As states continue to pass legislation allowing for same-sex marriage, an increasing number of gay rights groups have begun to expand the scope of their efforts to include greater access to children for same-sex couples—and changing the legal definition of parenthood to accommodate third-party reproduction. So far, the use of sperm and egg donors remains relatively uncontroversial; gametes are widely available for purchase in most states. Surrogacy, on the other hand, is more regulated and has engendered greater debate over the ethical issues involved. Meet Brad Hoylman: A State Senator in New York, where commercial surrogacy is prohibited. He was profiled along with his partner David Sigal, in a recent New York Times profile chronicling their firsthand experience of hiring a surrogate mother in California to give birth to their daughter. Like many gay New Yorkers seeking children, Hoylman and Sigal were forced to look outside the state for a surrogate mother, and Hoylman—being in a position of power—is aiming to change that.
Yet the traditional political allegiances of liberal versus conservative are thoroughly scrambled when it comes to surrogacy debates. In states where surrogacy legislation has been or continues to be debated, some of the strangest and unlikeliest of coalitions have formed to either support or oppose such measures. Here’s a brief overview of the lay of the land: Catholic groups oppose surrogacy on the grounds that it’s a commodification of human life and reduces pregnancy and the child to the “product” of a contractual agreement, rather than the natural fruit of a couple’s love and marriage. Within Protestant and Evangelical circles, there’s a wide array of thinking on the matter with some aligning themselves with Catholic teaching and others viewing surrogacy as a means to being “pro-family.” Libertarians tend to oppose restrictions on surrogacy much as they oppose any interference with the free market or with individual freedoms. They tend to adopt the same language and reasoning that is deployed in the abortion debates: “my body, my choice.” Meanwhile, women’s rights advocates tend to be the most divided on the issue, with some feminists supporting surrogacy under the banner of women’s reproductive autonomy, while others fear that a market for women’s wombs will result in exploitation, particularly of poor and minority women.
By way of background, surrogacy first made a big splash in the United States during the 1980s, when the now infamous “Baby M” case in New Jersey captured national attention. Born in 1986, “Baby M” was the surrogate child conceived from the sperm of William Stern and the egg of Mary Beth Whitehead, who agreed to be paid $10,000 in exchange for carrying the child for Stern and his infertile wife. After birth, however, Whitehead decided that she was too attached to the child (which was biologically hers) to give her up. A major custody battle ensued. Eventually, custody was awarded to the Sterns, though surrogacy contracts in New Jersey were ruled unenforceable and have been so ever since. Subsequent years have seen a mix of rulings on surrogacy throughout the United States, with some states allowing for the practice, others criminalizing it, and most not addressing it at all.
In his unanimous ruling for the New Jersey Supreme Court, then Chief Justice Robert Wilentz 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.
On their own terms, these words might meet broad consensus across varying political and religious factions. Yet they seem downright provocative when read in the light of the highly fraught debates over gay rights and the importance of biological ties for parents, children, and the definition of marriage. As Allison Steinberg, a spokeswoman for the Empire State Pride Agenda (which supports the New York commercial surrogacy bill) recognized in the New York Times profile, “Not to be cliché, but you know how the phrase goes—first comes love, then comes marriage, then comes the baby and the baby carriage.” Another Times profile quoted a gay parent by surrogacy: “First we got marriage equality; now we need surrogacy equality.” After all, same-sex couples seeking children of their own lineage can only achieve this with outside help—a man’s sperm or the egg and womb of two women. Yet Justice Wilentz’s ruling against commercial surrogacy counsels that there are some things money cannot buy, some things that cannot be sold. The demands of couples advocating for surrogacy are attempting to prove him wrong.
Here, we have at loggerheads two groups typically allied as fellow liberals or progressives—who probably would be in agreement on most other social or economic issues of our day. On the one hand, women’s rights activists; on the other, gay rights activists. Most of the feminist advocates are uninterested in entangling themselves with debates over marriage—indeed, most of them fully support gay marriage. Their concern is that women could be used or harmed during the surrogacy process, which is increasingly the next step for many gay couples seeking children.
