Surrogacy Again–Tentative Language Choice?

Over a week ago I wrote that I needed to come up with some new language to distinguish between two forms of surrogacy that I had been calling “altruistic surrogacy” and “commercial surrogacy.”    The distinction is, to my mind, crucial.   But the designations I was using weren’t really apt.   The vast majority of surrogates are motivated in part by altruism, whether they work in a more generally commercial system or not.   And the majority of surrogates receive significant amounts of money, whether they are engaged in what has been called compassionate or altruistic surrogacy or not.   Thus, most surrogacy is both altruistic and commercial.

This recognition lead me to want to find a better name for the forms of surrogacy I seek to distinguish, one which actually emphasizes the difference.    I’ve been casting about now for over a week with little success.   In the meantime, I must have something to use.  So for now, though I don’t think it is perfect, I will settle on “binding surrogacy” instead of what I have been calling “commercial surrogacy.”   “Binding surrogacy” is at least a move in the right direction.   In what I have been calling “commercial surrogacy” and will now call “binding surrogacy” the surrogate is legally bound to surrender the child when it is born.

Which Comes First?

While I’m stuck on the language front (see previous post) I figured I’d turn to something else I’ve been thinking about.

Some discussions of surrogacy begin with the question of whether we should allow surrogacy. I’m increasingly inclined to say that the answer to that, at least for me, depends on what exactly you mean by “surrogacy.” But that’s actually not the focus of what I want to write about here. For now let’s just assume you mean surrogacy where the woman who gives birth is legally compelled to surrender the child. (You can leap back to some older posts for some musing on different things “surrogacy” might mean.)

The point I want now is that however you answer that question, you are also answering a second, unarticulated question. That second question is “Should a woman who gives birth be recognized as a legal parent of the child she gives birth to?” If you say we should allow the form of binding surrogacy I describe, then you must also say she is not a mother. (That’s because, as I’ve remarked a number of times, we do not permit the purchase/sale of parental rights/children.) In other words, “yes” to surrogacy in this form necessarily requires “no” to the “is she a mother” question.

Altruistic Surrogacy and the Power of Naming

Some time in the middle of March I wrote a post defining the terms I planned to use in the discussion of surrogacy.   I wanted to be clear about the differences between gestational (or host) surrogacy and regular (or straight) surrogacy.   I also wanted to distinguish between the surrogacy system in use in the UK and the system in use here in the US.  (In the UK, surrogacy is legal as long as no money is paid to the surrogate beyond reasonable expenses.)  I referred to the system in the UK as “compassionate” or “altruistic” surrogacy.    I used those terms because I had seen them bandied about.  And I referred to the US system as “commercial surrogacy” because, at the time, it seemed to me a critical and distinguishing feature of the system here.

Now that was some time ago and the discussion in this blog have proceeded quite a bit.   The distinction between what I’ve been calling “altruistic surrogacy” and what I’ve been calling “commercial surrogacy” has become increasingly importance to my thinking.   (You can see that here, for example.)   Alas, it has also become clear that those were not the best chosen terms to use. I’ve touched on some of the reasons the terms aren’t well chosen before.   But let me draw them together here.

Commercial Surrogacy–More Questions, Some Answers?

This takes up from yesterday’s post, so you’d best start there.

I want to start by making explicit one point that I think has been (should have been, anyway) implicit.   I have no problem with the surrogate receiving money.   Indeed, it would trouble me greatly to set aside this one activity which is uniquely female and then say it could not be the subject of compensation.  That simply seems like one more instance of devaluing women’s labor (forgive me the pun).

The question for me is assuming you can give the surrogate money, what is the money for?   What, exactly, are you buying?    I’ve discussed this before, but I think I can come at it from a different angle here.

I’ll start on solid ground.  I think we all pretty well agree you are not buying her parental rights.    That amounts to buying a child and we do not (as yet) buy and sell children.

