and love the arriving child by these receiving parents.
However, there is also in this narrative some recognition that the normal expectations of a child will not be met. A child normally expects to be raised by his or her biological parents. Indeed, this right is enshrined in the Convention on the Rights of the Child (CRC), which states in Article 7 § 1, “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.” While “parent” is not defined by the CRC, biological parents are surely the largest subset of what could possibly be meant by the term.
We would not have to make the argument that as long as the adoptive/intended parents commit to and love the child all is well, unless we understood that these dashed first expectations in life can wound the child. If there was no wound, we would not have to narrate that all has become well because of the love of these other parents. And if we admit there is a wound, we also simultaneously admit that biological ties do matter in some way to a person’s identity. (In fact, many couple using a surrogate mother will attempt to use their own eggs or sperm in an attempt to create that biological tie.)
There is no doubt that adoption is based on a wound—on pain. My husband and I adopted two of our children, and I can tell you firsthand that even though I know they are safe, loved, educated, with all their temporal needs met in my family, that we all wish that these mothers could have kept their darlings themselves—even if that meant those darlings never came to us. But we are satisfied that the situations these mothers found themselves in were beyond their making, and that these mothers genuinely felt that although they wanted to keep their child, circumstances prevented them from doing so. In such cases, it is love for the child that leads them to make this terrible choice to have another raise their child. And as many an adoptive parent knows, the children are not spared heartache from this decision, despite the love behind it. They may, as they grow, feel unwanted, somehow deficient, and “genealogically bewildered.” Some authors feel that what has been inflicted in adoption is nothing less than a “primal wound.”
In this light, adoption is the choice to try and make lemonade out of some serious lemons for everyone involved. Only a commitment to the best interests of the innocent child could cause one to drink that bitter cup. At adoption’s core is the hope that good can eventually come from the suffering of innocents, to include the triad of the birthmother who feels she cannot keep her child, the child, and the adoptive parents who suffer in response to this suffering. You would not wish this heart-rending suffering on your worst enemy—it is only undertaken by cruelest necessity.
Thus what makes third party reproduction unlike adoption in a moral sense is that there is at least one party in third party reproduction who does in fact wish that type of innocent suffering to occur. In fact, that party is willing to pay good money to create that suffering for innocent others—to purposefully create suffering for others that otherwise would never exist.
We can understand why some feminist philosophers believe they’ve seen this line before—“If I pay hard cash, then I haven’t wronged you.” Ekman puts it baldly: “Surrogacy can be seen as an extended form of prostitution.” (141) She asks, “How can we justify a situation in which wealthy people use poor people as breeders, inject them full of hormones, take children away from them, and leave pocket money in exchange?” (150) We can only justify it in the same way we justify prostitution—after all, you aren’t paying a prostitute for sex; you are paying her to go away after sex and make no further claim on you. You are paying for her absence from your life. You are paying for the right to deeply wrong her without consequence. Seen in this light, adoption and surrogacy are vastly different practices, with vastly different moral and ethical implications.
Let’s take a look at the wrong that money buys in the case of third party reproduction . . .
EGG DONORS (AND SPERM DONORS)
Sperm donors and egg donors are given little thought in the moral calculus of third party reproduction. I suspect this is because the male perspective dominates our thinking on most matters, and donating sperm is nothing at all like donating eggs. Artificial insemination by donated human sperm has been around since the 1700s, I’m told. But the theme of men not caring what happens with their sperm as long as they get to pleasurably ejaculate it is not limited to sperm donation. The narrative of men “sowing their wild oats” is as old as human history. So much heartache has been visited on women and children because men pleasurably ejaculated and then went on their merry way, whether paying cash for the opportunity or just taking it through rape or deceit. Thus sperm donation can become kind of an “in-group” joke: gosh, you can actually get paid for commitment-less ejaculation! What a great scheme! As one sperm donor with deep regrets puts it, “[S]perm donation is not some great and noble act. It is not. On the contrary: [it is] male irresponsibility with regard to procreation conveniently elevated by the medical profession to the level of a praised social institution.”
Of course, there are many motives involved in anonymous sperm donation. Payment is certainly one; others might evince a more altruistic motivation. Still other young men—particularly medical residents—may be required to donate sperm to the fertility clinics of their hospitals whose income is a sizeable percentage of overall revenues. These young men may have had little say in the matter. As Lahl explains, “They were in medical schools that had fertility clinics that provided a lot of funding for the school. Every two weeks they’d have to produce a sperm sample for the fertility clinic. Those donations marked that man, and marked his marriage and marked his own children (there are brothers and sisters out there).”
While men suffer no consequences to their physical health from sperm donation (unlike egg donors), some men do suffer psychological consequences, often many years later. Because there have been no large-N studies performed, we cannot say what percentage of men wind up wondering about—even caring for—the children they have sired that they chose never to know. One former sperm donor put it this way,
"I was 18, in college, drinking beer and chasing girls. At the time, I didn’t think much (or at all) about the consequences of being a sperm donor. The ladies at the bank were very pleasant — always reminding me what a generous gift I was giving to those who couldn’t conceive. I’m a little older, perhaps a little wiser, but as I see baby after baby being listed on DSR [Donor Sibling Registray], I feel disconcerted. What do I make of all this? I always had a vague notion there might be a person conceived as a result of my donations, but, after reading the emotional stories on this site, how do I handle the fact that there are dozens (or hundreds) of children out there with my DNA. Will they search out for me? Want to meet me? Will they resent me for a decision born out of youthful ignorance, so I could tell my buddies about my “kick-ass swimmers”? How involved might our lives be? Should I remain anonymous and simply keep my medical history updated? Or should I brace myself to one day be sending out 80 Christmas cards to biological children I didn’t raise and don’t know. Is there some sort of middle ground? After I graduated, I moved on, to a different city and a different lifestyle. And while I may have quietly moved on, I see now the decisions I made remain very much permanent in consequence. At the time I wasn’t thinking; now I don’t know what to make of what I’m feeling."
Another former sperm donor expressed his view in these words:
"Yes, it is true: I never held those children in my arms when they were just born as I did with the three daughters of my first marriage. And yes, it is true: I never felt the pain and anguish such as young mothers felt when their babies were wrenched from them into adoption leaving them with a lifetime of sorrow. But this does not mean that I cannot feel cheated, and at times even angry, that - even though I cannot deny my utter responsibility in choosing to donate - I may never get to meet those three remaining young women who are just as much my daughters as those I raised. Just like some donor-conceived adults of my acquaintance, I am sometimes struck by a passing person in the street or elsewhere, by a fleeting resemblance, by a flash of recognition. And I wonder . . . "
Many of the same feelings attend egg donation, as well, as former egg donor Katie O’Reilly narrates,
"I guess I’d imagined they’d keep me posted on the “miracle” I helped facilitate. But after taking what it needed from me and issuing that check, the agency all but formally terminated our relationship. There were no more calls, no follow-up — no more love letters to “angel donor Katie.”
"I don’t think I fully felt the sting of this spurn until a few months had passed. I sent the agency an email, desperate to find out how everybody was faring. Within three terse lines, I learned that “my” birth mother had become pregnant with triplets, but had miscarried two of them.
"I was devastated. In fact I started bawling at my desk at work and ended up leaving, mumbling lies out the door about a terrible fight with my sister. Once home, I wrote the agency back, a sad, meek missive. I expressed my sorrow, and asked my formerly friendly contacts to please do me the favor of letting me know if and when the final baby made it. I felt like a sad, needy ex."
But for Katie, the consequences were not strictly emotional; as she discovered to her dismay, there are serious and seriously understudied negative health effects that attend egg donation.
“Out of the blue, my breasts sprouted fibroid tumors that required biopsy. A few months later, my gall bladder became distended and infected. During the related ultrasound — my first since [the egg donation] — the techs discovered that my fallopian tubes are covered in endometrial scar tissue. In the five years since donating, my Pap smears have been consistently abnormal. But doctors just chalk it all up to “one of those things that can just happen . . . anytime I verbally raise the question of whether injecting myself with maximal amounts of fertility drugs during the time in life when I was likely at the peak of my natural fertility might have compromised my reproductive system, medical professionals are quick to tell me there’s zero way of knowing whether assisted reproduction could be any sort of culprit. I’ve researched online, and I’ve consulted with fellow egg donors. The response is fairly consistent: “There is no medical evidence of any long-term health risks. IVF and egg donation do not increase an egg donor’s risk for ovarian cancer, breast cancer, or infertility.” Still, it’s hard to believe that all of my health problems are just a coincidence.” (same link as above)
Alexandra, another former egg donor, sums up her experience in this way (though her full story is well worth contemplation:
“As a result of selling my eggs, I survived a torsioned ovary, intestinal failure, and a body cavity infection. I have also survived breast cancer, including having both of my breasts cut off, and eighteen months of harrowing chemotherapy and radiation treatments. I am grateful to be alive, but I believe that all of this could have been avoided if I had not sold my eggs – a procedure that I thought was safe. We native Kansans live proudly by our state motto, Ad astra per aspera. Although I survived, I believe that I suffered this adversity needlessly, and I hope that other women will not suffer as I did.
"A registry of donors, including frequency of complications, would have led me to make a more informed choice. I fear that right now a young student at KU or Kansas State or another of our fine Universities is considering selling her eggs. She will not be provided with any real numbers about the risks she faces. Only long-term tracking and studies can adequately address cancer risk from egg donation. Most women who get cancer after selling their eggs will not be diagnosed for several or many years later – longer than the three to five years of data in most research studies. For example, my cancer diagnosis and my history as an egg donor do not appear in any medical literature or statistics about egg donor outcomes.
"My mother, who rushed to my side when I was sick, sometimes cries that I sold her grandchildren away. She bemoans that I almost lost my life not once, but twice – all for only $2,750. I think about how eager I was to move close to my boyfriend-turned-husband, and how selling my eggs has jeopardized our future together, and the possibility of having our own children. It caused me to have both of my breasts cut off, which affects my young marriage and my sense of femininity. I realize now how vulnerable I was when I was poor, frustrated, lonely, and trying to finish my education. Every day I have to live with the consequences of this stupid, ill-informed decision I made when I was 29. Eliminating the financial compensation for human eggs will spare other women from my fate.”
Alexandra points out something noteworthy: no registry is kept of women who have donated their eggs so that their health could be tracked and compared to the health of women who have not donated eggs. As a result, we have no empirical foundation to assert that egg donation is harmless. After all, what these women undergo is pretty intensive and life-altering medical intervention; Jennifer Lahl explained that the process involves
1) inducing menopause to allow chemical control of ovulation by the physicians. (The drug Lupon is used off-label.)
2) super ovulation is then induced by other drugs/hormones.
3) an injection is given at the right time to release the eggs
4) minor surgery is then undertaken to retrieve the eggs—a needle is threaded through vagina to aspirate them by suction.
The film Eggsploitation shows how at each of theses steps, health risks are present, including OHSS (ovarian hyperstimulation syndrome), strokes, torsioned ovary/intestines, cancer; and from the retrieval surgery itself, perforated bladder or bowel, hemorrhage, pulmonary infarct, and so forth. Lahl rightly asks, “Are we fulfilling one woman’s dream at the expense of another women’s health or life?” Or fertility?
