"Surrogate motherhood," or surrogacy, "gestation for others" in French, "motherhood by legal substitution" or "by proxy" in Italian, "gestation by legal substitution" in Spanish "motherhood by interposed person" in Greek, "innkeeper mother" in Hebrew, "borrow-motherhood" in German, "carry-motherhood" in Dutch,[6] is just one of the many ways for infertile couples or individuals to try to have a child, involving the help of a willing woman. Surrogate motherhood does not take place in only one way, but is a varied practice basically consisting in an agreement between different subjects (singles or couples of the same or the opposite sex) and a woman who bears a child for them. According to the agreement, the natural mother will then sever her parental ties to the newborn (at birth or soon thereafter) in favor of the intended parent(s), who then become the primary caretaker(s) of the child and also—by various procedures—its legal parent(s).
It is sought especially in cases of infertility of the woman if she has viable eggs. Generally the "surrogate mother" gets pregnant using the intended father's semen—but in surrogacy the intended parent(s) are not necessarily the genetic parent(s), nor must the intended mother necessarily be infertile or with health issues impeding her pregnancy. It is also the only way to obtain a child for gay men who do not want to share parenthood with a woman. Surrogacy is sometimes called "contractual pregnancy"—which is inappropriate because a valid contract is only a special case in surrogacy, as only few jurisdictions grant its validity to regulate the practice. In fewer still does it provide for the enforcement of the relinquishment of parental rights by the birth mother. As surrogacy can take place both with an (informal) understanding or with a (legal) contract, we will generally call it an agreement. The woman who bears a child for others can have various motives, as the specifications "commercial" vs "altruistic" surrogacy indicate.
In the past, arrangements like these were unusual, since informal adoption was much easier and the "adulterous," out-of-wedlock pregnancies that constitute surrogacy agreements today were heavily stigmatized. In modern societies with rule of law, this arrangement can legally work only in three situations: if the surrogate mother is unmarried, otherwise her husband will automatically be registered as the father of the infant (though his paternity can be contested by the genetic father); if she can give birth anonymously; or if the law explicitly allows for the recognition of surrogacy arrangements. This means that surrogacy is possible not only in the absence of a norm regulating it, but even in situations of prohibition. The simplest way is when the birth mother does not recognize the child (if legally possible), allowing for its recognition by the genetic father, or when she figures as the legal mother, but de facto relinquishes the child to be reared by the genetic father and his spouse or partner. The Napoleon Code of 1805 allowed for "accouchement sous X" (delivery under anonymity), a possibility that has since been legal in France, Italy and Luxembourg, and recently introduced in Mexico, Germany, Austria, and the Netherlands.[7] "Safe haven" laws permit anonymous parturition in nearly all the US and in the Czech Republic. Under these provisions if the natural father—as the genetic father is commonly called—recognizes the child, his wife can become its legal mother. These countries are rather the exceptions. In countries based on common law, with a Birth Register, only the woman who gives birth can be the legal mother; and another woman can become a mother only by adoption, even if she is the wife of the natural father, and even—in contemporary times—if she is a genetic mother, that is, the egg contributor.
A very rare extra-judicial testimony of an early case of surrogacy comes from the '70s in the Netherlands.[8] Juliette Zipper and Selma Sevenhuijsen recount that a woman of the feminist movement gave birth to a child conceived with her single ex boyfriend on his behalf. The man then raised the child without a close mother figure. It was all perfectly legal, as he had the written permission of the mother to recognize the child, which in the Netherlands is requested when parents are not married. He later obtained sole custody. "We never considered her arrangement concerning parenthood a relevant issue for feminism," conclude the authors, who personally knew the people involved (Zipper and Sevenhuijsen 1987, 118).
This kind of surrogacy, which did not even have a name and now is called "traditional" surrogacy, had the beauty of simplicity: no splitting of the mother figure was yet possible. The woman carrying the child was universally recognized as its mother: half the genetic material was hers, she bore and gave birth. That she should renounce her prerogatives as a mother could not be taken for granted by the intended parent(s): the last word was hers. Where surrogacy is unrecognized or forbidden by law it is still like that: the agreements cannot be prohibited by contrary authorities since they go undetected.
It was the Michigan lawyer Noel Keane who invented the expression "surrogate motherhood" and popularized the practice in the US by setting up an agency for intermediation. He got the idea in 1976 from a piece of news regarding a gay man who had a child in San Francisco by a woman whom he paid 7,000 USD to be let alone in raising their offspring. Keane started in the same year: while the surrogates were reimbursed with 10,000 USD, his center got 7,500 USD just for intermediation and legal paperwork. He advertised it on the Phil Donahue television show and, even after the exposure of the dangers of these agreements in the Baby M case, which he had arranged, he found scores of willing "surrogates," whom he matched with infertile couples in intermediation centers all over the US.[9]
In the second half of the '70s, IVF and embryo transfer were engineered, and from the end of the '80s surrogacy increasingly involved the use of these assisted reproductive technologies (ART from now on). But to define surrogacy as just one ART among the others is completely mistaken, though indeed very common. One example is Ciccarelli and Beckham (2005, 49) calling it a "new technology." Sometimes surrogacy is even called a "treatment" for "infertility," which in fact is not an illness, since the infertile body is per se absolutely healthy. Like most remedies for infertility, surrogacy is definitively not a therapy. A possible source of this confusion is that surrogacy agreements have been forbidden by the laws regulating ART in many countries, such as Italy, France, and Germany.
