This is spurred by a substantial article in this morning’s NYT. I haven’t talked/written about surrogacy for quite a while and so perhaps it is time to circle back to the topic. I’m well aware that there is some extensive discussion under the last post (the one about birth certificates), but I lost track of that while I was travelling and this seems timely. I can only hope I’ll get back to the birth certificates shortly.
So surrogacy. There are so many things to say about it, so much to discuss. I’m going to pick a few points that leapt out at me reading the article. There are many others.
1. Surrogates prefer working with gay men than with straight couples (or I assume with single women.) I’ve read this before and I’ve even written about it, but it remains a fascinating topic. I think this can be tied back to something important about our ideas of what makes a person a parent–or perhaps more specifically what makes a woman a parent (or a mother if you prefer.) It reflects, I think, some deep cultural assumptions about motherhood and pregnancy.
Now I don’t want to overstate things here. Many women are mothers who did not give birth to their children. (I’m using an unmodified mother here deliberately. I mean mother in many of its forms.) I’m in that category myself and I am clearly a legal, a social and a psychological mother to my children. Generally adoptive mothers are in the same position.
But still and all, for some–perhaps many–women the idea that some other woman will give/gave birth to the child undermines their claim to be the child’s mother–at least to an extent that creates a certain amount of tension and unease between the intended mother and the surrogate. A woman who is using a surrogate is a woman who, in the eyes of some and perhaps in her own eyes, has failed at one of those essential tasks of women–being pregnant. That can be a lot of baggage. I don’t want to overstate this. Maybe all I need to say is that it is complicated. (As an aside, it seems to me that the position of a lesbian whose partner is pregnant is rather different from the position of a woman who is using a surrogate and so perhaps the comparison doesn’t hold.)
And that complication doesn’t exist for the surrogate working with two men. Neither of the men had any expectation of being pregnant/giving birth. It isn’t (and never was) a part of their vision of being a parent. And so all that complication is just gone.
2. It seems to me that any child growing up in gay dads/surrogacy situation will know, from the earliest days, that there is a woman out there somewhere who gave birth to her. (In the same way, children of lesbian couples and single mothers generally know there is man out there somewhere.) While I’m sure there’s plenty of discussion of what to say and how to say it and when to say it, there is no possibility of not saying it. And there’s really no possibility that the child will be mislead because of the parents’ reluctance to discuss the matter.
This isn’t the case for a straight couple. It’s quite possible that the child will assume that she/he came from mommy’s tummy, as it were. (And of course, the mommy’s tummy assumption probably comes long before any assumption about sperm/eggs.) So the straight couple has to affirmatively take action to dispel this belief if they are planning to be honest. Again–here lies complication. When do you need to tell? When will the child make the assumption? How do you avoid misleading? (And I assume misleading is tempting, just as it is tempting not to tell a child that she/he was conceived using third-party gametes.)
3. NY’s policy of prohibiting compensated surrogacy has the effect of making surrogacy more expensive–because you have to go out of state to get it. And this means that there is less use of surrogacy, I’m sure, but that the use of it is distributed according to income. For pe0ple who have the money, there are other places to go. The only people who are really barred are those who are less well-off.
Now I understand the idea of law as a statement about right/wrong. You can read NY law as saying that compensated surrogacy is morally or practically undesirable and so we won’t allow it here. That’s a statement the legislature is probably entitled to make.
But the practical effect of it is to skew things by income and that, it seems to me, is also wrong. If the law directly aimed at this purpose–saying surrogacy is only legal for those who can pay 100K in advance–surely we’d object. How is what NY is doing different from that?
I don’t have an easy answer here. Maybe this is just how the law will always work when those with assets can travel to other more favorable places. And I don’t for a minute think that NY can forbid people from travelling. Still it does bother me. But maybe it’s just wealth inequality that bothers me–and that’s a topic rather beyond my scope here.