And the long-lasting effects are not purely physical. As one anonymous former egg donor recounted,
“When I was in college, I decided do egg donation as a way to make some extra money. A clinic in my county offered $3,500 to women like myself to donate their eggs and $3,500 was a LOT of money for a college student back in the ’90s. It’s a lot of money now, in fact.
“Even though I signed up to be an egg donor, I never considered that the fact that if my eggs were used, I would have children walking around in the world and that they may want to know me until a young woman claiming to be my daughter called my home last year. My husband answered the phone and immediately hung up, thinking it was a prank call. I returned the call the next day, once my husband had left for work and the kids had gone to school.
“The woman had as much information as she’d been allowed to gather, including the name of the clinic her parents had used. She told me that she wanted to meet me and that she considered me to be her mother. I told her I needed a day or two to think about everything. That was in October 2013. It’s now July 2014 and I’ve not called her back since.
“I haven’t intentionally ignored her these past few months. I just can’t bring myself to face her, even over the phone. I’ve started dozens of letters to my daughter but I can never bring myself to mail them. Everything I have to say to her to justify or explain my actions sounds so utterly lame that I feel ashamed. She’s my daughter and I abandoned her. I sold her for money. And she suffered greatly for it. How do you even begin to apologize for that? You can’t.
“The thought that I may have more children out there fills me with anxiety to the point that I have panic attacks. I’ve had to be put on Xanax to deal with them. If I knew back then what I knew now, I never would have gone through with the donation.
Another egg donor had similar painful regrets:
“I’ve never even shared the “marriage act” with anyone else other than him – yet I completely and willingly allowed my genes to be mixed with a stranger and someone else to be the father to my biological offspring.
“It just hit me very hard and I didn’t know how to handle these new regretful feelings about my donations. When I originally did them, I honestly and completely did them with sincerity and I fully thought that I was doing the right thing. All throughout my donations, I was told that what I was doing was so noble, and I believed that. I went through a psychological evaluation before being able to donate and was cleared for being in the right mindset to donate. I must have given all the right answers, because at the time, those were all the right answers that I had read and been led to believe were my own as well.
“It is very difficult for me to now admit that I regret doing my donations. I regret that I have biological offspring with men I don’t know. That I have children out there that I don’t know. I can’t say that I regret having created lives, because I mean, how could anyone say that? I don’t regret that. But I do regret how it happened.”
The next time you hear sperm donation and egg donation referred to in a cavalier fashion, remember that there are truths hidden from our view—truths concerning emotional distress and physical harm in the context of a complete absence of tracking of donors—that should bring pause. Governor Jerry Brown of California, certainly no conservative, perhaps put it best when in 2013 he vetoed a bill allowing the sale of eggs for scientific research in that state, “"Not everything in life is for sale, nor should it be . . . The long-term risks are not adequately known. Putting thousands of dollars on the table only compounds the problem."
If it is possible, the stories of the harm to “surrogate mothers” from third party reproduction are in some respects even more heart-breaking than the stories of the sperm and egg donors, possibly because unlike egg/sperm donation, surrogacy involves the intentional rupturing of a very real mother-child bond formed during pregnancy and childbirth. What is lost is not some child-in-the-abstract, as it is with egg/sperm donation: what is lost is a real child, a child of one’s own body, a child whose heart beat with your own, a child whose cells will circulate in your own body for the rest of your life, a child who has been indelibly shaped epigenetically by living within your body for nine months.
Surrogacy is illegal in many countries, including many in Europe, as mentioned previously. But there are countries where lack of regulation creates an environment of laissez-faire. India has the largest number of surrogate mothers (though new laws in 2015 will deny surrogacy services to all foreigners), followed by the United States. Business is booming, with the $400 million Indian surrogacy industry increasing by 20% annually. While in the United States a small percentage of surrogate pregnancies are considered “altruistic,” most are first and foremost commercial transactions where the monetary incentive is undeniably important. Even so, as Ekman notes, surrogacy “is not particularly lucrative. An American surrogate earns less than $1.50 per hour, and her Indian sisters earn barely half as much.” (Ekman: 165) Other sources indicate Indian surrogates are paid one-third or even less than that of American surrogates.
Narratives of self-sacrifice typically accompany the surrogacy industry; as one intended father said of the surrogate being contracted, “She was very clear that she knew how she was giving us the greatest gift that anybody in our lives had ever given us. She felt good, virtuous, generous, magnanimous, and kind-hearted about what she was doing. She was also clearly doing it because there was a financial incentive involved. So I wouldn’t want to say it was only for the money, but she probably wouldn’t have done it if it weren’t for the money.” As one commentator put it about Indian surrogacy, “While in many cases, surrogacy may not be a woman’s first choice, it does allow her to give an incredible service to another family while often making more money than she could in a decade.”
And that type of money can have distorting effects; as another writer expressed, “There have been reports of surrogates who have been coerced into these procedures by their husbands.” Priya, a surrogate mother in Bangalore, states, “I can tell you that I desperately needed the 300,000 rupees I got, as my husband had a lot of loans to clear off. And I am happy I got it in a mere 10 months.” Troublingly, many of the Indian surrogates are illiterate: Al-Jazeera reports that “A 2013 study conducted by the nonprofit Centre for Social Research found that 88 percent of surrogate mothers interviewed in Delhi and 76 percent in Mumbai did not know the terms of their contract. In fact, 92 percent of those in Delhi did not even have a copy of it.”
But even US surrogate mothers face some of the same challenges. Poverty and need are the driving force for many. The NYT’s article “Making Babies, Just to Make Ends Meet,” tells the story of “C”:
“I’ve seen neighbors come and go, and I hope C stays forever. She was married at 16 years old, and she had two daughters before her husband was murdered. She married again, had three more children, and then that husband was convicted of a crime she can barely bring herself to mention to me. He’s in prison “forever, I hope.” Now she’s married to F, who came to California 20 years ago from El Salvador. He works at an oil refinery, she works hourly assignments as a surgical tech, and last summer he had to sell his beloved motorcycle from my front yard for $600 so they could pay the utilities bill that went so high because of August heat. Until last summer, I hadn’t realized the way she pulls through is surrogacy. . . . She made $30,000 for the first baby and $50,000 for the second one; if she delivered this girl, she would get $35,000. . . . She was thinking of doing one more baby, she said. “I want to buy a house. I don’t want to rent anymore. It’s the only way to get a down payment.”
Not surprisingly, journalists have found that military wives are common targets of surrogacy recruiters, comprising an astonishingly disproportionate percentage of US surrogate mothers. Why? As one writer puts it, “Credit low earnings and the military lifestyle. Military wives often have difficulty finding employment; military families move around a lot, and a military wife is often tasked with keeping the homestead running while her husband is serving overseas. An extra $25,000 or so for a surrogate pregnancy can provide a serious financial boost to a family living on less than $30,000 a year — even though that works out to roughly $3 per hour for pregnancy and labor.” But the websites advertising such services by military wives have a different narrative: “Carrying a child for another couple or individual is the ultimate selfless act one can provide. It is the ultimate call of duty—military wives carrying a dream. . . Proud wives of our brave military men are sending the message of hope with surrogacy arrangements. Inspired by their husband’s strength and courage in fighting for their country, military wives are fighting for those who have not been able to build a family.”
Whether we speak of India or the United States, it’s hard not to miss the power differential at work here: well-to-do intended parents are paying poor women, sometimes in very poor developing countries, to be surrogate mothers. As Ekman notes,
“It is . . . the woman who pays who should be called ‘surrogate mother,’ because she replaces the mother who gives birth. But words mirror power: the ‘real’ mother is the one with economic resources, while the ‘false’ mother only has her own body. But in the full phrase ‘surrogate motherhood’ we have the word ‘mother,’ which weighs it down with an emotional and historical burden which requests, entreats, and encourages us to feel that she is still some type of mother. And so the displacement is hastened: the phrase ‘surrogate mother’ is shortened to ‘surrogate’ [which] moves us further away from motherhood—we don’t even have to say the word . . . The woman is called a bearer, a provider, a suitcase, an incubator, a surrogate.” (Ekman: 154-155) Ekman continues, “ On the one hand, we have wealthy people from developed countries; on the other, we have women from developing countries or women of lesser means from developed countries. The former have money and a longing for children. The latter have only their bodies—making them the proletariat in a very literal sense . . . We can see surrogacy as an attempt to regulate the traditional relationship between the proletariat and the upper classes by means of a contract. Via a contract, the economic power differential between the wealthy and the proletariat is ‘cleansed.’” (Ekman: 150-151)So what? What harm is done, as long as there is consent and money changes hands? Ah, that’s just what is said about prostitution, isn’t it? That should be a tip-off that all is not as sunny as it may appear. Let’s first look at physical ramifications of surrogacy, and then emotional harm.
One good place to start is to realize what a surrogate agrees to when she enters into a contract for her services. Journalist Susan Ince went undercover as a prospective surrogate mother to find that she would be inseminated twice a month for six months with 2-6 eggs, during which time she could not have intercourse. There would be no compensation for miscarriages, no compensation for her time or the physical effects on her body if she failed to get pregnant. If she brought forth a stillborn child, however, there would be full compensation. She would have to agree to all medical procedures and treatments recommended by the clinic’s doctors—including bed rest (even if it means she has to quit any other employment she might have) and C-section--and in many cases the buyers have the right to demand she have an abortion if there was something amiss with the child or a “selective reduction” if there are triplets or quadruplets developing. If the surrogate refuses the abortion, she may be accused of “wrongful birth” and may have to pay the costs of raising the child. If the surrogate mother herself chose an abortion against the wishes of the purchasers of her service, she would be accused of breaking the contract and have to pay substantial damages.
It is important to realize that the clinic’s lawyers represent the clinic and the intended parents—if Ince wanted a lawyer to represent her own interests, she’d have to hire one herself. Ince noted that the psychological testing she was given seemed more designed to “see if [we] can be counted on being tractable about giving up the child” rather than to see if the prospective surrogate mothers are psychologically stable. (Ekman: 164-165). Unlike in the past, when “traditional” surrogate mothers provided both eggs and womb, contemporary surrogate mothers typically no longer provide their own eggs. Sometimes this is because the child would the not be the correct race or phenotype for the buyers, but more importantly this is because of messy custody cases such as the infamous Baby M case where the mother changed her mind about giving up what was in all respects her biological child. Contemporary surrogate mothers are told that since they have no “biological connection” to the child (i.e., they contributed no egg), despite the fact the child is growing inside their body, they have no legal standing to contest custody. (A very few states, such as Indiana and Michigan, dissent from this mindset, and declare all surrogacy contracts unenforceable, thereby giving a surrogate mother the right to contest custody. Even in India, surrogate mothers have at times contested custody. More on this in a later section.) All in all, the prospective surrogate mother is entering into a contract that will govern the very minutest details of her life and health day in and day out, 24/7. (And it should be noted that in India, the surrogate mother will be required to move away from her existing children to live in a dormitory where she can be monitored, adding a layer of prolonged maternal absence for her own children.)