In sum, surrogacy is the arrangement to use a woman's bearing capacity, and essentially is neither an ART or a contract. Some authors already take for granted its use only to avoid pregnancy. This does not currently seem to be the norm, but could become a more frequent development.
Together with the use of donated gametes, surrogacy is called "third-party reproduction," a terminology that indicates that to overcome their couple infertility, the would-be parents need a third party, somebody who is biologically contributing without becoming a social parent. Still, "third-party reproduction" is a very questionable term, as it lumps together sperm donation, egg donation and surrogate motherhood. The procedures are of course very different: if the third party is a man, his contribution is his sperm, pleasurably detachable from the male body.[10] If the genetic third party is a woman, her egg must be accessed with laparoscopy under anesthesia. In surrogacy, despite the wide use of the disparaging synonym of "wombs for rent," a whole woman is needed to complete the pregnancy process, which is long, inconvenient, cumbersome, risky and painful at delivery and often also before it.[11]
In general, our much relished principle of equality between the sexes has no meaning in human reproduction. Not only is it inappropriate to use concepts of equality or equivalence between the sexes in their biological role in this matter, but, as our culture is so strongly pervaded by ideas and ideals of equality, we risk blinding ourselves to the evident lack of proportion in the male and female contribution to reproduction,. My discussion with a friend about surrogacy ended nonsensically when, answering my rather commonplace remark that men cannot have—in the meaning of "make"—children, so they should respect the will of women in this matter, she replied: "But that is not fair!" Her view implied that there is a right for men to procreate with their sperm: but who will have to fulfil the corresponding duty and how? The jurist John A. Robertson (1983a, 1983b, 1986[12]), an advocate of surrogacy contracts, argued that the US should apply the "equal protection" principle, inscribed in the Fourteenth Amendment to the Constitution, to surrogacy as it otherwise would discriminate among fertile and infertile individuals, and among these between infertile men and infertile women. He would like to configure a right to noncoital reproduction that would in parallell allow the artificial insemination of women to remedy men's infertility, and surrogate motherhood to remedy women's infertility.[13] Again, whose duty will it be to fulfil this hypothetical right? No one can be forced to contribute, either genetically or much less with their whole bodies (that is, with a woman's body) in order for somebody else to be able to become a parent. Not only is it impossible for such a right to exist (though, indeed, a right to reproduce through women's bodies has been asserted through most of history with the collective exploitation of women by men), but it would not even be advisable to introduce it in the present context of a growing human population, already consuming—in the most unequal way in all human history—half of the world's biomass resulting from photosynthesis (Pimentel 2001). This ecologically unsustainable situation should not be fostered with such a "right to reproduce" for those who are unable to do it without ART. The choice to be childfree should be celebrated as ecologically sound, relieving the infertile from their feelings of guilt, inadequacy and social failure—though of course the real remedy to the ecological crisis is to stop and change society's goal of capital accumulation, interrupting the capitalist D-M-D' circuit in favor of degrowth (e.g. Badiale and Bontempelli 2010).
The jurist Martha Fineman has dedicated her work as legal theorist to uncovering the problems that the diffuse legal culture of applying the equality principle between the sexes to family law have created:
The evolution of de-gendered legal rules regulating families is more than a mere change in language reflecting the aspiration that all parents, male as well as female, will nurture and care for their children. Gender neutrality has substantive implications and signals a change in orientation in which caretaking is devalued and biological and economic connections are deemed of paramount importance. (Fineman 1995, 70)
She writes against "the gender-neutral fetish of liberal legalism," that does injustice to the mother/child relations in situations of divorce or forced recognition of fatherhood. She baptizes the current situation "the neutered mother." The influential idea of the interchangeability of parents has also symbolically had the pernicious consequence of canceling from our culture the recognition of female powers in reproduction, and the pregnant woman's unique relationship with the new life that she generated:
an important component of the neutering process has been the designation of untraditional forms of motherhood as "pathological" or deviant. This stigmatizing process makes mothering outside of the context of a two-parent, traditional family susceptible to extensive legal regulation and supervision. Mother and child alone are incomplete and insufficient—the cause and perpetuators of social decay and decline. (Fineman 1995, 68, see also Fineman 2009)
A solution to these problems, according to Fineman, calls for a restructuring of our worldview because if we proceed from the idea that the cornerstone of society is an autonomous individual, we consider relations of dependency as exceptions, while they are the norm. We can find them not only in procreation but in illness, disability, old age. The whole process of social reproduction demonstrates the preeminence of dependency and care in the human relations that constitute society. Moreover, the history of late capitalism has proved that social justice is impossible to attain on the basis of the fiction of the "autonomous individual."