Now there are two ways you can assert you are not buying a child even as you give the surrogate money.   One is to say that she is not a mother.  If she’s not a mother, you cannot possibly be buying her parental rights, because she doesn’t have any parental rights to sell.  That’s the reasoning of commercial surrogacy generally.  You then characterize the money as payment for her services in caring for the child.

The other rationale is to say that she is a mother and that you are paying expenses of the pregnancy.  It’s a bit unclear to me what you get in return for paying the expenses.   But this is the rationale for payment in what is called “compassionate surrogacy” in the UK.

A common feature of both of these rationales is that the surrogate’s parental status doesn’t change as a result of the monetary transaction.   She either starts out as a mother and remains one (compassionate or altruistic surrogacy) or she never becomes a mother at all (commercial surrogacy ).

I’ve talked about the critical difference between the two surrogacy models before.   In compassionate surrogacy, the surrogate is a legal parent of the child.  She retains the right to change her mind about delivering the child to the intended parent(s).   In the US version of commercial surrogacy, the surrogate has no right to change her mind–indeed, there is nothing she can change her mind about, since she is never understood to be the mother of the child.  Only under the latter conditions that surrogacy can exist as a significant for-profit industry.

It seems very likely to me that if you set the two models side-by-side, prospective parents will pick the commercial surrogacy model every time.   It’s better for them in that it relieves them of a good deal of uncertainty.   (Not all uncertainty, of course.   The outcome of pregnancy is always uncertain, even if the surrogate is bound.)   Given the path that leads many heterosexual couples to surrogacy–long experience of unsuccessful attempts at child-bearing–relief from uncertainty may be very highly valued.

I find the altruistic model far more appealing and there are reasons why society as a whole might prefer that model, individual preferences notwithstanding.  Altruistic surrogacy invites a better dynamic between the parties. It allows the surrogate to receive money (which I assume will increase the number of women willing to be surrogates) but at the same time emphasizes the altruistic nature of the endeavor.  it seems to me far less likely to be exploitative.  The question I am left with is whether it is really workable.   It does mean that the person or people intending to be parents must live with the possibility that the surrogate will change her mind.   In short, it requires a great deal of trust on the part of the people hoping to become parents.

Gender Irony?

In my last couple of posts I’ve been examining the ways in which surrogacy (at least commercial surrogacy as it is practiced in the US) seems to pit women against each other. I’m thinking about instances in which a heterosexual couple employs a surrogate. (If a gay male couple uses a surrogate, there’s only one woman in the process and, as I noted earlier, that seems to make things easier.)

It’s ironic (and also a pity) that the two women–the surrogate and the woman from the contracting couple–end up as adversaries. After all, part of the reasons women are willing to be surrogates is to help other women who are unable to bear children. (That’s included in every account of surrogacy I’ve seen in the popular media, including the recent Newsweek cover story.) It’s not impossible to imagine surrogacy portrayed as an instance of one woman reaching out to help a sister in distress.

It’s easy to see that a woman might feel compassion for another woman who was unable to sustain a pregnancy–given the importance of pregnancy in the cultural model of womanhood. But from the recipient’s view it is a complicated “gift” the surrogate is willing to offer. As I write this, I am reminded that I might use the term “barren’ to describe the woman who requires the services of the surrogate. Surely that is a dreadful term to use to describe oneself or another.

Shouldn’t She Be A Father?

I’m picking up from yesterday–so you might want to check that post out first.

In 1993 the California Supreme Court issued an opinion in a surrogacy case called Johnson v. Calvert. (Sorry about that link–the copy it takes you to isn’t the best in terms of format. But it is a full PDF of the opinion–the best one I could find easily.) It’s a gestational surrogacy case, which is to say that the woman who gave birth to the child (Anna Johnson) was not genetically related to the child she gave birth to. In this instance, the child was formed from the egg and sperm of the married couple (Crispina and Mark Calvert) who contracted with Anna Johnson. (This distinguishes the case from the other classic opinion, Baby M. In that case, Mary Beth Whitehead (the surrogate) was genetically related to the child she gave birth to. In the UK, this is sometimes referred to as “straight surrogacy.”)