And that means that besides the usual physical risks of pregnancy and childbirth, which are still considerable, there are added risks. The first risk is that in addition to the lawyer involved, the ob/gyn involved is also not working for the surrogate mother, but for the clinic and the intended parents. What is unsaid but implicit is that the health and life of the surrogate mother is secondary to that of the fetus. As an investigative report by The Guardian notes, “Most mothers sign contracts agreeing that even if they are seriously injured during the later stages of pregnancy, or suffer any life-threatening illness, they will be "sustained with life-support equipment" to protect the foetus. Further, they usually agree to assume all medical, financial and psychological risks – releasing the genetic parents, their lawyers, the doctors and all other professionals from all liabilities.” The Guardian tells the story of Indian surrogate mother Premila Veghela, who died waiting for a routine examination. According to the doctor, “Since she was showing signs of distress, we conducted an emergency caesarean section delivery." The child, born a month premature, was moved to a NICU. The surrogate mother was moved to another hospital, where she died of cardiac arrest. In another troubling case, American surrogate mother Carrie Matthews, carrying twins for an Austrian couple in 2011, had to be rushed into to surgery a few hours after giving birth by C-section. The couple flew back to Europe, leaving Matthews with $217,000 in medical bills. As one director of an Indian NGO put it, “In this business, the baby is the product. The surrogate is the means of production. Even those who care for the surrogate do so until the product is delivered . . . The surrogate is waste material for them after the delivery.”
In addition, since multiple embryos are typically implanted, selective reduction of embryos--which procedure carries risks to the mother and is thus frowned on by the medical community--is often performed. Selective reduction, usually performed in the first but also sometimes in the second trimester, typically is effected by means of transcervical aspiration and transabdominal needling of the embryo using ultrasound for guidance. Medical manipulation of the surrogate mothers’ pregnancy is not limited to selective reduction. For example, almost all Indian surrogate mothers are required to undergo C-section delivery, even in cases where a vaginal delivery would be unproblematic. One doctor at an Indian clinic explained, “There is a higher chance of cesarean since it’s a precious baby. Firstly, just the chances that a woman will get pregnant at all with someone else’s child is do low, just 40 percent. On top of that, there are much higher chances of miscarriages in artificial birth. So once a surrogate does reach her last trimester successfully, we don’t take any chances at the delivery stage and at the first warning signal we go for a cesarean.” (Pande, 117). Actually, C-section may be performed as standard procedure in all cases of surrogacy in India, even if there are no health issues.
Ramya, a surrogate mother in India, related her experience: “I don’t ever want anyone else to go through this. It’s not child’s play. It’s very painful—the medicines, the injections, and now this scissor (C-section). It’s not like there can’t be normal [vaginal] deliveries in this process, but they [the doctor and the intended parents] don’t want to take any risk. The child is most important, not our bodies. But I cannot complain. Nature gave me a healthy body. I decided to let others cut it apart.” (Pande, 117)
C-sections carry a substantially higher risk of maternal morbidity and mortality: this is major surgery for the mother. Repeated C-sections, as these Indian surrogate mothers undergo, heighten the risk of uterine rupture and other conditions such as future placenta previa, as well as possibly jeopardizing their future fertility. There is simply a limit to the number of C-sections a woman’s body can safely undergo. Sharda, yet another Indian surrogate mother, described her situation in this manner: “They made me have a scissor [C-section]. I told them my first two children were normal, why do I need an operation now? I have lost so much blood. Ask my husband, he will tell you. I have become half my size. Just one surrogacy has done this to me. I know we will need more money again, but I am not sure I will be able to survive another one.” (Pande, 148)
For foreign intended parents, the timing of the birth is often artificially adjusted to coincide with their flight plans. Rita, another surrogate mother in India, explained, “I starting having pains almost 15 days ahead of time but they gave me injections to let the pain subside. The doctors put me on some drugs because they wanted the delivery to happen only once the couple came down from America.” (Pande, 119)
While the physical risks are significant, I am persuaded that they pale in comparison with the emotional harm done to these surrogate mothers (the harm to the children they contractually bear will be explored in the next section).
One source of emotional harm comes from the purchasing parents reneging on their agreement to take the child. The famous “Baby Gammy” case of 2014 is a case in point, where the child, born to a Thai surrogate mother, was abandoned in Thailand by his Australian intended parents once they learned he had Down Syndrome—though the parents took his non-DS fraternal twin sister Pipah home with them. The Thai surrogate is now left to raise Baby Gammy by herself because under Thai law she is regarded as the legal mother. To add an additional layer of horror to an already horrifying story, the “father” of Baby Gammy and Pipah is a convicted child sex offender. Lest the reader believe this type of behavior is only happening in rare cases of medical problems, 2014 also saw another case of abandonment by intended parents from Australia, where twins were born, one male and one female, and the intended parents refused to bring home the twin whose sex they did not desire. The intended parents apparently sold the unwanted twin before departing back to Australia.
These types of cases do not only happen abroad—they also happen here in the United States. The story of surrogate mother Heather Rice in the US was chronicled by the New York Times in 2014: over half way through a surrogate pregnancy, an ultrasound showed a cleft in the fetus’ brain. Rice recounts,
“Mom [the would-be adoptive mom--ed.] walked out of the room, left me lying there, and I thought: ‘This is not my baby. I should not be dealing with this by myself,' ” she said. “But I told Mom, ‘I’ll respect your decision, whatever you decide, because this is your baby.’ A couple days later, they called and told me they didn’t want their little boy so I should get an abortion.”
With only days left before an abortion would become illegal under Arizona law, Ms. Rice found herself unwilling to kill the fetus.
“I think my motherly instincts kicked in when they didn’t want him,” she said. “I told them I just couldn’t do it. Dad told me God was going to punish me for disobeying them.”
Ms. Rice found a woman whose child had the same condition who wanted the baby. And on the 28-week ultrasound, the brain looked somewhat better. When Ms. Rice called and told the intended parents that someone would take the baby, they said they had decided they wanted him after all. At the delivery, though, the mother did not show up.
“When I called, she said Dad had been in the waiting room all night,” Ms. Rice said. “I was crying. I said he has to come in; he’s the father; he should be here. He came in, he cut the cord. He took the baby. And that’s the last I ever heard from them.”
Ms. Rice said she had no idea how the baby was doing, or even whether his biological parents had kept him.
“I found them on Facebook, and there’s no trace of him, so I think they gave him up for adoption,” she said. “I don’t know where he is, and it kills me every day.”
Probably the most horrifying story, however, is that of the US man, James Alan Austin, who hired a surrogate mother to bear his child and then beat his baby son to death at five weeks of age. Austin told authorities he beat the baby with his fists and a coat hanger, resulting in a fractured skull and massive internal bleeding. The surrogate mother was notified, and flew to the hospital to be with her child—and to reclaim him if he survived. He did not, and it was left to her to bury that little boy. She had borne him in her body far, far longer than his short life on this earth, and thus, in a very real sense, knew him and loved him best. This case highlights that, unlike adoption, which demands home visits and approval by a social worker before an adoption can take place, the surrogacy industry is not required to put in place such oversight mechanisms in most of the United States.
Also overlooked is what happens to the surrogate mother’s “official” children. Since clinics prefer surrogate mothers who have already given birth, the vast majority of surrogate mothers have children living in their homes at the time of their surrogacy. As we noted, in India, the mother may be required to live apart form her children for the duration of the pregnancy, but in the US, it is typical for the mother to remain in her own home with her other children. As Lahl remarks, “they see mommy give away/sell a child. They may even appreciate the windfall—“Mom, have another baby so we can have money!” One surrogate mother, who successfully fought for visitation rights, states, ““My daughter was holding the baby . . . how on earth did I think she would be OK with this? It’s more than me; it’s more than them.” (Breeders)
Even in cases where all goes “well” and the purchasing parents care for the child, there is unspoken emotional harm done, I would argue. Ekman asks us to remember that,
“Of everyone involved in the making of a child, the birth mother has spent the most time with it. She has carried it inside her day and night for nine months. She is the one who feels the child inside her. She is the one who makes it grow from a seed into a person. She is the one who puts her life and her health on the line by giving birth to it. She is the one who risks gestational diabetes, pre-eclampsia, a Cesaerean section, and infertility. She is the one who has hormonal shifts, starts to dream differently at night, who suddenly has cravings for new foods or is disgusted by foods she used to eat. She is the one who can no longer sleep on her stomach and who feels the child kick. It is her breasts, her skin that will bear the marks of the child. The child’s navel is the eternal reminder that it was once connected to her body. Psychologist and child psychotherapist Pia Risholm Mothander writes that pregnancy is ‘one of the most complete physical transformations ever’ and that it ‘carries with it radical psychological changes that are at least as great.” (153)This complete transformation through complete connection in pregnancy cannot be gainsaid, no matter how hard the surrogacy industry tries to do just that. We can begin to see this through the expressions of surrogate mothers themselves. Here’s Divya, for example, an Indian surrogate mother:
“I talk to the child all the time,” Divya says in Hindi, touching her bulging belly in the protective gesture of pregnant women everywhere. “My mother used to say he understands you and the pain you go through. Therefore, he will bond better with you when he grows older.” A second later, she bites her lip. “I always forget he will not be with me in a few months’ time,” she says with a nervous laugh.And here’s Sharda:
“I am not sure how I feel about giving the baby away . . . When he cries I want to start crying as well. It’s hard for me not to be attached. I have felt him growing and moving inside of me. I have gone through stomach aches, back aches, and over five months of loss of appetite!” (Pande, 148)And Diksha:
“She is my first baby girl. I have two sons and I always craved for a girl. I know she looks Japanese, but I think of her as my own daughter . . . I had her with me for not just the nine months [of pregnancy], but even after that. The two months we had her with us, I pampered her, you don’t know how much! I splurged on pink clothes, matching mittens and shoes. All out of my money, not money sent by them! She was on my breast for two whole months . . . I miss my daughter, you don’t know how much.” (Pande, 149)Of course, in the eyes of the clinic, these women are all failures. They are bad surrogate mothers. Why? The “inappropriately” bonded with the child inside them. They sang to them, talked to them, loved them—as was these children’s birthright. But that birthright has been prohibited. Clinics explicitly prohibit this type of bonding: “But to be safe, Mr. Huang said, the company hires women to visit every day to make sure the surrogate does not form emotional attachments to the baby they are carrying, a common development. “Our liaison staff tells them every day that the baby in your stomach isn’t your baby,” Mr. Huang said.
In what possible world is it right to tell a mother carrying a child that she should not love that child? That to love the child is wrong and a contractual violation, to boot? Shagufta Omar, President, Pakistan Chapter of the International Muslim Women Union, asserts, “A woman is a human being not a machine . . . Disconnecting both mother and the child from each other is the violation of the human rights of both.”