Similarly, taking a closer look at our idea of the family, we find that the two spouses occupy center stage: an adult man and an adult woman, both generally active in the labor market, plus only eventually their dependent children. Fineman calls this family concept "the sexual family," noting that its same-sex variant is increasingly getting legal and social recognition. But this definition of family extols autonomy and the sexual bond, excluding from its concept the necessary care to be given to dependents. The importance of care would be recognized if we adopted a different central image of the family, as basically composed of Mother and Child, a symbolic dyad exemplifying the basic ties of human dependency and care. This dyad should become our central idea of human interaction—what we call the family—while we should stop celebrating the individual (as he or she is autonomous only for a part of his or her life, and always vulnerable) and his or her voluntary sexual acts, which should not be of interest to the legislator. Fineman urges that the sexual bond must remain a private and free feature of social life, without foundational power in family law. How to organize one's sexual life should not be a concern of the state, and marriage—valuable as a private ceremony for those who believe in it—should not entail any legal value nor prescription. Besides, we must also note that not only the autonomous individual, but the sexual bond as well have proven fleeting, ephemeral, unpredictable—especially in contemporary circumstances, as the high and growing divorce rates demonstrate. The dependency bond generally lasts much longer and it is based on unforfeitable needs.[14]
The Mother/Child dyad is just a symbol (therefore the capital letters), standing for all situations of dependency and caregiving that constitute a family, and does not deny that men can be caretakers, too—though, regretfully, we do not see much of it in contemporary society. This dyad has also the cultural advantage of being an ancient symbol, and a contemporary reality, as more and more babies are born outside marriage bonds, raised by single mothers, while ex wives continue to be the main carer for the kids after a divorce.
The public support that in the US, where Fineman lives (but also elsewhere), is currently offered to couples, both materially and symbolically, should be better directed towards this true nucleus of human society. Single mothers are instead blamed for the ruin of America, while the sexual family is supported, for example, with tax reductions for the purchase of a home, splitting income for taxes, and all the similar benefits reserved to couples, that nobody questions or perceives as privileges—a fact analyzed and denounced also by the economist Nancy Folbre (2009). Exposure of the devaluation of care work in society and in social theory is a common theme for these authors and for the political campaigns started in the '70s by the feminist group Wages for Housework (see the works of Mariarosa Dalla Costa, Selma James, Silvia Federici). They theorize the profitability to capital not only of wage work, but of unwaged work, mainly performed by women in the family.
In implicit agreement with this political school of thought, Fineman is adamant that to substitute the current idea of the basic familial tie as a sexual tie between a woman and a man, with the dependency tie between Mother and Child should not mean that the social reproduction burden must always fall on mothers' shoulders (though there is a danger of this restrictive cultural interpretation). Responsibility to raise the next generation of human beings should be collectively assumed, helping the family (that is, basically the dyads) with public and collective services and benefits.
I can add that this revolutionary centering of the family on the Mother/Child relationship would have very important consequences on the way we both theorize and concretely deal with human ties, steering us in the direction of a renaissance of matrilinearity and matriarchy, as defined by Heide Göttner-Abendroth (e.g. 1980). Her studies on past and contemporary societies with matriarchal patterns describe egalitarian groups where women enjoy freedom—and not societies where power relations between the sexes are just reversed, as the name "matriarchy" would suggest if interpreted as simply the feminine form of "patriarchy." Were these ideas central to contemporary society, they would help to dispel our doubts about how to consider surrogacy—especially after the introduction of ART. Unfortunately we must start from the current and very different idea of the family as based on the sexual tie, so its concepts and labels must be deconstructed in order to be able to grasp what is really happening in surrogacy where ART are involved.[15]
As Karl Marx said, technology introduces new possibilities that re-arrange human existence and human relations. When reproductive technology enabled the implanting of embryos in wombs, even from another woman's ovum, the language of kinship acquired a new meaning, and the legal constructions based on it were called into question. The figure of the "mother," already divisible into a birth-biological-genetic mother and a social one in the cases of formal or informal adoption and of "traditional" surrogacy, endured a further split. From then on, the birth mother, carrier of the embryo/fetus, could be a different woman from the one furnishing the genetic material, that is the egg. It appeared logical that the woman whose egg has been fertilized[16] should also be considered a "mother," entitled to share the attribution of biological motherhood with the birth mother who has carried the fetus to term. For example, the jurist Alicia Benedetta Faraoni (2002, 332–3) jokingly comments upon the "scientific revolution" that has called motherhood into question, saying that the famous Italian motto "di mamma ce n'è una sola" (the mother is only one—we have just one source of unconditional love and material support) is not true anymore: "Today one can have two, even three mothers, as the Tribunal of Rome wrote," in its decree on a case of surrogacy. These are the court's words:
In the cases of surrogate motherhood the question of "who the mother is" cannot find an answer from a scientific point of view, as both subjects appear to be causally necessary to the process conducive to the birth; both women have a biological connection with the child. What is noteworthy, instead, is the problem of defining who will be the person having the duty to care for the newborn after delivery, and which of the two women should be considered socially responsible.[17]
But there is no ambiguity. The doubt and the confusion about exactly which figure is duplicated in this kind of ART stem from language, not from a supposedly essential modification of the biological process of procreation inaugurated by ART. Our languages have been forged over the ages in which the technical possibility of separating egg contribution and pregnancy was inexistent. The divisibility of these acts through ART has given rise to conceptual problems, as language does not change so easily, and the same word "mother" now stands also for a new concept: the egg contributor.