The case was enormously controversial at the time it was decided. It remains one of the definitive legal opinions in the area, even though it is really quite specifically about California law. Without going into detail about that, I wanted to offer an observation.

Power Yet Again?

A friend and colleague posted an intriguing comment to my last post. (If you haven’t read it, you should. You’ll find it at the end of the post.) I’ve been thinking over his points this past weekend, and thought I’d engage with a few of them.

I gather one point is that a surrogate who breached a non-binding agreement might nevertheless be found liable for some sorts of reliance damages. I’m not sure I’d find that a problem. I generally think people ought to keep their promises and that we ought to rely on each other to do so. I certainly don’t think a commitment to be a surrogate should be made lightly. So the fact that there are consequences to bailing out seems fine to me. I’m thinking here of money, I suppose.

As to binding agreement, it’s an interesting thing about power once the process of surrogacy is under way. It might seem that the woman who is pregnant should hold all the cards. After all, she has exclusive possession of the fetus during the pregnancy. Her possession cannot be disturbed. And, as I noted before, she can choose to terminate the pregnancy. By contrast, the couple intending to be parents would seem to have little leverage at this point.

More on Surrogacy and Power

(I’m just picking up from yesterday’s post, so you might want to jump back and start there if you haven’t read it already.)

Before a surrogacy agreement is made it seems to me that the woman who can be pregnant–the prospective surrogate–has some power. She has the ability to do this thing that whoever is looking to pay her needs. (We could say she can “perform a service” or “rent her womb” or “sell her child” and I think our reactions will vary with the descriptions. But let’s skip that part.) She can offer it up or she can withhold it and the person or people who want her to do this for them have to make some effort to meet her terms.

Now suppose she enters into an agreement. If the agreement is one that is legally enforceable, then it seems to me from the moment she enters into the agreement on, she has virtually no power. She is obliged to follow through and turn over the child. Indeed, that is the entire point of having the agreement be enforceable. (I have to pause here and note something that qualifies what I just said. Under US law (and perhaps the law of other places?) the surrogate retains some power to decide whether to terminate her pregnancy. Let’s set that aside for now.) The fact that the surrogate is bound to comply cannot help but shape the dynamic of the relationship between surrogate and intended parents. They have the power to compel her performance and she has no counter.

Surrogacy and Power

You may have figured out by now that I tend to think as I write. (In fact, that is a good part of why I write–to find out what I think.) This particular post may be more than usually unformed because I’m really not so sure. That means that I may have to take it all back at some point. It also may mean I go rather slowly. Nevertheless, I’ll try. I hope you’ll bear with me.

I’ve been writing about surrogacy for a while now, considering gender first and then getting derailed by Newsweek’s timely cover story. One thing that consistently concerns me about surrogacy is the power dynamic of the practice. This is part of what is so disturbing to me about the practice of outsourcing surrogacy. I’m also always interested in how gender and power (or the lack thereof) intersect, and given that surrogacy is about the uniquely female ability to be pregnant and give birth, I’d expect to find issues about power and gender implicated in its practice.

Newsweek/Surrogacy II

Yesterday I noted the current Newsweek cover story on surrogacy. Here’s a bit more to think about in that regard.

I’m prepared to assume that the practice of surrogacy is useful. (Even if I weren’t, I’d have to acknowledge it is here to stay. It may be banned or restricted in some states/countries, but it will be available in plenty of others.) The question then for me is what’s the best set of rules for surrogacy. Of course, “best” will depend on your point of view. I want to try to ask the proverbial “woman question” and answer this as a feminist.

The Newsweek article invites us to focus on the surrogate’s experience as well as the relationship between the contracting couple and the surrogate. This seems to me to be critical, especially as the surrogate will always be a woman and, as I’m partway through demonstrating elsewhere on the blog, the issues for a woman in the contracting couple are also distinctive.