The clinics’ insistence that the reality of these surrogates’ motherhood is but an illusion is deeply ironic, given contemporary advice to new mothers. As one author put it, “It is notable that, as I am having my “own” baby, it is expected that rising levels of oxytocin will not only support my labour, but help me to bond with my child. Should this not happen (and for many women it does not) I will feel a “failure” as a mother. Yet were I a surrogate, such a “failure” would make me a success.” Ekman concurs:
“In some twisted way, feminists are called to hail the idea of women not feeling anything for the children they give birth to, as if this would be a proof that motherhood is socially constructed. This is a very superficial analysis. It fails to see that what is happening in surrogacy is that the rich Western men (and women) are given the right to satisfy every sentimental whim, at the expense of the birthmothers, who are not supposed to have feelings at all, only produce and walk away. In the media, we are supposed to feel for the rich couples, suffer with their childlessness, rejoice with their happiness—nobody talks about their feelings as being socially constructed! Surrogacy is prostitution’s little sister . . .Ekman has a point. There is something deeply anti-feminist about the practice of surrogacy. Indeed, in 2015, several feminist organizations, including the Swedish Women’s Lobby, the Romanian Women’s Lobby, the CADAC, the European Women’s Lobby, and others penned a joint statement to the Hague Conference on Private International Law, in which they pointed out the nature of the human rights violation inherent in surrogacy (page 8):
“It is curious to witness on one hand, the growth of a significant literature full of encouragement of public authorities intended to validate the mother-child bond prior to delivery and, on the other hand— and in total contradiction—to the development of a discourse that, to legitimize surrogacy, argues that these bonds are insignificant and can be negated without causing damage.Planned, purposeful abandonment—which has been sought, bought, and paid for. The Indian surrogate mothers quoted above know something that our neo-liberal capitalist system does not: there is no amount of money that will buy a mother’s indifference to the child growing within her, whose cells will live in her body forever through maternal-fetal microchimerism, whose very being has been shaped epigenetically by the women who bore him. (An excellent book on the subject of the indelible effect of the uterine environment on the developing child is Origins: How the Nine Months Before Birth Shape the Rest of Our Lives by Annie Murphy Paul.) Lahl explains,
“The term “carrier” is used by agencies and supporters of surrogacy. This term is openly reductionist in suggesting that pregnancy can be reduced to the functioning of an organ—the uterus—and therefore to the mere “carrying” of the child.
“In reality, the surrogate mother not only places her uterus, but her entire body as well as her mind, at the disposal of the other party to “produce” a child intended to be relinquished at birth.
“In addition, it is well known that both biological and affective exchanges between the developing child and the mother occur throughout pregnancy. For example, studies have revealed a mother-child cellular exchange called fetomaternal microchimerism, but there is also the simple experience of the newborn baby climbing his mother’s body to seek her breast. None of this can be ignored or simply passed over in silence.
“In view of these bonds, relinquishing a child to third party commissioning couple or individual is merely programmed abandonment.
“Even if the extremely rare cases in which there is no financial compensation (for example surrogacy between close acquaintances), there is still an act of making the child available, since the child is “given.”
“Even in cases of surrogacy among close acquaintances or family members, a form of exploitation of the generosity of the woman who agrees to carry the child exists. She is potentially the object of veritable emotional blackmail. It is an illusion to imagine that power relations and/or manipulation are not factors within families and between friends.
“The child is thus submitted to a planned abandonment, since it was conceived for the purpose of being abandoned.
“In the medical world, we work very hard to get moms to bond with their babies in utero—music, talking, singing, reading, etc. But we tell gestational surrogates never to do these things! And their breasts will with milk for the baby. And there’s no firewall between a woman and the baby she is carrying. Fetal blood and stem cells enter the woman’s system. We should be encouraging these natural connections between the baby in the womb and the mother, her children who are the baby’s siblings, her husband, etc. But instead we sever all of that.” (Interview, 10 August 2015, phone)A surrogate mother is not a uterus; she is not a container. She is kin to the child she carries: the child’s cells will stay in her body forever; the child itself is marked by the all she gave him, including the indelible mark of the navel. She is a whole being, and it is this whole being that is in intimate contact with the whole being of the developing child. Pande comments on the deeply moral, deeply feminist “rebellion” of these Indian surrogate mothers who dare to love the children growing within them, saying,
“The kin ties forged with the baby and the reinterpretation of the blood tie cannot be dismissed as illiterate women’s ignorance of modern technology. The surrogates understand and recognize that they have no genetic connection with the baby, but nonetheless they emphasize the ties they have with the baby because of shared substances—blood and sometimes breastmilk. In addition, for [the surrogates interviewed), the basis for making claims on the baby is not just shared substance but the labor of bearing and breast-feeding the child. Shared substance and the labor of gestation not only confer identity to the baby but also become the bases for making legitimate claims on the baby.”
“In Recreating Motherhood: Ideology and Technology in a Patriarchal Society (1989), Barbara Katz Rothman talks about the new procreative technologies strengthening the patriarchal ideology of the genetic tie—the patriarchal focus on the seed. “And so we have women, right along with men, saying that what makes a child one’s own is the seed, the genetic tie, the “blood.” And the blood they mean is not the real blood of pregnancy and birth, not the blood of the pulsating cord, the bloody show, the blood of birth, but the metaphorical blood of the genetic tie . . . The surrogates at Armaan starkly differ from the women in Rothman’s imagery: they emphasize the real blood of pregnancy and birth and the sweat of their labor. The male actors involved in surrogacy may have provided the seed, but their kin tie with the baby is undermined because the labor, the effort put in by them in the actual process of giving birth is minimal. These kin ties not only challenge patriliny but also allow the women to reiterate their primary role in the surrogacy process . . . “ (Pande, 149, 152)
I can conceive of nothing more misogynist and anti-feminist than what is done to surrogate mothers and their children. It is more than the devaluation of motherhood—it is the attempt to erase motherhood, and to erase the women who are these children’s mothers. Mona Lisa Wallace of the National Organization of Women (NOW) hits the nail on the head: “Calling a mother a gestational carrier is a euphemistic way of dehumanizing her and taking away the relationship by removing the word “mother”.” (Breeders)
Ekman sees the brutality and misogyny behind surrogacy very clearly. Hear her strong, compelling, and important voice in the following series of quotations from her book:
“[The surrogate mother’s] function is to create this family—but she is prohibited from being part of it. What characterizes surrogacy is the requirement of an absent mother.” . . . This is always concealed in discussions about surrogacy—that it is not only a desire to raise a child, but also a demand that the mother be absent.”(134, 151).
“The woman who gives birth is never presented as the child’s mother or even a person with a background and a will of her own—she is just a kind soul, a fairy godmother, who helps the people who pay for the child get what they want.” . . . Words such as ‘whole’ and ‘complete’ are constantly repeated in this story of happy families [created through surrogacy]. But this ‘wholeness’ presupposes an absent mother. If she meets the child or takes part in the child’s upbringing, it is understood to be a division or split. It is the dream of the nuclear family—but one in which the mother is suddenly a threatening figure” (134-135).
“[S]urrogate motherhood is not about giving a child more parents; it is about keeping one of the parents away from the child” (137).
“Th[e] type of ‘feminism’ [that supports surrogacy] relies on the same assumption of the type of feminism that supports prostitution, the assumption that the woman is neither connected to her own body nor, by extension, to the child she grows in her body and gives birth to. The child [in this view] is not a part of the woman and anything that happens in her body does not happen to her, but to her body . . . Surrogacy can be seen as an extended form of prostitution . . . [others’] needs take center stage, while the woman is only the means to achieving [their] ends. Andrea Dworkin points out that the difference is that in surrogacy, it is the woman’s uterus that is sold rather than her vagina, which keeps her from being stigmatized: she is a Madonna, and not a whore” (141-142).
“[Some] philosophers want us to regard pregnancy as just like any other job. We are not to see childbirth or the womb as something ‘sacred’; we should liberate ourselves from biological prejudice and see women as the owners of their bodies. Pregnancy is a ‘service’ just like factory work or lawn mowing. To this end, they argue exactly the same way as prostitution proponents. But if pregnancy is a job—what, then, is the product? In contrast to prostitution, the product cannot be brushed aside as an abstract concept such as ‘sex.’ The produce of surrogacy is absolutely tangible—it is a newborn baby. If pregnancy is the same as working in a factory, then the child is comparable to a car or a mobile phone. The woman bears and births a child and hands the product over. At the same moment she gives up the child, she receives payment. The first thing we wonder is: Why should this not be considered human trafficking?” (144-145)
“[P]ersonal choice is confused with need: whoever requests something, no matter how specific the desire is, needs it . . If the demand goes unmet, according to [this[ logic, we have a denial of basic human rights on our hands . . . A general longing for children suddenly has been narrowed to mean that surrogacy is an absolute necessity, end of discussion. . . . But there is a huge difference between longing for a child and demanding a surrogate. The longing to have children is simply an emotion, but the demand for a surrogate is a requirement that the child’s mother never get to know the child or be present during its childhood” (151-152).
“In surrogacy, linguistic tricks are played to distance the mother from the child, to claim she doesn’t have a right to the child and that she is not the child’s mother. ‘It is simply not and has never been her child,’ . . .’Think of it as if someone’s child comes to stay at your place for nine months’ . . . ‘She was an oven,’ . . . ‘[It’s] like providing day care or nanny services,’ . . . . ‘[She is] no more than a vehicle for bearing someone else’s baby, as is common with farm animals’ . . . To illustrate the place of human origin, we are supposed to think of temporary loans and the renting of objects” (154)
Noting that one commentator has opined that the gestational surrogate has ‘no right’ to love the child growing within her, Ekman responds, “[T]he entire controversy is not about technology, but about the divorce between mother and child . . . With what ease, with what arrogance and Latinizations do these philosophers do away with physical realities and equally real emotions! This rhetorical process is an analogy to what happens in the story of the sex worker; she is not a mother is parallel to the body is not the Self. . . . Instead of talking about being a woman giving birth to a child and then, a few hours later, still in the afterpains of childbirth, having to give up custody of that child, [for these philosophers] it is about an abstraction, about cultural preconceptions, about the biological versus the social. This spares him the need to take up the burning issue of how people are affected. In fact, most texts that defend surrogacy share this trait: the physical reality is subordinated to an abstract, theoretical idea . . . In the same way as the woman in prostitution is abstracted away and becomes ‘sex,’ the birth mother is abstracted away and becomes a substitute, a ‘surrogate’” (156, 157)
Remembering that the ancient Greeks wrote of mothers as being but the soil in which the real parent—the male—plants his seed, Ekman comments, “It is striking to see how surrogacy so aptly realizes this patriarchal wishful thinking. The gestational surrogate mother is literally made into a container for the seed and a stranger to her own child. . . . The buyer does not even need to do the minimum that once was the man’s duty—no physical contact with the women is necessary. All he has to do is place an order.” (159, 160)
“Like the prostitute who says “my body is not myself,” the surrogate says “the child is not mine,” But in order to mentally construct the child as an individual of its own, an individual who furthermore belongs to someone else, the woman makes a part of herself into something that belongs to someone else . . . Now the fact that some children don’t grow up with the women who gave birth to them and call another woman ‘Mom’ is in itself nothing new. But in the surrogacy situation, the child is intended for someone else even while existing in the woman’s body. . . . Few workers would say that their hands or feet are not their own, as prostitutes or surrogates insist that parts of their bodies are not themselves. In order to see a part of herself, the surrogate, like the prostitute, must distance herself from it. Anyone familiar with prostitution who listens carefully to what the surrogate is saying will notice the many similarities between their coping strategies. But where prostitution research had put words to these emotions, surrogacy research has hardly noticed them. No one has expressed any concern about surrogate mothers dissociating. One the contrary—researchers state that this distancing is exactly what proves that surrogacy works. The best surrogate is the one who feels the least . . . In prostitution, drugs and alcohol are a form of self-medication to more easily cope with selling yourself. But the surrogate cannot numb her body. She cannot turn off her daughter’s kicks—but she must not relate to her. She cannot distance herself from her son or daughter in the same way a prostitute can distance herself from a john” (172-173, 176).