"Gestational surrogacy" (also called "full surrogacy") comes in two forms: either using the future social mother's egg or a donor's egg. Using an egg from a woman other than the surrogate is a practice that has been developed over the last thirty years, and some say that it has now become the preferred one, as it can allow a couple to have a child that is genetically theirs. But the purpose for using donor eggs is to cut off the surrogate from claims of motherhood based on genetics, and purportedly even from her feelings, extolling DNA provenience over pregnancy.[18] In California gestational surrogacy seems to have nearly replaced traditional surrogacy, which was simpler both from the point of view of the technique and from the cultural consideration of the facts about motherhood. A lawyer working in Oakland with decades-long practice with surrogacy contracts affirms:
The non-related surrogate is the general case now. Usually it is the donor's egg or the mother's egg, and the surrogate is not related: they call it gestational surrogate. This happens in 90% of the cases, the other 10% is what they call traditional surrogacy and the surrogate is officially inseminated in the doctor's office, usually. Then 1% is actually doing it at home, and there are financial reasons: they can't afford the IVF procedure. (Personal interview, January 2013)
Nevertheless the true proportions are unknown, though there are countries, as we will see, that mandate the gestational form in order for the agreements to be approved.[19]
From the material point of view, the (nonmonetary) price of the surplus of medical interventions to perform a gestational surrogacy is paid for by the surrogate mother, who submits to an unnecessary surgical operation to implant the embryo, and to avoidable but obligatory hormonal stimulation in the name of efficiency. From a contemporary cultural point of view, the lack of her genetic contribution tilts the balance of power in favor of the intended parents (whether the gametes come from their bodies or from a purchase) over the centrality of the pregnancy process in procreation. It is here that the true innovation lies, and it is cultural more than technical. The first IVF with a "donated" egg and the consequent embryo transfer into the womb of another woman, did not create another "mother," the mother only by genes, but shifted the whole position of females in matter of procreation. A woman can now have the male experience of externally expecting a child that is genetically hers, if another woman bears the embryo derived from her egg. With IVF, women have assumed a role previously reserved to men, from gamete donation to the external wait. Of course there have always been similar situations: in adoption both the woman and the man wait "externally" for a child to come into their family, but the child is never genetically related to them. In surrogacy instead, for the first time since the beginning of the human species, there is the possibility for women to share the universal fathers' experience. An act of emancipation, perhaps, maybe even a step towards gender equality. But, more exactly, the emancipation from the "slavery of pregnancy" that Simone de Beauvoir dreamt about and Shulamith Firestone hoped for, is realized through the bodily engagement of another woman. As it stands now, the "barbaric act" (according to Firestone) cannot be entirely outsourced to machines—only to other women.
There is yet another concurrent for the title of "real mother," as the egg—as we have seen—can come from a third woman, a "donor," who contributes the genetic material in case the intended mother can't, and is generally not traceable. Of course this is the only possible way to proceed if the commissioning couple is gay. Lesbians seldom make recourse to surrogacy with an egg contributor, but it can happen.[20]
What place should we give to the egg donor? Aren't we disregarding her right to be called a mother, too? As she contributed the ovum, half of the DNA of the baby is hers, the baby will look like her, it will have familiar traits with her ancestors. But if we look at biological functions in gestational surrogacy, again what we have is not two mothers, but—as said—a woman taking on a male biological role: the gametes are coming from two "fathers," one male and the second female. And if the child will not visibly look like the pregnant woman when both gametes come from others, her biological influence will be there because of the epigenetic process, of which I'll speak later.
So, when the genetic material comes from a woman other than the one who carries the baby, the role of this "mother by DNA," whose egg has been fecundated and transferred to the "surrogate," exactly replicates that of a father, so IVF and embryo transfer amount to a multiplication of father figures! Also the genetically unrelated intended mother waits externally, but her situation is closer to the intended mother in an adoption case (peculiarly created with her husband's sperm), while the egg donor does not wait at all. All these pretended "mothers" have nothing to do with what a mother has always done. But a concept must be expressed in language, and here words diverge from biology, deceiving us. As this "second father" is female, we must use the proper grammatical gender: I can't speak of a woman as "another father," everybody speaks of "another mother." Nevertheless the role of the genetic "mother"—until the baby is born—is still only to have contributed half of the genetic material, nothing more and nothing less. She is waiting like a father for a woman to deliver her genetically-related baby. Therefore conceptually she is not a mother: she has neither gotten pregnant, nor will she give birth—she is just a feminine father. It is only in grammar that the position of the mother and the one of the father are symmetric, distinguished only by their masculine or feminine gender. Jacques Lacan and Luce Irigaray wrote that language belongs to the Father, as it is the capacity to create and teach symbols pertinent to power, which in our society is male.[21] Maybe they were right, or maybe they have become right in the present cultural climate and disastrous consequences of the idea of gender equality applied to the wrong issues, even to biology. The grammatical gender symmetry combined with our idea of gender equality are only confusing the two very different biological roles of the male and the female. As said, this is valid only for the period of gestation: the genetic contributor can become a mother after the birth, as the social mother of the newborn.