In an interview in the newly released documentary film on surrogacy Breeders: A Subclass of Women?, MonaLisa Wallace, a leading San Francisco women’s rights activist and attorney, rejects surrogacy because it treats women as “industrial human farms” and commodifies human reproduction by paying a woman to “rent her uterus, to rent her ovaries, to risk surgery and death.” Most surrogates in the United States are paid between $25,000 to $30,000 to carry a surrogate pregnancy to term. Feminists like Wallace caution that such sums can often unfairly entice these women to act against their best interests without proper consideration of both the emotional and physical risks involved. Almost every surrogate cites financial incentives as her primary motivation. As the Pro-Choice Alliance for Responsible Research recently highlighted, “In the real world, contract pregnancy is a class issue. We won’t see many women working as surrogates for people who are less privileged or affluent than they are.” The power imbalance between the surrogate and the intended parents is enough for most feminists to urge caution in the surrogacy process.
Also at stake here is the gestational connection between mother and child, which builds over the course of every pregnancy. The bond between the mother and the child in utero is both recognized and encouraged by the medical profession at large. Hormones, particularly oxytocin, are released during and after pregnancy that establish a bond of trust between mother and child. Surrogacy severs this prenatal attachment immediately after birth, which does a disservice to all parties involved.
In her book Being and Being Bought, Swedish feminist scholar Kajsa Ekis Ekman likens surrogacy to prostitution:
The product of surrogacy is absolutely tangible—it is a newborn baby. 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?
All of this leads to the concern that surrogacy turns procreation into commerce, children into commodities—no matter how much the commissioning parents love them. Pregnancy, with all its joys and perils, is denuded, a woman’s ability to give birth assigned a market price. Many feminists, unsurprisingly, find the practice unjust.
While same-sex marriage has brought fresh momentum to the push for commercial surrogacy, particularly in New York and Washington, DC, infertile heterosexual couples contribute to the demand. In June 2013, when Louisiana was debating a bill that would legalize commercial surrogacy, State Senator Gary Smith testified that he and his wife twice used a California woman as a surrogate to have their two children; reports indicate that he circulated photos of his children during his testimony in an effort to provide a human face to the cause. In January of this year, during debates over legislation that would make surrogacy contacts unenforceable in Kansas, it was a Christian fertility doctor who testified against the legislation, stating that he had reasoned with “the bill in one hand and my Bible in the other.” Given the profit incentives of the surrogacy enterprise, one has to wonder how much his wallet might have also weighed on his considerations. Even so, it’s telling that in these two deeply conservative states, the push for surrogacy is being greeted with the same enthusiasm as in more progressive jurisdictions.
In August 2012, when New Jersey Governor Chris Christie vetoed legislation that would allow for the commercialization of surrogacy—and hence, reverse the state’s Supreme Court ruling in the Baby M case—he stated: “While some all applaud the freedom to explore these new, and sometimes necessary, arranged births, others will note the profound change in the traditional beginnings of the family that this bill will enact. I am not satisfied that these questions have been sufficiently studied by the Legislature at this time.”
We should expect that legislatures throughout the country will continue to debate the merits of commercial surrogacy over the next few years, as the combined forces of gay rights activists along with infertile couples seeking children push for expanded and easier options to obtain them. As this continues, surprising coalitions of allies and opponents will develop: pro-choice feminists working hand in hand with Catholic leaders to oppose the commodification of life, and gay rights progressives working with evangelical allies to advance their banner of pro-family causes.
Legislators and citizens alike would be wise to remember that what is most at stake in these battles is the potential child in question. Surrogacy allows certain parents to acquire the child of their dreams, but it has yet to be reconciled with that child’s long-term welfare and severed biological origins. Studies have found that many young adult children conceived via egg and sperm donation are troubled by the circumstances surrounding their conception, particularly the monetary transaction that set it in motion. Might we expect that children conceived through surrogacy will feel the same way?
One of the chief aims of public policy should be to protect the vulnerable. Yet much of the debate over surrogacy is steeped in the language of profit—be it the potential financial gains of the fertility industry or the child being sought by intended parents. Until the surrogacy debate is understood in this context, we’ll continue to speed ahead in making “profound change in the traditional beginnings of the family,” as cited by Governor Christie, without even understanding what the long run consequences might be. And that in itself is a tragedy—no matter which side of the dividing line one occupies.