“It is just like prostitution all over again, coming back to haunt us. It is the same division of the Self and the body, person and function, mother and child, soul and sexuality. And the same fear that the two will be reunited. The division is made sacred while the unity is demonized. What everyone in surrogacy longs for [is], in actuality, a compulsory divorce. We all know it, exactly as we know when we are lying, but we convince ourselves that if everyone agrees with the lie, it becomes truth. Constantly singing the praised of surrogacy or prostitution, as some surrogates and prostitutes do, is to be constantly caught up with covering the wound. That is why all the negative stories have to be eliminated” (190)
“Thailand delivers women for having sex with. India delivers women for bearing children. The Earth is structured, literally, in man’s own image, according to man’s desires. And because the need to separate is so strong: the whore may not become pregnant, the surrogate may not have sex; women all over the world are denied their complete humanity. We are limited, imprisoned, turned off, made numb” (191)
Ekman’s, it seems to me, is the clear-eyed view of surrogacy. From the foregoing discussion of physical and psychological risks, and emotional wounds inflicted, I cannot but judge surrogacy to be one of the greatest evils this world has inflicted on women. As a scholar of global women’s issues, I do not say such a thing lightly.
THE CHILDREN BORN
But what of the children born? Surely being so loved and so wanted is all that matters to them? No doubt that is the case for a significant proportion; we honestly do not know because no studies have been done. But on the basis of the investigation made for this essay, what is also true is that there is a significant proportion of children conceived by third party reproduction (TPR) who feel deeply scarred by the manner in which they were brought into the world. For example, one survey showed that 67% of children conceived by sperm donation felt the process should not be anonymous—in other words, they wanted to find their genetic fathers. (Unless otherwise noted, most quotes/statistics in this section are from the film Anonymous Father's Day.)
Furthermore, some TPR children are very tired of hearing how grateful they should be, because they read in this is a veiled statement that they should just sit down and shut up about their feelings in the matter. One young woman brought into the world through TPR is surprised at the level of anger directed against her whenever she speaks of her feelings—she is told she should just be grateful she exists:
“We’re always told how wanted we are . . . But there is that flip side that you were abandoned by someone. Adopted kids are not created on purpose with that separation. Adoption led to sperm and egg donation because adopted kids were being told constantly that biology doesn’t matter . . . and that rhetoric led to a new belief system that said then it’s OK to create kids biologically separated from their natural parents on purpose. We had one set of language meant to protect adopted children and adoptive parents, but now that’s led to the manufacture of kids through separation.” (Anonymous Father’s Day)Another young woman states flatly, “The method of my conception is humiliating and dehumanizing . . . You are a product at the end of the day,” and a TPR-produced young man elaborates: “There was no sexual act that produced me, except masturbation.” (Anonymous Father's Day) When prodded as to how he can challenge the type of conception that led to his own birth, he says, “Can you challenge your conception? Sure—what if your mother was raped?” Ekman comments, “In surrogacy, a transaction replaces intercourse as the source of life. Commodity exchange becomes he answer to a basic existential question: why do I exist? I exist because someone paid for me.” (Ekman, 160)
And some TPR children feel this is an issue of basic human rights. “Nobody has the right to withhold significant personal information about a person from that person,” says this same young man. Egg donors, sperm donors, surrogate mothers—all of these individuals must be made known to the TPR child, in his view. To do otherwise is to cause “genealogical bewilderment,” a condition wherein there is “a feeling of isolation and alienation from past generations.”
International human rights law appears to back his view of things. As noted previously, the Convention on the Rights of the Child states explicitly: Article 7 § 1 of this convention (CRC) stipulates “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.” In the UK, Norway, Sweden, British Columbia in Canada, Australia, and New Zealand, there are no anonymous sperm or egg donations. And in Sweden, there is a central registry where you can go to learn the identities of these persons when you are an adult. No such provisions are made in the United States, often called the “Wild West” of TPR for its lack of regulation, research, oversight, and accountability. (More on that subject in the next sections.)
The voices of those born through TPR are often heart-rending to hear, but hear them we must if we are to “judge righteous judgment” about the matter. Let’s learn from these voices what we would otherwise never know. (Given the wide variety of TPR, that acronym replaces all the others in the quotes below.) The overall theme of these remarks is summed up in one young lady’s comment, “If we’re going to have these technologies, then they need to work first and foremost for the people that they directly affect . . . in reality, that’s really the children who are born.” (Anonymous Father's Day)
“[T]here is no point in putting a child through this type of grief when it easily could have been avoided. What’s the point. So parents can have their dreams come true? I’m not a dream, I’m a person.” (Source)
“[TPR] is a deliberate conscious choice to create a difficult situation for the child. Adoption is much more complicated. Don’t assume it is only about letting infertile people be parents because lots of people adopt who do not have infertility. It occurs for cultural reasons, lack of access to birth control, male dominance and pressuring a woman for sex, biological parent’s unwillingness or inability to raise a child, mental illness and substance abuse, death or illness of a parent, biological parent’s inability/unwillingness to marry or make a long-term commitment to the other parent, domestic violence (mom may have an abusive partner and she is afraid he will hurt her and the baby). Adoption is about making the best of a difficult situation, unlike DI which is about DELIBERATELY creating a difficult situation for the child.
“What would happen to the children of the world if [TPR] did not exist? It would be 100% positive. On the other hand, what would happen to the children of the world if adoption did not exist? For some it would be a good thing because they would not have to deal with the emotional issues of adoption. For others, it could be a death sentence or mean a lifetime of living in institutions or living with abusive and neglectful bio family.” (Source)
“You don’t bond with us when you are carrying us and you deny that we are yours because you have deluded yourselves and deny who and what we really are. . . . Here is our biological mother our flesh and blood the woman who would naturally be raising and loving us totally denying that we are her child. I’m sorry but you just can’t do that. We are your kids.
“Is it fair to take away our identities? Would you like that done to you? Would you like to wonder about your parentage or would you like to find out one day that the parents you thought were your bio parents were not? Truth has a way of coming out you know. Our biology is a part of us, it’s the very first part of us and you have no right to lie about it! Not to us, not to our family either. What you do isn’t all about you. That is so selfish. Its all about us, the kids of surrogacy.
“And what about this I hear about not separating twins because they have an in utero bond? That they have bonded for those 9 months and it would be a tragedy to split them up? Well what the heck about the mother that carried them inside of her? How much more personal can you get? Isn’t the mom bonded to those babies just as much as the twins are bonded to each other? Those kids may be brother and sister, but they are being carried by their mother. How much closer can you be? It doesn’t make sense and it sounds very hypocritical to me!” (Source)
“She is my real mother. She was who was suppose to raise me, if man hadn’t corrupted human reproduction. She abandoned me, and you encouraged it because you couldn’t have your own biological child . . . The bond we have is almost like the bond I have with God. Thank goodness I got the chance to meet her. Thank goodness I got the chance to call her “mom”. Thank goodness I got the chance to forgive her for being a poor single mother who didn’t have any other option to support her family but to sell her own children. Thank goodness we had the chance to cry in each other’s arms and admit how much we missed each other, how much we love each other, and how much we thought of each other every single day.” (Source)
“I've been encountering more, as I try to explain how products of 3rd party donor conception might feel about the way they were brought into the world, I really am amazed by how blithely the response is you're here, you wouldn't be here if it wasn't for that.
“When I hear that one statement, for me it demeans everything that I've gone through. Because for the people who say this, the conversation also ends here. They aren't interested in there being studies to see the effects on the products of surrogacy, the children of the surrogates. They aren't even interested in meeting in the middle and saying, yes perhaps we need to provide egg donors and surrogates, with their own legal counsel not paid for by the intended parents so they can have less biased legal advice. They aren't interested in setting up mandatory psychological testing for for intended parents, although if a child who is already in the world and needs a home, they would be required to go through this. They certainly don't come across as interested in looking at what happens when the mother child bond gets broken after delivery. I don't see them being interested that the children being created this way should have a right to know who their genetic and birth parents are. I don't see the research getting done in any of these areas. To me it seems that it wouldn't benefit them to do the research because then they would have to admit if they went through with these processes that they would be not considering the child's best interest.” (Source)
“You’re asked to adopt because it’s the most considerate way to have a child as someone who is biologically unable, rather than intentionally separating children from their biological families for your personal gain. Why are supporters for donor-conception, constantly treat children as indifferent blank slates who should have to deal with their identity crises, the inability to know their medical records and their entire families just so the intended parents won’t feel bad about their infertility. Children aren’t objects or accessories to make you feel more included in social circles and social settings. They’re human being who’s feelings and opinions, need to be considered as much (or more) than their *caregivers. A parent’s role is not to buy children to make them happy, their job is to take care of a person who is too young and immature to take care of themselves.” (Source)
“Just because YOU wanted to become a parent, you feel entitled to say others to get over their natural desire to know who they are genetically. Why didn’t you just get over not being able to conceive with your own cells and enjoy your life as it was? Why didn’t you just stay happy and redefine yourself, simply coming to terms with the brutal reality – you cannot conceive, period, but still there are many things one can do with their life for fulfillment, it’s not obligatory to have kids at all.” (Source)
“You are looking into egg donation – that means you are looking into financially underwriting or requesting that a woman abandon her biological child or children without allowing those children the bare minimum due process of a court approved adoption where their bio mother would stand up and identify herself and have to explain the reason why she was not going to raise her own offspring and face scrutiny as to whether she was profiting from not raising her offspring herself. You are looking into obtaining another person’s child to raise off the record and out of court – obtaining custody of them so early as to conceal the adoptive nature of your relationship by having paid their mother to experience her pregnancy for her so that nobody would be aware that they are her offspring. The contract you’d have her sign would have clauses in it which require her to abandon her parental responsibilities for her children once they are born.
“It’s just a well concealed government sanctioned black market adoption – the government agrees to look the other way and not prosecute women for maternity fraud because its such big business and gives wealthy and upper middle class people children to raise which infuses the economy with money and so on and so forth. The person whose identity is stolen has to play the role of someone they are not because their absent parent promised that their child would perform in the role of forever child to people who wanted one. But they had to take away their identifying papers and sequester them from bio family or they’d walk away at 18 and reclaim their identity. Its horrid. In legal adoption the point is to provide a minor with a family to raise them when there is no alternative for their own good they are not supposed to be adopted out as a service to people who really want to raise kids." (Source)
“No one INTENTIONALLY creates your (social) ‘infertility’. There are no public, social, market, institutions that are INTENTIONALLY responsible for your (social) ‘infertility’. Children are not band-aids for (social) ‘infertility’. They are autonomous human beings with equal dignity. So called ‘donor’ conception is an affront to their and everyones human dignity. Don’t pass on your perceived sense of loss so tangibly on to others. Advice such as, ‘just deal with it’, ‘make the best of it’, ‘count your blessings’, ‘I understand and empathize but it is what it is’ etc. that’s given to the ‘donor’ conceived should apply to the (social) ‘infertile’, pre-conception. The (social) ‘infertile’ and the ‘donor’ conceived are not on equal ground. Don’t INTENTIONALLY pass on the loss in the first place. It’s simply wrong.” (Source)
“You’re selling your children off to strangers before they are even conceived, you’re commercializing their existing, and stripping them from their humanity, in exchange for profit.