In fact, neutral "parents" do not exist. The contemporary use of this neutral expression, besides muddling what mothers and fathers do in their "parenting," has two more valid motives: one is a will to be inclusive of the many lesbians and the few gays that have children; the other is the acknowledgement of the appearance of "new dads," committed to rearing their children in what was previously considered a motherly way, that is without eschewing material care. Gay fathers are one prominent expression of this male desire to take care of kids. However rare "new dads" might be in reality, rarer still than same-sex couples with children, it is nevertheless a development in fathers' behavior much wished for by the mothers. According to Nancy Chodorow, the male entry in motherly care would also be useful to extol the material carer. The men who enter this "female" perspective will spread a positive view of human connections based on care, eradicating male ignorance and modifying their faith in the "autonomous individual."
IVF and embryo transfer do expand reproductive possibilities, in particular permitting a woman with blocked tubes (40% of cases of female infertility) to become pregnant by having her egg fecundated in vitro. And they have mixed up the biological sexes, as a future mother can now wait for her baby like a future father does, with no other biologically active role than the initial genetic contribution, while she helps and sustains her pregnant partner like a father should do. But it has surely brought confusion about who is who, in particular who is the "real mother." This confusion in turn has begotten undesirable consequences spilling over from the realm of surrogacy to our view of motherhood in general: the minimization and disregard for the role and contribution of the birth mother in this now decomposed process of making a baby.
But in fact, this is not new at all, as it mirrors the historical disregard of patriarchal societies for women's contribution to society in general, and to procreation (and subsequent care) in particular (Katz Rothman 2000). For example Aristotle believed and taught that the woman was only a receptical for the seed of the man, offering an environment in which the sperm would develop by itself. She was the dumb matter, he the smart form. She could therefore not have any claim to her progeny—it was really his progeny. This has served as an ideological basis for treating women as inferior beings, even in the biological act that is peculiar to them in its greatness, dangerousness and heroism: the bearing of babies.
Paola Tabet described how throughout history women's procreative powers have been devaluated as an object of exchange, to which women have been forced by male organized dominance. Women have been constantly denied the freedom and capacities of a true subject, their bodies put at men's disposal by male violence. Other second wave feminists—Phyllis Chesler, Janice Raymond, Carole Pateman—were adamant that in surrogacy the child was born to the father, as surrogacy helps when the intended mother is the infertile one in the couple. But they wrote before embryo transfer technology spread: if the infertile woman can nevertheless produce functional eggs, the child can be hers as well as his. Scathingly, Phillys Chesler (1988) refers to the intended father as "the sperm donor" and Janice Raymond (1994) as "the ejaculator," completely denying his intention to become a father, and who in fact—together with the same will of the intended mother—must be credited for having started the whole process of pregnancy. The attempt to read the social process of surrogacy as a neat conflict between the sexes, with women lined up on one side and men on the other, has failed, as women have in a sense become more like men, in their public roles and also in reproduction. The fault line is not so easy to find now as it seemed in the '70s and the '80s, although the domination of families by men has not changed much.
But the participants in surrogacy have surely multiplied! To name all the people involved in the process I have used the most common denominations—the surrogate or surrogate mother, the intended parents, the donors—but the question of what to call all these people is not trivial.
The first revolutionary act, said Rosa Luxemburg, is to tell the truth. When we call the woman who gets pregnant and gives birth to the child a "surrogate mother," we imply that she is not a real mother, she is just a substitute for the real thing. The journalist Katha Pollin suggested that she is more of a "surrogate wife."[22] "Surrogate" implies that she is not even quite up to the task, as "surrogate" is something that we can make use of, but as a second best: chicory for coffee, carob paste for chocolate, I can't believe it's not butter! for the original greasy product.
By calling the pregnant woman "surrogate" all the dilemmas that I have described before about who the real mother is, appear to be easily solved: the woman who bears a child is just an aid, a helper, she does something that the real mother cannot do, but only on her behalf. She gets paid for it! Or she does it out of generosity, or—often at the beginning of surrogacy—because she is a member of the family and sees and shares the suffering of the childless couple. One of the first cases of implantation of an embryo not originated from the eggs of the surrogate herself happened in South Africa, where the mother of an infertile woman became the carrier of triplets generated in vitro with her daughter's and her son-in-law's gametes (Slabbert and Roodt 2013, 326).
This is what the language of "surrogacy" means: the surrogate will not be the real mother of the child, in the sense of becoming its social mother: this is a relationship that will be established between the intended mother (that is the real mother) and the child. In this denomination of "surrogate," the certainty of the termination of her role is implied. As soon as the baby is born, her help will not be needed any longer. She might have further contact with the child, but she will certainly not be a member of its immediate family.
