SEPTEMBER 10, 2019BY ADELINE A. ALLEN
Surrogacy is dehumanizing to both birth mother and child, because it reduces them to commodities. By design, it denies mother and child what they need to flourish as human beings.
Surrogacy is much in the news these days. New Jersey and Washington recently legalized commercial gestational surrogacy, while similar legislation was just rejected in New York. Kim Kardashian and husband Kanye West welcomed a second child through surrogacy, and Mayor Pete Buttigieg and his husband want a child, surrogacy being an option.
Stories of couples struggling with the deep pain of infertility are heartbreaking. Increasingly, such couples are turning to surrogacy. It can seem like an attractive option, because the genetics of at least one of the parents can be passed on to the child. Yet surrogacy is tangled up with a host of contentious issues: equality, feminism, freedom of choice, bodily autonomy, and class struggle, to name just a few.
Parents who commission a child through surrogacy certainly want the child. The longing for children is woven into the fabric of our very selves, and that desire is good. Many argue that given the circumstances—how hard these children are wanted and fought for—children born of surrogacy will be deeply loved, and that love will outweigh any other harms they might suffer. The kids are all right. They have to be. They are so very wanted.
I am not questioning the love and dedication these parents have for their children. I am rather interested in how surrogacy affects the other people involved in the surrogacy arrangement, namely the birth (or gestational) mother and the child. I have written about the public policy regulating surrogacy elsewhere, but in this essay, I’d like to explore its relationship to love.
If love is willing the good of the beloved, how does surrogacy fit into that?
Surrogacy and Being Human
First, let’s take a step back to consider who we are as humans. Oliver O’Donovan makes a compelling argument that there is a givenness to our procreation and origins, and that this givenness is morally significant. We humans are (or should be) begotten, not made. When we make rather than beget a child, we consign him to the status of a product. We become the maker, the one with superior status; the child is the product, the inferior. That is, when we beget a child, we receive the child as a human being equal to us, a gift. We become participants in creation, cooperating with God the Creator. But when we manufacture a child in a laboratory, we manipulate how he comes into being. We treat him as a product of our design, as if he were something unlike and unequal to ourselves.
What steps are necessary for a child to be born through surrogacy? These days, gestational surrogacy has just about replaced traditional surrogacy. In gestational surrogacy, the baby is conceived through IVF (using the genetic material of the commissioning parents, a donor, or a combination thereof) and is subsequently implanted in the birth mother’s womb. She then carries the baby to term, gives birth to the baby, and hands over the baby to the commissioning parents. Despite carrying him for nine months, the birth mother has no right or responsibility to the child. In commercial surrogacy, the commissioning parents pay the birth mother for her services, all arranged under contract.
These processes are shaped by a technological culture that seeks to abolish constraints, pushing the limits of what is possible without stopping to ask whether we should do everything that we can do. This technological culture treats human nature and human bodies as raw material, out of which something is to be made or manipulated. This view has been applied not only to sex but also to reproduction. If the pill has made possible sex without babies, IVF and surrogacy have made possible babies without sex.
Surrogacy and the Birth Mother
What, then, would be for the birth mother’s good, for her flourishing? She is referred to in surrogacy contracts as “the gestational carrier.” And yet the embodiment of pregnancy matters a great deal. That reality is eluded by the word “carrier.”
That is, while the baby is his own being, he grows inside the womb of the birth mother. There is a shared life between the two, and a resulting bond from it. To begin with, during pregnancy, what the mother eats, drinks, and experiences affect the baby in the womb. One medical sociologist says, “If you are pregnant with a baby, you are the mother of the baby that you’re carrying. End of discussion. The nutrients, the blood supply, the sounds, the sweep of the body. That’s not somebody standing in for somebody else to that baby. That’s the only mother that baby has.”
To be sure, the child’s genetic make-up (often that of the commissioning parents) is indisputably important; it is fundamental to his or her identity. But the growing science of epigenetics and fetal origins has allowed us a glimpse of the bond forged in the womb. For example, oxytocin, a hormone present in higher quantities in pregnancy and released in labor and birth, positively imprints the birth mother on the baby, and correspondingly the baby on her. Fascinatingly, scientists have also found DNA from male babies in their mothers’ brains—potentially remaining there for life. Other studies have observed a similar phenomenon: the presence of male DNA in mothers’ bloodstreams, as long as twenty-seven years after birth. One science writer put it this way: “The connection between mother and child is ever deeper than thought.” These findings suggest that a child is, quite literally, a part of the mother long after she carries him in her womb and gives birth.
Social studies confirm what we know from science. Many women consider themselves to be a mother to a baby they carry in their wombs, even if the baby is not related to them genetically. The gestational tie binds them to the baby, much as a genetic tie would. To carry a child and sustain his life in the womb is to be a mother. This is not just in the woman’s head; she is objectively a mother to the child.
If we truly love and care for that woman, we must honor that reality with her. The embodiment of shared life matters, and it testifies to the biological parentage of the birth mother. The term “biological parents” in surrogacy ought to include the birth mother as well as the genetic parents.
Motherhood Cannot Be Bought and Sold
Surrogacy views pregnancy, labor, and birth as the birth mother’s “service” rendered in exchange for payment by the commissioning parents. But certain things should never be contracted away—they are too sacred.