“Do not presume to tell the victims of this practice that they shouldn’t be looking for their mothers and fathers, in an effort to excuse your thoughtless actions. They have every right to know their relatives, just as much as you will feel you have the right to know the descendants that you personally want to keep and raise.” (Source)
“I am a new breed of bastard, because I was not conceived within my father’s marriage, I am not his daughter. I was intentionally ‘donated’ away. I know who he is now and I hate this identity that he and my parent(s) have given me. I am not worthy of my father’s or my genetic paternal family’s acknowledgement, love, care. I don’t belong. I am an outsider. I bring shame to them. Sometimes I wish I never found out the truth of his identity. It would have been much easier if I did not care. I don’t want to care anymore. The truth is too painful. Be careful for what you wish for. This is a terrible way to bring new life into the world.” (Source)
“Instead of making a child’s dream of a family come true, this system makes a family’s dream of a child come true. The only one who doesn’t get a say in the latter deal is the child. With adoption, you are making the best of the raw deal life dealt a child. With donor conception, you are creating that raw deal as the byproduct of a selfish desire to pass on your genes any way possible.” (Source)
“First they said we would be ok because at least we’d know who are mothers are.
“Then they said we’d be ok so long as our parents tell us we were donor conceived.
“Now they say we’ll be ok so long as our parents tell us we are donor conceived and we can access the identities of our biological donor parents.
“When are they going to work it out that we’ll only be ok if they admit that donor conception is not ok?
“We’ll be ok when society recognises the hypocrisy of recognising the importance of biological familial relationships and then saying they aren’t important if you’re donor conceived.
“We’ll be ok when we are permitted to grieve that loss. To say it out loud. And have open ears receive the words without retribution.
There’s anger and sorrow in these voices of TPR children--enough and to spare. Many of these voices cite what they call “adultism”—the notion that only the desires of the intended parents are important in reproduction, or that the desires of the intended parents would be identical to the TPR children produced. Maybe we were wrong to assume children would not care that their kin—the woman whose egg was used, the man whose sperm was used, the women whose uterus was “rented” for nine months and in whose body the child’s cells still live—have been sundered from their lives for pay?
THE LAW AND SURROGACY
As mentioned previously, the United States has no real system of regulation, oversight, and accountability for surrogacy businesses. There are some guidelines produced by the American Society for Reproductive Medicine, but they concern how surrogate mothers and “intended parents” should be screened. The real place to examine regulation is in the patchwork of state laws within the US.
And a patchwork it is. Five states, including Michigan, New Jersey, New York (only “altruistic surrogacy is permitted), Indiana, Nebraska, and Arizona, as well as the District of Columbia, ban surrogacy agreements entirely, making them legally unenforceable. The New York Times reports a case where a surrogate mother (donor eggs and sperm were used) was being pressured by the purchasing parents to abort the baby she was carrying, and instead, she fled to Michigan, gave birth, and was able under Michigan law to be listed on the birth certificate as the child’s legal mother. As of 2014, seventeen states had laws permitting surrogacy, and twenty-one states had no laws and not even one legal case precedent in state court. The Times notes, “California has the most permissive law, allowing anyone to hire a woman to carry a baby and the birth certificate to carry the names of the intended parents. As a result, California has a booming surrogacy industry, attracting clients from around the world.”
New York, as noted, bans all but “altruistic surrogacy,” where a friend or relative carries the child for no compensation beyond expenses. This is similar to the legal approach taken in the UK, Ireland, Denmark, and Belgium. Ekman is not convinced that ‘altruistic surrogacy’ is as benign as it might seem: “In my opinion, the distinction between altruistic and commercial surrogacy is a dishonest one. There is not actually any difference. What happens is the same in both: the woman is reduced to a container. Altruistic surrogacy functionalizes motherhood, even when it doesn’t commercialize it. Instead of being an existential and spiritual experience for the woman, pregnancy is made into a function to serve others.” (162) In addition, there have been several legal cases where surrogate mothers have testified they have been manipulated and even coerced into surrogacy by their relatives. Sometimes families have less compunction and more skill concerning these tactics than others. As the joint paper by several European feminist organizations put it, “Even in cases of surrogacy among close acquaintances or family members, a form of exploitation of the generosity of the woman who agrees to carry the child exists. She is potentially the object of veritable emotional blackmail. It is an illusion to imagine that power relations and/or manipulation are not factors within families and between friends.”
It is noteworthy that the number of “Wild West” countries is shrinking over time as each new heartbreaking scandal, such as the Baby Gammy affair, hit the news. As noted previously, India has strict new laws on surrogacy, as does Thailand—despite the big money involved. It’s now California, Ukraine, and Mexico that remain hubs for international surrogacy arrangements.
With regard to international law, there is no international convention on surrogacy. However, Article 35 of the International Convention on the Rights of the Child states, ““States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.” If it looks like a duck and quacks like a duck, perhaps we are justified in calling it a duck—or in this case, justified in calling surrogacy the sale and traffic of children. The purpose or form of the sale/traffic is irrelevant, according to this convention.
Relatedly, Article 5 of the Convention on International Adoption (often called the Hague Convention) requires that states have ensured that in the course of adoption, “the consents have not been induced by payment or compensation of any kind and have not been withdrawn,” and “the consent of the mother, where required, has been given only after the birth of the child.” Surrogacy contracts appear to violate both the letter and the spirit of these obligations. The surrogate mother agrees well before conception to hand over the child for a fee.
And if, after the birth, the surrogate mother contests the agreement, a judge in many states of the union will tell her she has absolutely no legal standing to do so--despite the fact that Article 9 § 1 of The International Convention on the Rights of the Child furthermore states that, “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.” The child will be separated from the mother against her wishes, even though no one could prove she had neglected or abused the child. (It should be noted that the United States is a “member” of the Hague Convention, meaning that it commits to the convention’s stipulations.)
Surrogacy enterprises have gotten away with claiming surrogacy is neither fish nor fowl—not trafficking and not adoption—and so are free to operate without any regard to the niceties of these international conventions. It’s time for a hard-eyed international judicial judgment of how fishy and/or how fowl the business really is.
THE LDS STANCE
If the reader has hung in there for the lengthy preceding discussion, they may remember that the article began by mentioning that the LDS Church “strongly discourages” surrogacy arrangements and other third party reproduction and that the main purpose of the essay was to suggest that stance was justified. We finally now return to that topic. The official stance of the LDS Church concerning matters of TPR is to be found in the administrative handbook (Book 1) states:
21.4.3 Artificial Insemination
The Church strongly discourages artificial insemination using semen from anyone but the husband. However, this is a personal matter that ultimately must be left to the judgment of the husband and wife. Responsibility for the decision rests solely upon them.
21.4.7 In Vitro Fertilization
The Church strongly discourages in vitro fertilization using semen from anyone but the husband or an egg from anyone but the wife. However, this is a personal matter that ultimately must be left to the judgment of the husband and wife. Responsibility for the decision rests solely upon them.
21.4.13 Sperm Donation
The Church strongly discourages the donation of sperm.
3.6.2 Children Conceived by Artificial Insemination or In Vitro Fertilization
Children conceived by artificial insemination or in vitro fertilization are born in the covenant if their parents are already sealed. If the children are born before their parents are sealed, they may be sealed to their parents after their parents are sealed to each other.
If a child was born to a surrogate mother, the stake president refers the matter to the Office of the First Presidency.
17.3.16 Surrogate Motherhood
The Church strongly discourages surrogate motherhood. If parents want a child who was born to a surrogate mother to be sealed to them, the stake president refers the matter to the Office of the First Presidency.
Some, mostly those who are not members, would suggest the stance of the LDS Church about TPR simply represents a stereotypical fallen patriarchal attitude of control concerning reproduction. I beg to differ. The preceding pages of investigation, non-exhaustive as they are, provide ample justification for asserting that surrogacy is anti-woman, is fraught with physical risks for specifically the women involved (the egg donor and the surrogate mother), and creates deep emotional harm to those who have been bought or whose “services” have been bought. Surrogacy is reproductive prostitution. The Church does not oppose prostitution because the Church is a fallen patriarchal institution--to the contrary, the Church opposes prostitution because the Restored Gospel preaches that prostitution is degrading and harmful to both the daughters and sons of God. The same can be said of the Church’s opposition to surrogacy. Surrogacy is degrading and harmful to women, and arguably there is a cost also to the sons and daughters who are thereby produced.
Why? I believe it has to do with that nature of love. Love—especially sexual love and especially family love--means not walking away. Love in the Gospel context means fidelity, not just for the here and now, but also for eternity. Prostitution and surrogacy preach the opposite: walk away from those you have loved, walk away from those you have had intimate contact with, walk away from your family and kin—walk away for the money. The Church could never condone such a viewpoint, antithetical as it is to all our fondest hopes and dreams in the Great Plan of Happiness.
Furthermore, respect for women means rejecting schemes that erase and obliterate any trace of their love and labor and voice. Pretending that a child has “no mother at all” because an egg donor and a surrogate mother have been “used” is the ultimate misogyny. Every child has or had a mother—a biological mother. To tell a child otherwise is to tell them a bald-faced lie, because that navel mark is right there emblazoned into their flesh for all to see. Any viewpoint that endorses the dispensability of women and mothers to the happiness of God’s children offends the Mother of us all—as well as Her Husband and Son, who love Her.
But there is even more to be seen in the Church’s stance. Consider that if a husband and wife married in the temple use artificial insemination or in vitro fertilization—apparently whether or not the sperm and egg come from the couple even though the latter choice would be strongly discouraged—if the wife carries the child in her body and gives birth to it, the child can be considered as born in the covenant. (One wonders what the Church’s position will be on uterine transplants.) However, even if the egg and sperm are provided by the husband and wife, if a surrogate mother is used the child cannot be considered as born in the covenant. The couple must appeal to the First Presidency in this case, as lower level authorities are not permitted to act in this situation.
Fascinating, as Mr. Spock would say. This strongly suggests that the writings of Analiesa Leonhardt and others viewing pregnancy, childbirth, and lactation as priestesshood ordinances performed by the daughters of God are correct. It is that physical/spiritual labor of soul-to-soul connection, that loving and deeply intimate sacrifice of blood and water and suffering on the part of these “saviors on Mount Zion,” as Elder Jeffrey R. Holland called mothers, that faithfulness unto extremity and death, that marks the divinity of these ordinances in mortality. It is no coincidence that the navel mark is echoed in our sacred vestments. Biological motherhood (though motherhood is more than biological) is a sealing of spirit to body for the child, but it is also a sealing of mother and child eternally, symbolized by their microchimerism. Just as Christ, because of His infinite sacrifice in the Atonement, claims us as his forever and carries us with him every moment, so mothers through their own blood sacrifice, claim us forever and carry us with them every moment. And if the father and mother are sealed when the birth takes place, then the child is certainly born under that covenant and sealed to its parents from birth (and perhaps before).
The Church’s opposition to surrogacy thus takes on a distinctly feminist cast: it says, in a very plain way, that no man and no mortal power can gainsay the power of the priestesshood. Before the power of the priestesshood, nothing can stand—no contract, no money, no fallen law. The Church, then, could never dare mess with the rights and power of the priestesshood. It is right and proper, then, that situations of surrogacy only be dealt with by the First Presidency itself, the very highest governing body of the Church whose membership includes the living prophet. No lower level could possibly suffice for an issue of this import and magnitude.