The certainty of her disappearance from the scene is deceptive: as we will see in the third chapter, laws nearly everywhere in the world consider the woman who gives birth the legal mother. If surrogacy is not inscribed in other laws that contradict this fact, the uncertainty about who is going to raise the child will remain: the surrogate mother could decide to keep the child she gave birth to in a perfectly legal way. So "surrogate motherhood" is in reality mostly just an intention. But this is not the only instance of deceptive terminology in this matter, as lexical ambiguities, euphemisms, misnomers, and words that are used with a distorted meaning are mushrooming around surrogacy.
First of all, it is a misnomer to call "surrogate mother" the woman expecting the child, as a woman becomes a mother (any kind of mother!) only after the baby is born: there is no "mother of a fetus."
"Reimbursement of expenses" to the surrogate often includes a salary, under the disguise of "foregone gains" by women who are in fact mostly unemployed.
"Biological mother" is used for the intended mother who has given her egg, as in this phrase: "The biological parentage seems, thus, to be a solid support for the legal recognition of the maternity of the intended mother " (European Parliament 2013,136).[23] But besides the biological egg contribution, there is the contribution of pregnancy, and both are in terms of "biological material." But isn't the biological effort of the woman who bears and births the child a tad bigger than just giving an egg—however risky and painful the process of egg retrieving can be? By incorrectly equating the female biological contribution in gestational surrogacy only with her egg, the law of Illinois requires the impossible: "The gestational surrogate mother certifies that she is not the biological mother of the child, and that she is carrying the child for of [sic[24]] the intended parents."[25]
"Gamete donation" in practice almost never happens, as nearly all "donors" are paid. Sperm donation, practiced since the 19th century, started to spread in the '80s, with sperm sample requests for compensation appearing on the billboards of medical school faculties. It was an easy way for the young and careless to pocket some money, and it was done especially by medical students. The act was and is pleasurable, plus men aren't usually very concerned about whether their semen is going to generate another human being or not, anyway.[26] They could even consider it as getting some extra tickets at the genetic lottery to pass on their DNA.
Then came "egg donation," hardly comparable. Ova "donors," as said, can be the same women who undergo fertility treatments and who agree to leave the mature oocytes that they are not using to other women as this reduces their bill at the clinics. So at least they will not be exposed to the risk of ovarian hyperstimulation, anesthesia and surgery just for the sake of it. In alternative, these women can be "donors" who get paid for each successful retrieval operation (not for eggs by the number) as the male sperm "donors" are. Unlike sperm donation, this opportunity to make some money comes with risks. Eggs do not come out so easily or pleasurably. The gains of male and female "donors" are hardly comparable, reflecting the respective inconvenience of the operations:
thousands of dollars for the eggs and a mere fifty to one hundred for each sperm sample. The price list for ova varies with the general level of prices (reflecting the cost of labor) of each country, but also according to the personal characteristics of providers. The list is topped by the US where, despite the attempts of the American Society for Reproductive Medicine to set a "reimbursement limit" at 5,000 UDS, about 5–10,000 USD are offered, a sum appealing to all sorts of women in need and especially to students, as it more or less matches the cost of a year's college tuition. Students who have been admitted to Yale, Harvard or Princeton can get a higher price: they are offered 35,000 USD in ads in college magazines. Also Danish eggs can command more money, as they entail the promise of a blonde and blue-eyed baby (in Sweden and Norway egg donation has long been forbidden—in Sweden since 2002 only anonymous donation is—though women eager to make some money this way can go abroad to "donate"). Asian and black donors are in strong demand in the US, where their eggs are better paid than most of the whites'. Ukraine stands in the medium-range, with a significant difference: only 1,000 USD, lower than in Lebanon, where 3,000 USD are paid per cycle. Indian women are paid 100–300 USD per donation, and sometimes the "reimbursement" goes up to 500 USD. It is interesting that in the US sperm donation is easily conceptualized as a job, while egg donation is advertised as an act of giving: "In appealing to women's sense of altruism, physicians placed much more emphasis on egg donor motivations than they ever had with sperm donors. In fact, the earliest egg donation programs incorporated psychological evaluations, in part to assess women's motivations, again a form of screening that had rarely, if ever, been required of men donating sperm" (Almeling 2011, 36). Reproduction is allowed only to altruistic females: "'Girls who just want to lay their eggs for some quick cash' are rejected" (Almeling 2011, 59).
Hormones are copiously employed in a cocktail of artificially synthesized molecules that have the same effect as human hormones. They improve the overall risk/benefit rate: women mature only one egg at a time, occasionally two, while under hormonal hyperstimulation the number of eggs that mature can reach the number of forty. With hyperstimulation, generally between five and twenty-five oocytes become eggs and are accessed by aspiration inserting a needle guided by ultrasound into the belly. Since total anesthesia is needed (or other forms, but not just local numbing), it seems reasonable to get more than just one. That is, "reasonable" from the "overall" point of view. If we consider the point of view of the woman, she is made to run different kinds of risks: besides the anesthesia and surgery for egg retrieval, she submits to hormonal stimulation which brings pain and can cause ovarian hyperstimulation syndrome, other infections and bleeding, and eventual complications from surgery. Ovarian hyperstimulation syndrome (pain, abdominal inflammation, possible renal failure and infertility, venous thrombo-embolism and cardiac instability) has even, in rare cases, resulted in maiming and death.[27] In 1% of the cases the consequences of egg retrievals are classified as "serious" (for references see Almeling 2011, 4–5, quoting the American Society for Reproductive Medicine). And it should not be taken for granted that if only one egg is accessed the woman will necessarily repeat the operation. So, as usual, we see medical interventions multiplying on their own strength: it is never enough, and further manipulation is never avoided, as the first intervention rather legitimates all the subsequent. Once medical interference has started, it even appears that the more of it, the better the result must be (the C-section is considered simply the best, despite the increased risks to the health of the mother and the baby when delivery is not problematic).[28]
In conclusion, "ova contributors" or "egg providers" are much more accurate terms than "donors." And also their male counterpart should be named "sperm providers," as they never donate anything but—in sharp contrast with the rhetoric surrounding egg contributors—are clearly in it for the cash.
