Single Mothers and Varieties of Fatherlessness

If a woman is a single mother some might say that her child is fatherless.  I think this is often the equation drawn in the media and I think that it warrants some scrutiny.  This is brought to mind by the confluence of a couple of different things.

First, there is the discussion of single-motherhood I began here last week with that article from the NYT magazine.   In the course of that, I learned of another blog, O Solo Mama, which focuses on being a single-mother.  And that got me thinking a bit more about women who choose to raise children on their own.

Then there is a class I taught.   We discussed a reading by Martha Fineman called Images of Mothers in Poverty Discourse,  which you can find at 1991 Duke Law Journal 274.  (Yes, it is a cite to a law review article.  I think it might be my first.   And it may not be as readily available as some thing I can link to, but it’s very good if you can lay your hands on it.)   One point of the reading (written in 1991, but applicable still today) is that we attribute much harm to single-mother families.   And the cure we often seek is to assign the single-mother family a man to be the “missing” father.     Alternative solutions (good child-care, flexible workplaces, adequate health care, general parental support services) are rarely considered.  

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.

Commercial Surrogacy Again, Thinking Harder

There’s been an interesting exchange over on an earlier post that I wanted to move into the main section.    There are good points raised there that bear consideration.

I generally find surrogacy troubling.   At the same time I recognize its importance.  For some people–women who cannot carry a pregnancy themselves and gay men, for example–it may be the only path to creating a genetically-related child.

It’s easy to say that people should not be so hung up on the genetics and should just adopt children.  Perhaps in a better world we would all feel and act that way.    But the reality is that we do not all feel that way, and I have elsewhere argued that the law ought to deal with the reality of people’s lives.   Beside that, surrogacy is very likely here to stay.

All of this leads me to want to think harder about what exactly it is that bothers me about surrogacy. 

The Price of Commercial Surrogacy

My last substantive post looked at the effect of commercial surrogacy on the women involved in a surrogacy arrangement.   (The two women I’m thinking of would be the surrogate herself and the woman hoping to become the mother of a child the surrogate might bear.)   Put briefly, it seems to me that commercial surrogacy increases the likelihood of unproductive rivalry between the two women.

The contrast to consider, I think, is between surrogacy in the US (where commercial surrogacy thrives) and that in nations where commercial surrogacy is prohibited (the UK and Canada, say).   I’m think an exploration of this would be quite useful.   And I’ll do what I can in the coming days.

Before setting out on that task, however, I wanted to offer an observation about US law.   As I’ve said any number of times, it varies considerably state to state.   Many states (my own, Washington, among them) does not permit commercial surrogacy.

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.

Gender and Surrogacy, II

The first post in this little series focused on the seller/provider in surrogacy. She is (almost?) always female. Now I want to look at the buyer/consumer side.

At first blush it might seem that men need surrogacy more than women–after all, most women can get pregnant and men cannot. But that would only be true if you only thought about about single people. Single people aren’t the primary consumers/purchasers of surrogacy. For the most part surrogacy consumers/purchasers are couples. Couples who for one reason or another prefer surrogacy to adoption. (I’ll need to come back to that preference.)

Let’s divide couples into three categories.—gay male couples, lesbian couples and heterosexual couples. Gay male couples might well be interested in surrogacy because neither of men in the couple has a womb to offer. Heterosexual couples would be interested in surrogacy where the woman in the couple couldn’t carry the pregnancy herself.

Perhaps Pregnancy is Not Uniquely Female After All?

Only yesterday did I write, without qualification that pregnancy was “a uniquely female” experience. And now there’s this story zipping all over the web, about a pregnant transgendered man in Oregon. I suppose this demonstrates that my usual insistence on qualifying every statement is probably a sound one. (This is a link to the original story published in the Advocate, a gay monthly.)

What to think? Does one pregnant man invalidate my earlier arguments?

I don’t think he does. Even if pregnancy is not uniquely female, it is nearly so (at least for the time being). I’ll modify my earlier assertion that a woman who gives birth must be a parent and say instead that a person who gives birth must be a parent. But I’ll stand by my assertion that (generally) men and women are not similarly situated with respect to the possibility of pregnancy, and I’ll stick with my assertions about what follows from that. I think only women will be hired as surrogates for the foreseeable future.

Beyond that I have been careful not to make generalizations about men and women as parents. While pregnancy is enormously important at the beginning of a child’s life, the longer the child lives, the more pregnancy becomes just one part of the pattern of parenthood. In the long run, I don’t believe there is or should be a gendered division of parenting functions. (This is part of what makes pregnancy so tricky for me–because at the beginning parenting is gendered .) A man can be a nurturing and tender parent and a woman can teach a child how to throw a ball. And transgendered man can be as much a parent as any one of us.

PS.  I’ve got a different post on this on my other blog, should that be of interest.

Gender and Surrogacy, 1

I’ve been skirting this topic for a time, in part because there is so much to say it is hard to know how to begin. Plus, so much excellent analysis is already out there. Nevertheless, here goes. This takes me back to my recent thread on surrogacy. (I know there have been a lot of “current events” type items recently–it’s just the way the world is.)

Some time ago I wrote about an obvious asymmetry. Women and men are differentially situated with regard to the process by which babies are born. Pregnancy, as a uniquely female experience (though not a universal one), must be accounted for even though it should not be over-emphasized. (Pregnancy does not make women uniquely qualified to be parents. Women are not better parents because (most) women can become pregnant.) So how does this matter in surrogacy? Several ways.

Surrogacy and Intention

Last time I began considering the idea that only real application of the idea of intended parents might be in surrogacy cases. This seems to me to be an important insight because many people–and in particular many feminists–find commercial surrogacy problematic. ( I do not mean to suggest that all people who find surrogacy problematic reject it, but rather that people who find it problematic have to give it careful thought before reaching a conclusion. You have only to look at the earlier posts on surrogacy outsourced to see why people might find it problematic.)

If parenthood by intention is useful only in surrogacy cases, then we might think differently about the idea of parenthood by intention. I’ll come back to that in a later post. First I thought I’d take a few moments to review why surrogacy (or at least commercial surrogacy) depends on the idea of intended parenthood.

Pregnancy Postscript

(I’ve been cross-posting some of my entries to Feminist Law Professor. One reader of that blog, yf, has made some interesting comments. I’ve responded to a couple of those comments. (The tapeworm/kidney stone analogy I rejected last time was offered by yf.) It strikes me that the most recent response I posted on FLP also belongs here. I realize it might be duplicative for some particularly diligent readers, but I figure that’s not so many of you and you can always just skip this. So here goes. I’ve rewritten this a bit in case you don’t want to go read the other blog. It should just stand alone as a follow-up to my last post here.)

First, we [yf and I] seem to agree that pregnancy is an exclusively female experience. The key point I’d make about that is that this makes pregnancy difficult to analyze. It doesn’t fit comfortably within a paradigm of gender equality. And arguments about female exceptionality always have the potential to work against the interests of women and against notions of equality in general. Thus, I think people may tend to gloss over the unique significance of pregnancy because it raises so many complicated issues. I think it is a mistake to do that.

Second, taking up my own challenge to think about pregnancy more carefully, I move to the parenthood question.