My child was intended. Meaning—I intended his life, and intended to parent him. There was a decisive moment when we entered into “the process” so to speak. So I remember what it feels like to gaze wistfully at other people’s children, what it feels like to think, “yikes, what if it doesn’t happen for us?” The question was settled blessedly early. Getting and staying pregnant (at least this time around) was no problem. But certainly, I know how overwhelming that impulse is. I understand really wanting a kid.
I wonder, in hindsight, what lengths I might have gone to in order to get one. IVF? Maybe. Adoption? Sure. Surrogacy…..? That one gives me pause. Could I really ask another woman to go through this (NSFW!) for me? I outsource many essential functions in my life: I have a hair stylist, a cleaning lady, a plumber. But is this really a task that I want to delegate? For one thing, cutting my hair and scrubbing my toilet don’t require the maid or my stylist to strip mine their own bodies.
Elton John got me pondering this. I don’t normally spend much time on Sir Elton, but this caught my eye. He and his partner just welcomed a son, via surrogate. They had been denied an adoption due to Elton’s age and sexuality. So, surrogacy was the next step. The sexuality thing complicates the issue, this isn’t just about women’s or children’s rights; there is a civil rights angle to consider. Adoption is heavily and often arbitrarily policed, really the only realm of child-bearing/procurement that is. It is, sadly, easier to buy a kidney than it is to adopt a child.
In a world of spotty birth control, many, many pregnancies are “unintended” so to speak, and surrogacy could not be more clearly differentiated. There are multiple parties, ostensibly intending the same thing, but the thorny and ill-defined nature of parenting often frustrates the best of “intenders.” Parenting often defines itself along the way; we become the parents that we are, by doing and being, not by making plans to do/be. It’s something that I didn’t have to be super-specific about given the way that our child came into the world. Children have a way of re-orienting one’s sense of control and sense of foresight. Anyone who has tried to have a civilized restaurant meal with a two year will agree. I wanted to be pregnant, but my reasons for wanting that were ill-defined and shifting. My child is now three, and my intentions for parenting are redefined almost daily. I can only imagine that a woman, paid to carry someone else’s fetus to term, might have a change of heart somewhere along the way—maybe this is just one area of the law where intent is never easily assigned. This is one form of intent that cannot be contractually fixed.
As you wade into the conversation about surrogacy, the question of intent comes up a LOT. As someone who sets intentions and frequently re-focuses them mid-stream, this gives me anxiety. And as surrogacy concerns other people (at least one of whom is un-consenting), the need for clear intention comes to the fore. There are various parties to consider: buyer (note: not my term! but this is both parents involved, assuming that there is more than one), surrogate, child, and then the larger community that surrounds them all. What does surrogacy do/allow for each of these parties? What does it preclude/compromise for each?
This is a difficult discussion to come at, given the wide number of variables: is the “buyer couple” hetero or homosexual? Is the baby from their genetic material? Is the surrogate mother’s genetic material used? Or is it simply a “gestational arrangement”? Is she compensated? Is it an “open” arrangement? If there is a written contract, and it is executed in a state that even allows or this–how is the contract structured?
Most states do not actually have provisions in their legal codes specific to surrogacy (D.C. prohibits explicitly; Florida and Nevada permit, but only for married couples—thereby de facto excluding gay couples; Illinois just permits; Indiana prohibits; Massachusetts permits; Michigan law comes down strongly against compensated surrogacy, etc.) so courts and parents are left to infer the legality of a surrogacy contract based on the case law related to it, and that case law stems from custody disputes between buyer couples and host mothers. How sad and odd to have the legality of your parentage defined through a fight.
State laws are fairly moot though, since you can circumvent them by crossing state lines to find your surrogate—obviously, if you have the money to do it in the first place, you have the money to take it to that next level. Which brings us to the money question… The class disparities involved are the most disturbing elements to this whole conversation. There is simply no getting around the fact that surrogate mothers and overwhelmingly poor and “buyer couples” are almost always upper income. Pregnancy is physically devastating under the best of circumstances. To say that surrogacy commodifies the host mother’s body is to understate the case by far. Host mothers often sign away their rights to abortion (regardless of emergency), sexual contact, even the right to travel freely in and out of the country. Many find their diet limited, their bodies turned into living incubators. Given all of that, how do you not draw comparison to slavery/human trafficking? In a very basic sense, this is organ trafficking, the mother’s entire body becomes the sacrificial organ for donation. And to argue that a host mother will be better off for be able to feed her family from this income, is to side-step the simple human quandary: just because you offer something in return for this rape, this violation of her bodily sanctity and her basic freedoms—does that justify your offense? For both parties to consent equally to an arrangement, they have to be on equal footing, not just in the eyes of the law, but also socio-economically. If the only alternative seems to be crushing poverty, the specter of that weight crushes your personal agency—you have no choice, you must consent.
Judaic law as it concerns surrogacy is often concerned with questions of maternity—who is the real mother? Judaism is matrilineal and also clearly concerned with being able to define a child’s identity. This article focuses a great deal on the question of lineage and identity. And this site takes it to a whole new level of creepy (seriously, “Jewish eggs”??). And this one treats the whole issue in hetereo-normative terms, and sweeps the socio-economic questions under the rug. The fact is, surrogacy is a shape-shifting entity, evolving from a favor done for a friend or relative, into a big off-shore business. And all of the articles that I found seem to side-step the bioethical questions as they relate to either the host mother or the child, in simple human terms. I, for one, could care less whether or not the child ends up properly Jewish, if the process of his or her birth entails demeaning another human.