The usual denomination of "intended parents" seems the only correct name in the current terminology. Intention to become parents and arrangements for the pregnancy to take place, in fact, aptly characterize the infertile couple (or the individual) who want to become social parents. Nevertheless, those enthusiastic about surrogacy find that "intended parents" is inadequate because eventually their intention becomes a fact.[29] This, as we have seen, should not be taken for granted. How exactly intended parenthood can become a fact is neither univocal nor uncontroversial.
The legal expert Yasmine Ergas is ironic about surrogacy terminology:
In a model surrogacy contract, I recently saw the uterus-provider referred to as the "embryo-carrier." It's such a relief that we don't have to use the "M" word anymore! Nine months in the womb? That's not a mother, that's an embryo-carrier. Like the sherpas of colonial yore, she carries the embryo the way they bore the bags. (Ergas 2012a)
"Gestational carrier" is also used—but we can note that the expression "to carry a baby" is of common use, though not particularly respectful of the pregnant woman, who does not in fact only "carry."
Women themselves often describe what they are doing as "babysitting for nine months," or with similar self-descriptions: in chapter 4 we will analyze both the social representation and the self-representation of surrogate mothers. In this chapter I want to make sense of what happens by observing the facts.[30] A surrogate mother may declare that she is babysitting, but in fact she is the one who is materially creating the child, that is forming itself from her flesh and bone, with inconvenience and pain, for the duration of nine months in her womb, which is nothing more, nothing less than a part of herself. In fact, the most unacceptable terminology of all for surrogacy is the "renting of a womb," whereby women are made equivalent to only a part of their body. This choice of words equates the uterus to a thing (and also a baby to an artifact), but does not occur, as one might think, only in derogatory discourse. A Californian web advertisement read "Your oven, their bun."[31] This advertisement was of course aimed at intended parents, as they are the ones who are going to spend money with the clinics and the agencies offering these baking services.
Anyway, parts of the body like the uterus remain firmly attached to a woman—as in the German quip about the "Gastarbeiter" (guest-workers) that factory owners "invited" in the '50s: "We wanted arms, but whole people arrived." Moreover, the "guests," whom German entrepreneurs wanted to employ only during the economic upturn and then send home, did not intend to go back at all, bringing along their families instead.
So even if the original intention to have a baby did not come from the pregnant woman but from the intended parents, it was she who had the baby. She can feel and behave like the baby-sitter and "return" the child to the people she feels are its legitimate parents, but—during the pregnancy or after the birth—she could possibly, instead, feel that the baby is hers. Her joy and also her responsibility. Pregnancy in general does not always start with an intention, and sometimes the intention changes, as when two lovers split. Intention is not essential to conception, but in order to have a baby, gestation—that is the woman-fetus physical relationship—is.[32] No matter how the "surrogate" feels, she has gone through the pregnancy, which is a factual relationship of dependency of the developing child on the mother's body.
Surrogate motherhood is essentially a relationship, not a matter of using things. The use of new reproductive technologies cannot cancel the persons involved. Many try to do so ideologically, but the facts are different, and the facts will not change until an artificial uterus is manufactured, a real oven to bake the baby in, an object producing human life from gametes (Bulletti et al. 2011).[33] If cheap enough it will be a good alternative to the complicated relationship of intended parents with a real woman carrying someone else's genetic child (or half-genetic child, or also not related at all).[34] In this case, money surely talks, and the baby will not be contended: the machine makes a product by its mechanical services. But who would dare to raise a child that has been borne by a machine? A human being that has developed the whole time inside a metal and plastic artifact? But perhaps, this child will be gifted, being much better "equipped" (or rather unequipped), to live the soul-less and self-destructive life of this late capitalist society.
In conclusion, "birth mother," a term I have already employed, must definitively be the best terminology for a "surrogate," because she is not a substitute at all. She becomes a mother the moment the baby is born. "Birth mother" is the denomination used in situations of adoption, it is a name that the "first mothers" of adopted children themselves are reclaiming, wanting to destroy the curtain of oblivion about the origin of adopted babies that authorities and mediators try to impose. So, though the situation of adoption is different, as the pregnancy that leads to it did not usually start with any intention, "birth mother" affirms the fact that a woman that has given birth is a mother, distinguishing her from the social mother. To keep calling a woman that gives birth a "mother" is not old-fashioned language: it is biology. To call her something different amounts to trying to ideologically deny what she has done—or rather "made" by nourishing, also emotionally, the fetus—and her paramount relationship to the newborn. She should not be forgotten, nobody should ever try to cancel her role.[35]
The possible alternative of "real mother" would be ambiguous, because of its current usage. Both birth and social mothers are real mothers. Adoptees sometimes denominate their birth mother in this way, but "real mother"—a posteriori—seems to be a much more apt term to designate the adopter, as in fact it is the social mother who has taken care of the children. She is not a "birth mother," but her rearing mustn't be disqualified.