The longer I live, the more I feel that women and their power we call priestesshood or motherhood are the greatest challenge to the great and spacious building, often called Babylon in the scriptures. You see, it turns out that you cannot buy anything in this world with money, after all. You can buy a woman’s vagina in prostitution, but you cannot stop her heart from loving. You can buy a woman’s uterus in surrogacy, but you cannot stop her heart from loving. And as long as the hearts of the priestesses still love, there is hope in the world. Why? Because the power of that loving soul-to-soul connection is the very fountain of life, and of positive change, and of growth.
Women thus stand as a rebuke to all forms of alienation. Don’t pay her as a surrogate, and you’ve exploited her. Pay her and you’ve still exploited her. The only way not to exploit her is to recognize that surrogacy itself is the wrong you do her because it tries to break up the embodied connection that is women’s power. Ditto for prostitution, and many other practices. Women’s power represents unification, the very opposite of detachment, dissociation, and alienation. This insight makes us rethink what God meant when we learn in Genesis that the answer to Adam’s being alone/alienated/dissociated/detached is to bring to earth the power of Eve and her daughters.
No wonder, then, that there is “enmity” decreed between the serpent and woman (Moses 4:21); through her work in this world, our common enemy’s plans for our misery are consistently thwarted, even in the midst of the greatest affliction. Rosa Marinoni’s mid-twentieth century poem, At Sunrise, comes to mind, as an example of the soul-affirming power of motherlove that strengthens until the very moment of death:
They pushed him straight against the wall
the firing squad dropped in a row;
and why he stood on tiptoes,
those men shall never know.
He wore a smile across his face
as he stood primly there,
the guns straight aiming at his heart,
the sun upon his hair;
For he remembered in a flash
those days beyond recall,
when his proud mother took his height
against the bedroom wall.
There is hope even in death when there has been this powerful love. President Thomas S. Monson touched on the same theme when he said, “One cannot forget mother and remember God. One cannot remember mother and forget God.” He continued, “Men turn from evil and yield to their better natures when mother is remembered,” or as President Joseph F. Smith expressed it,
“Only a little boy . . . whenever temptations became most alluring and most tempting to me, the first thought that arose in my soul was this: Remember the love of your mother . . . This feeling toward my mother became a defense, a barrier between men and temptation, so that I could turn aside from temptation and sin by the help of the Lord and the love begotten in my soul, toward her whom I knew loved me more than anybody else in all the world, more than any other living being could love me.”Sometimes this great power can be seen best when it awakens from slumber. And when it awakens, it changes everything. When in the 1980s Mary Beth Whitehead, a “traditional” surrogate mother from New Jersey whose egg and uterus were “used” sought custody of her baby daughter, Baby M, just such an awakening took place. I remember that case well; as a young mother, it moved me deeply. Ekman recounts:
“When Whitehead realized that this was “my baby,” it was a healing discovery. She had been told that she was like a broodmare, that the child she bore didn’t have anything to do with her, that she would only give birth to it and hand it over. Her consciousness was reified: she saw herself as a tool, and was proud of her ability to deliver as good a product as possible. But at the birth, something happened that caused her to see she was not simply a breeder. Body and soul united, the sight of her daughter brought her back to life. And when she says, “I am not a surrogate; I am a mother,” she revolts against her mechanical role. She refuses to be an oven, an incubator, a factory. She says: I have given birth, and I am a mother.” (Ekman, 188)To this day, the state of New Jersey has banned surrogacy contracts because of Mary Beth Whitehead’s awakening. A judge in the case wrote,
“There are, in a civilized society, some things that money cannot buy. In America, we decided long ago that merely because conduct purchased by money was “voluntary” did not mean that it was good or beyond regulation and prohibition. . . There are, in short, values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life.”If Judge Wilentz is right, then what is to be done?
Policy should not be made in ignorance. While the surrogacy industry tries to dominate the narrative, dismissing information about risks and harm, and silencing and harassing those who would speak of these things, it is imperative that this industry be carefully scrutinized. We need solid research about the effects of egg donation, surrogacy, and even sperm donation, on both those who were “used” and those who were born from this use. Donors and surrogates must be followed, and their medical histories tracked over a long period of time.
And because we don’t know what we need to know to craft good policy, we must be cautious. O. Carter Snead of Notre Dame’s Law School hits the nail on the head when he states,
“It seems to me that if you are confronted with the possibility of real serious harms, the prudent thing to do for the legislature would be to try to pause for a moment, impose a moratorium, and conduct very serious and deep and searching inquiry into what the harms are. It seems irresponsible to me to push full steam ahead with a project that could risk serious harms that we don’t even know about.” (Breeders)Another fact that should caution pause is that surrogacy has become an extremely divisive issue among those who self-identify as feminists. Ekman, for example, is a feminist who strongly opposes surrogacy as being patriarchal and misogynist. Others self-identified feminists take the opposite view—that to oppose surrogacy is to be patriarchal and misogynist. For example, one author penned, “In any case, it’s important to debunk the idea that criminalizing surrogacy should be part of the feminist project. The assault on surrogacy, as well as fertility treatments in general, is yet another piece of the right’s battle against reproductive self-determination . . . Nothing is more sacred than this right to fundamental self-determination, and it’s distressing to see the aegis of feminism applied to an extremely anti-choice effort to restrict reproductive rights. . . . Criminalizing freely chosen reproductive actions is not part of the feminist project.”
These disagreements among feminists mark other issues, as well, such as prostitution and sex-selective abortion. But it’s important to note these disagreements are taking place in the context of a severe and global devaluation of women’s work, including biological motherhood. As one writer at the New Statesman put it, “For some feminists there is much appeal in insisting that all things are equal in human reproduction. The truth, however, is that they are not, and never will be until we take the physical, emotional and social context of women’s lives as seriously as we take those of men.” In such a culture of pervasive devaluation of what women do, we should have a healthy suspicion of any who wish to devalue reproduction’s significance even further, even if they self-identify as feminists.
After all, as feminist Katha Pollitt persuasively argued about the Baby M/Mary Beth Whitehead case,
“Even if no money changed hands, the right-to-control-your-body argument would be unpersuasive. After all, the law already limits your right to do what you please with your body: you can’t throw it off the Brooklyn Bridge, or feed it Laetrile, or even drive it around without a seatbelt in some places. But money does change hands, and everybody, male and female, needs to be protected by law from the power of money to coerce or entice people to do things that seriously compromise their basic and most intimate rights, such as the right to health or life. You can sell your blood, but you can’t sell your kidney. In fact, you can’t even donate your kidney except under the most limited circumstances, no matter how fiercely you believe that this is the way you were meant to serve your fellow man and no matter how healthy you are. The risk of coercion is simply too great, and your kidney just too irreplaceable.
“How can it be acceptable to pay a woman to risk her life, health and fertility so that a man can have his own biological child, yet morally heinous to pay healthy people to sacrifice “extra” organs to achieve the incomparably greater aim of saving a life?
“If contract motherhood takes hold, a woman’s “right to control her body” by selling her pregnancies will become the modern equivalent of “she’s sitting on a fortune.” Her husband’s debts, her children’s unfixed teeth, the kitchen drawer full of unpaid bills, will all be her fault, the outcome of her selfish refusal to sell what nature gave her.
“But is a deal a deal? Not always. Not, for instance, when it involves something illegal: prostitution (sorry, Professor Stone), gambling debts, slavery, polygyny, sweatshop labor, division of stolen goods and, oh yes, baby selling. Nor does it matter how voluntary such a contract is. So if your ambition in life is to be an indentured servant or a co-wife, you will have to fulfill this desire in a country where what Michael Kinsley calls “the moral logic of capitalism” has advanced so far that the untrained eye might mistake it for the sort of patriarchal semifeudalism practiced in small towns In Iran.
“When Mary Beth Whitehead signed her contract, she was promising something it is not in anyone’s power to promise: not to fall in love with her baby.
"Feminists who argue that respecting Mrs. Whitehead’s maternal feelings will make women prisoners of the “biology is destiny” arguments should think again. The Baby M decision did not disclaim the power of biology at all: it exalted male biology at the expense of female. Judge Sorkow paid tribute to Mr. Stern’s drive to procreate; it was only Mrs. Whitehead’s longing to nurture that he scorned. That Baby M had Mr. Stern’s genes was judged a fact of supreme importance-more important than Mrs. Whitehead’s genes, pregnancy and childbirth put together. We might as well be back in the days when a woman was seen merely as a kind of human potting soil for a man’s seed.
“And so we arrive at the central emotional paradox of the Baby M case. We accept a notion that a man can have intense fatherly emotion for a child he’s never seen, whose mother he’s never slept with, let alone rubbed her back, or put his hand on her belly to feel the baby kick, or even taken her to the hospital. But a woman who violates her promise and loves the child she’s had inside her for nine months, risked her health for, given birth to… She must be some kind of nut.
“Feminists who think regulation would protect the mother miss the whole point of the maternity contract, which is precisely to deprive her of protections she would have if she had signed nothing. If the contracts were unenforceable, the risk would be where it belongs . . .
I agree with Pollitt. The legalization and regulation of surrogacy is as much a capitulation to its misogyny as is the legalization and regulation of prostitution. The purpose of the contract, as she says, is not to offer the surrogate mother protection, but rather to deprive her of it. Such contracts are best left legally unenforceable. Those without economic power in the surrogate relationship would find that the playing field was quite a bit more level in that case. As one Indian feminist explained, it’s that uneven economic playing field that taints the entire “choice” to become a surrogate, just as it does in prostitution:
“Many liberal feminist strands have claimed that these women actually make autonomous choices, yet autonomy becomes deeply problematic in this context when it is clear that this is a question of an unequal economic hierarchy. Feminist should strive for a society where we not only question and fight against the commodification of women’s bodies, but also question and challenge generic liberal notions of “free choice” and “autonomy”.
Indeed, the Swedish Women’s Lobby argues that surrogacy is temporary slavery, and must be abolished just as slavery was:
“The right to enter into an agreement with another individual has never been absolute. It is forbidden to enter into a contract to commit a murder or to sell oneself into slavery. Contractual freedom only goes so far. The Swedish Women’s Lobby views surrogate motherhood as a contract of temporary serfdom, where the surrogate mother waives her rights to bodily integrity during the pregnancy. Such a contract is void for the basis of a contract is the possibility of enforcing it. What if the surrogate mother changes her mind? Are we to involve the police and force her to fulfill her contractual obligation? Can we deny her the right to abortion? Can the purchasers demand a refund or indemnity if she doesn’t follow through or if she has a miscarriage? The judicial system cannot and should not enforce the realization of a contract where a woman has waived her human rights.
“Every child has the right not to be a commodity on a market. We must renounce the view of a liberal market-approach to surrogacy which privileges paying buyers while women’s rights are negotiable.
“Having a feminist approach to surrogacy means rejecting the idea that women can be used as mere vessels and that their reproductive capabilities can be bought. The right to bodily integrity is a right which should not be able to be negotiated by any form of contract. However the contract is worded, surrogacy is still trading with women’s bodies and with children. The rights of women and children, not the interests of the buyer, must be the focus of the debate surrounding surrogacy.”
Where is the limit to be placed on human desire? That dividing line must be the human rights of other people, even if they are but “women and children.” Where states have made surrogacy contracts unenforceable, that dividing line has been properly respected. This is the optimal policy option, in my opinion, and state governments that have taken that position should be urged to hold that line.