The womb and gestational services of a woman ought not be separated from her as a person, because pregnancy or gestating is unlike other kinds of labor that women do. Motherhood is an identity that reaches down to a woman’s core. It is not and should not be thought of as an employment contract. A birth mother loses a part of herself when her intimate connection with the child is severed—and that is precisely what surrogacy does by design. In surrogacy, the child is intentionally and contractually severed from a relationship with her.
Arguments that a surrogacy arrangement is nothing other than a service contract miss this point. They are also disturbingly similar to the arguments made by nineteenth-century proponents of slavery. They were not in the business of buying and selling human beings, they argued, but rather the labor of those human beings.
Opposition to surrogacy has made for strange bedfellows. The Catholic Church opposes it, as do some feminists. Some wealthy progressive European nations outlaw it, as do some poor conservative Asian countries. One thing in common here is the recognition that treating the birth mother as a “carrier” is reductionistic of her whole person. It is demeaning and dehumanizing. She is reduced from a whole person to a commodity: a rent-a-womb, raw material. Surrogacy exploits the birth mother by objectifying and commodifying her. Jennifer Lahl, President of the Center for Bioethics and Culture, has aptly remarked, “Women aren’t just empty vessels. The womb isn’t arbitrary . . . Women aren’t breeders.”
If surrogacy is demeaning and dehumanizing to the birth mother, objectifying her and reducing her to a commodity, surrogacy is not for her good. It does not contribute to her flourishing as a human being. These women are not served well by surrogacy.
Surrogacy and the Child
As to the child, what would be for his good, for his flourishing?
The manufacturing of children in IVF and surrogacy commodifies them. It also puts our culture on a slippery slope toward eugenics. That is, if children are already manufactured anyway, why not manufacture them with desirable characteristics and specifications? Why not produce children who are more, not less, perfect? With successful modification of the genetic code of human embryos by US scientists in 2017 and by Chinese scientist He Jiankui in 2018—whose subjects were twin girls born in China—this is now possible. The technology is usually presented as one developed for genetic disease prevention, as it was for He Jiankui’s twins. But it is, frankly, equally available for the manufacturing of designer babies.
It is thus unsurprising that donor eggs, sometimes used in surrogacy, have different price tags. The eggs of an Ivy League-educated donor command more money in the market—as would the eggs of a blonde woman, or one who plays the cello, or one with a graduate degree. The baby, like the womb, becomes a commodity.
Further, if the baby is imprinted on the birth mother through the shared life of pregnancy, labor, and birth, so is the birth mother imprinted on the baby. If part of who we are as human beings is our memory—including our epigenetic memory, which manifests itself in our physical bodies—what does surrogacy deny in depriving the child of his birth mother?
One’s genitalia point to one’s children and one’s navel points to one’s forebears, Leon Kass observed. The child’s navel is a reminder to him that he owes his life to his birth mother. For the child born of surrogacy, there is only a longing in place of memory of his birth mother. She is permanently a stranger to him.
There is also the matter of high stress for the newborn baby when he is removed from the birth mother, along with the deprivation of her breast milk for him. In surrogacy, the earliest and most powerful bonds formed between a child and his birth mother are, by design and contract, severed, disregarded, and rendered irrelevant. But these are matters of the child’s identity, genesis, and well-being. They ought not be intentionally discarded.
Research has shown that children who learn that they were conceived using surrogacy often start showing adjustment problems around the age of seven. While the problems have not been characterized as a psychological disorder, the onset of adjustment problems at the age of seven is interesting, as it coincides with the age at which children begin to make sense of the concept of biological inheritance. The findings suggest that the absence of a gestational tie between commissioning mother and child is injurious to the child.
IVF and surrogacy introduce what has never been done before: “splitting [the child’s] ‘biological mother’ in two”: the genetic mother and the birth mother. This fragmentation in turn fragments the child and harms him—he cannot be raised, known, and loved by his biological parents (his genetic parents and birth mother).
If surrogacy is damaging to the child, reducing him to a commodity and dehumanizing him, surrogacy is not for his good, not for his flourishing. If love is willing the good of the beloved, we are not loving these children well through surrogacy. The idea that the bond between birth mother and child matters little is reductionistic and materialistic. In spite of the great love of their commissioning parents, the kids aren’t all right. We owe them more than this.
Surrogacy and Human Flourishing
Surrogacy is not oriented toward the good of birth mothers and children. While the desire for children is natural, deep, and good, and the absence of these children can be deeply disappointing and painful, that desire must be weighed against the costs of surrogacy.
But wanting to have children does not mean that we have a right to have children. If having children is a right, then children are owed to us. If we are entitled to them, we should be able to procure them by any means necessary. The new trend of social surrogacy, abhorrent as it is, is only a logical next step.
We must reject this argument, for its premises are deeply flawed, and its results are devastating. Surrogacy is dehumanizing to both mother and child, because it fundamentally reduces them to commodities. By design, it denies mother and child what they need to flourish as humans. This is true even when the commissioning parents have the best of intentions. These harms are inherent in surrogacy.
New York is to be commended for not allowing commercial gestational surrogacy in the state. Other states should follow suit.
About the Author
Adeline A. Allen is Associate Professor of Law at Trinity Law School.