But what about states where surrogacy has been legalized or remains unregulated? In these suboptimal legal contexts, there are still policy options, such as funding for independent long-term studies on the effects for donors, surrogates, and children. Others include disallowing compensation for surrogacy, as New York does, or insisting the intended parents, as part of their fee, pay for the surrogate to retain an independent lawyer representing her own interests. Making sure the surrogate’s name is on the birth certificate along with the “intended parents” is another important step in this context is important: as Lahl comments, “If a birth certificate does not have the names of the egg donor and the gestational surrogate, that’s an inaccurate birth certificate. It’s adult-centered. The birth certificate must be accurate. After the adoption of the child, you can put your name on it, too.” (Interview) It is also vital that the child, at least upon majority, has access to the identities of any and all parties, to include egg and sperm donors and surrogates; this is a measure that can be immediately taken to better respect the human rights of TPR children.
Lahl is optimistic that things can turn around: “It is not ridiculous to say we can stop this. . . . It’s like the early days of the tobacco industry—there’s nothing wrong until people start speaking up about how they’ve been harmed. Then we got warnings on cigarette packages, the government got involved, etc. Now in San Francisco where I’m based, there’s no smoking at all.” (Interview) Given the recent crackdowns in India and Thailand, she may have a point. A greater understanding of how predatory and even inhumane the practices can be has brought increasing caution on the part of governments that were once very lax about surrogacy.
In conclusion, let us as Latter-day Saints become more articulate on the subject of why our Church strongly discourages surrogacy. To do so, let us educate ourselves about those things the dominant narrative of surrogacy has a vested interest in keeping invisible. And once educated, let us “speak up and speak out," as President Russell M. Nelson has urged the sisters, for the human rights of women and the children they bring into this world.
Our Heavenly Mother would surely be overjoyed if we did. . .
Full Citation for this Article: Cassler, V.H. (2015) "Of Woman Born: An LDS Feminist View of the Moral Minefields of Surrogacy," SquareTwo, Vol. 8 No. 3 (Fall 2015), http://squaretwo.org/Sq2ArticleCasslerSurrogacy.html, accessed <give access date>.
Would you like to comment on this article? Thoughtful, faithful comments of at least 100 words are welcome. Please submit to SquareTwo.
I. Rachel Zirkle
I've been pondering your article on surrogacy; I think it is a wonderful service you have done in bringing to light this issue, especially in the gospel context. It troubled me that I've never thought much about surrogacy, or its implications for all involved. It is a well-hidden industry indeed. I ran into a girl I knew from high school a few years ago, and she told me she was going to be a surrogate for the family she nannied. I couldn't wrap my mind around that--would she continue to nanny the baby that she birthed? How could one stand that? I loved the quote about people getting so caught up in what's their rights, but it is NOT a human right to have a child. How well put, a thought that I don't think many have even considered. Not a right, but a blessing--one that won't be denied to those who live faithful either now or in the next life.
Another aspect of the article I've been pondering is how I wish I had grown up being taught the utter power found in being a woman and giving birth and how our bodies function, etc. All the emphasis in YW seemed to be don't break the law of chastity because it's a sin and you'll be in trouble, or don't dress immodestly cause you're not supposed to--but what if the emphasis had been on what beautiful, Godly power we hold (not just in the abstract, but the power to have sex and create a child and have that soul-to-soul connection!) and how important it is to protect that power. It's not something money can buy, or something you trade for friends/popularity, or what have you. It's divinity within you. Perhaps these truths were shared then and it took me time and experience to really get it with such deep clarity, but I don't think so. At least this can be my goal to teach my children now.
II. Laura Thornock
Your article on surrogacy deeply moved me, to the point that even several weeks later I am still thinking about it and feel compelled to write this comment. The piece enlightened me on many aspects of the TPR industry that I was previously unaware of. I appreciate you bringing these facts to the SquareTwo audience's attention. What I found most fascinating was your analysis of LDS sealing policy as it relates to children born to surrogate mothers. These policies powerfully suggest that the birth process is itself an ordination process. I wouldn't be overstating when I said that your piece shifted my entire outlook on this topic.
The reason I can't get the article out of my mind however is for a more emotional reason. This summer I started following a Utah blogger who shared her and her husband's story of using a gestational carrier to have twin girls. In this case, the fertilized eggs came from the parents, as they were leftover from a previous failed IVF cycle, and were implanted in the surrogate carrier. Anyone interested can read this couple's story at their website http://www.tuttletown.com/.
Though I don't know this couple personally, I became emotionally involved in their story as I read their blog and followed their Instagram account. Before their blog, I had never read about a personal story of surrogacy. I developed a deep compassion for the couple regarding their infertility struggle, and I rejoiced along with them when their twin baby girls were born. I felt good and peaceful inside when they testified that Heavenly Father had inspired them throughout the entire process—including leading them directly to meeting the woman who would bear their children. I have enjoyed seeing pictures of their twin girls on Instagram as they have grown up the past few months. I came to the conclusion that the gift the woman gave to this couple by carrying their babies was a beautiful gift, and a blessing of modern medicine that was harmony with the gospel, even though it was an unfamiliar process to me at the time.
I am now conflicted about what to do with these positive emotions I have towards this Utah couple since reading your article. Your article opened my eyes and persuaded me that surrogacy is not in harmony with the gospel. However, it also doesn't seem right to reverse my experience reading this couple's story and think that must have been mistaken in these personal choices that they made. I am now to think that their new baby girls should never have been born? Do you believe there are cases where using a gestational carrier could be the correct path for a couple? In this couple's case, all the details seemed to be "ideal": 1) The gestational carrier was completely willing (not coerced), 2) the couple developed a close friendship with her throughout the pregnancy, 3) the babies' DNA came from the parents and thus the babies won't have to wonder who they are biologically related to, 4) the babies will know who their surrogate mother was and nothing will remain a mystery, 5) the babies were sealed to their parents in the temple. I wouldn't have felt as positive about this story had any of these ideal details been missing.
I don't mean to sound dramatic in any way! I am just asking a sincere question about how to reconcile my previous emotions with my newfound view of surrogacy provided by your article.
Do you have any thoughts?
III. V.H. Cassler, the author, responds to Laura Thornock
Hi, Laura! I was so happy to get your comment. I think it’s one of the best comments we’ve had: thoughtful, eloquent, sincere, open. It cuts through everything to the heart of the matter.
I would like to start my response by asking that in our dialogue we not pass judgment on the specific couple in your example. Neither you nor I have that stewardship with regards to that specific couple.
And we must never say of a child, “He/She should never have been born.” We can certainly talk about the manner in which a child was conceived/born, but the child him- or herself is a priceless soul, our brother or sister who yearned to progress through mortality. Thus a child of rape is just as priceless as a child not born of rape, but that would not stop us from decrying rape and working against it. And hopefully the child would never say they were grateful for the rape by which they were conceived. They can be grateful for the gift of life while at the same time feeling strongly that rape is a terrible crime, and mourning with their mother about that grievous assault upon her.
So with those ground rules, let us instead talk about the clash of emotions you feel, but in a more abstract manner.
I think the emotional conundrum you feel is a very common one in our mortal condition. Our scriptures state that “men [and women] are that they might have joy” (2 Ne 2:25). When someone tells us how happy and joyous they feel, we naturally process the statement as being the fulfillment of this scripture. We are naturally happy for them—how could we not be happy for a person who sincerely expresses how happy and joyous they feel? As a child of God, they are our brother or sister, and we have natural affection and sympathy for them; our souls remember in some deep way that we have loved them for eternity. This is all to the good.
But our feelings are not all there is to the Gospel of Jesus Christ. There is also the Word of God. Without the Word, our feelings become an unsteady guide. (And, conversely, without our feelings, the Word is empty; but that is a topic for another day.) Consider: I once had a close friend who began an affair with a married man. She was so happy, and so filled with joy and rapture! He was her soul-mate; they were loving and gentle together. Their days were filled with sunshine, and if my friend could have walked on air, you would have found her thirty feet up. It was impossible not to feel happy for her—she radiated joy like a space heater.
Laura, I sincerely felt happy for her, but I also knew what she was doing was wrong. Even if she had lived the rest of her life in joy and bliss with her beau, even if the man’s wife was totally fine with the relationship and so there was no obvious “victim,” I could not gainsay that what she was doing was wrong. Did my feelings conflict? Yes. Did I decide that the fact that she felt such joy meant that the Church’s prohibition on adultery was misplaced? No. Did I feel the Church was somehow mean or unfair to my friend because it would not condone her adultery? No. Did I feel I could no longer wholeheartedly proclaim that adultery was wrong because my friend obviously felt great joy in this relationship? No. Did I feel God must have made a special exception to the prohibition against adultery for my friend, the evidence being that she was filled with joy? No. Did I feel I should raise my voice to say that the Church should change its stance on adultery because of my friend’s obvious happiness? No.
In other words, my feelings of sympathy and happiness for my friend (and my friend’s feelings of joy and bliss) did not—could not—overturn the line between right and wrong that we call the Word (Alma 42:1).
I think this tension is part of our mortal experience. Sometimes our feelings will feel conflicted between the natural affection we have for our brothers and sisters, and our understanding of what is right and wrong. When that happens, I have learned through my own experience to hold to the rod as a surer guide than my feelings. That doesn’t mean I have to hate my friend. But it means I choose not to allow my love for my friend to displace my love of God (Matt. 10:37). Can I love my friend still, even if God comes first? I think I can. Maybe I am naïve, but I think I love my friend more if I stay rooted and pull her towards me rather than allowing her to pull me in her direction.
Now, might changes in time and generations change Church policy on surrogacy? I am in no position to say. If the Church changes its policy someday, so be it. I know that the “operations” and “administrations” of God may differ according to time and place (D&C 46:15-16). But the policy strongly discouraging surrogacy is in the here and now. We owe it to ourselves to ponder the policy, and investigate the matter as deeply as possible. Thank you for reading that very, very long article, for it was my attempt to do just that.
As you know, in that article I tried to make the case that surrogacy is anti-love and anti-woman. To knowingly and purposefully create the incredibly intimate bond between a woman and the child who grows within her just so that the woman can abandon the child seems perilously close in my mind to “loving and making a lie” (Rev 22:15). Love and planned abandonment are simply incompatible. And while some may say the surrogate mother is not a “real” mother because she has no genetic link to the child, that statement is simply untrue. She is a real mother, with a real biological tie to the child. A person cannot grow within your body without there being a profound biological tie. And that tie is not severed at birth: the child’s genes will circulate in her body for the rest of her life, and the environment of her womb and body will epigenetically shape the child for the rest of his/her life. A surrogate mother is most certainly kin to the child she carries, and the child is kin to her, which seems to explain the Church's sealing policy in cases of surrogacy. To think they are not kin is to buy into men's standpoint of what defines reproduction (a DNA donation alone). We women know there is much more to reproduction than that.
Even if we say there is no victim in surrogacy (every adult has voluntarily agreed, and the child is loved), there’s a lie there still. There’s a planned abandonment still. I would go so far as to say there’s a wound there still. And it’s a gendered wound, involving specifically mothers. While the world is full of all types of injustice for women and children, planned and paid-for abandonment is not a welcome addition to the list--even if everyone is happy and joyous about it.