Though there are affinities between adoption and surrogacy, in contemporary times "adopting" means finding parents for a child, while the surrogacy process centers exactly on the opposite: giving a child not yet existing to somebody who intends to be a parent. Adoption in rich countries is under strict rule and control by the state—not a bad thing, considering the conditions of "baby farms" in the past and also in contemporary poor countries. The transfer of parental rights cannot happen just by will and money: history has shown that this possibility creates markets for babies structured by economic agents that have a stake in the abandonment of the children. They re-sell the best specimens letting the others die (Balcom 2011).
Some lawyers have called surrogacy "the new adoption," as it permits skipping the queues for the fewer and fewer healthy babies relinquished, also (mostly) avoiding the requirements set for the would-be adopters or foster parents. In some places surrogacy also guarantees a more certain result, as in adoption birth mothers have a "change of heart" period, usually of several months, should they decide to rear their baby themselves.[36] Another overlapping feature of surrogacy and adoption is that in certain places, like the US and Greece,[37] the agreement can be reached during pregnancy: the adopters and the birth mother can meet, choose each other and draw up an agreement, that in any case must protect the right of the birth mother to keep on caring for her child if she wants. But also in surrogacy the outcome might not be—as originally agreed—that the social mother will be different from the birth mother, and that the mother's role will be taken over by the intended mother. It may instead happen that the tie between mother and child will not be severed by a birth mother who has also changed her mind. Is this change of mind and heart legitimate? Whom do the children belong to, from a substantial point of view? (The legal point of view belongs to the next chapter.)
Let us go back to the conundrum of the "female father." The problem initiates from the fact that a woman, the genetic mother, nowadays can occupy a position that in the long past of our species only men could be in: her biological contribution to the new baby is solely genetic. But in terms of relationships with the embryo/fetus/developing child/newborn, she is a "female father" who does not have the biological experience of pregnancy and birth. That is, she becomes a mother in the social and not in the "natural" way.
I know that "Nature" is a difficult word to employ in an essay, as it is difficult to disentangle "Nature" and simply "what I prefer." Moreover, "Nature" is used by all kinds of ideologies, from various religions to sociobiology, to exemplify their preferred arrangement of society, or just to describe the status quo, thereby justifying existing power relations. "Nature" is also a difficult concept for our society, which believes that it has emancipated itself from Her.[38] Nevertheless I want to describe "the natural way" of becoming a mother as the act of getting pregnant and giving birth. It also implies a physiological, nonmedicalized process of delivery, as a normal pregnancy is not an illness.[39]
In talking about nature, I refer to the bodily activity and the experience arising from it. The division of sexes in nature has evolved in order to mix the genetic material in the procreation of some complex species, while others are genderless or hermaphroditic.[40] The very different task assigned to males and females can't be bypassed. The "pregnant man," Thomas Beatie, who gave birth in 2008 in the US, was born female, then transitioned to socially become male by taking hormones and subjecting himself to surgery to make his body as masculine as necessary to match his perception of himself. He married a woman and they wanted kids, but she was infertile, so the couple decided that he would use his reproductive capacities in order to have a baby with an external sperm contribution: his uterus and ovaries were still intact, since their removal is not required to be recognized as a transsexual in all of the US states' law—a freedom that is fought for by transsexuals all over the world, who want the possibility to choose one's social gender without having to undergo either surgery or psychiatric control. The pregnancy occurred despite the fact that the male hormones he had been assuming for some time do influence pregnancy, though he had suspended them during it. The baby was born healthy.
This biological asymmetry cannot be treated under the general principle of equality between the sexes, as the contribution to procreation cannot be equal, and "nothing is more unjust than to share equally among unequals," as the school of Barbiana, guided by don Lorenzo Milani, wrote.[41]
The fact that the gender of the genetic-only contributors to reproduction is now changeable (only male or male plus female), has indeed the merit of clarifying that we cannot just speak about the prerogatives of the genetic mother. We must reflect on the broad subject of the role of a genetic contributor in relation to the baby. Is the genetic contributor (or "are the genetic contributors") entitled to become parents?
We can formulate the second BIG question like this: what rights should come with the genetic contribution that used to be only the father's? What to do socially about the genetic contributors to the conception of a child? Is genetic contribution enough to become a parent? Whom do the children belong to? The second BIG question can also be formulated with concepts specific to surrogacy: who gets to rear the child if the surrogate refuses to relinquish it to its intended parents? Who is entitled to decide who gets to rear the child? In sum: what is a family, what should a family be?
A first consideration is that there is no "birth father." At birth, but also during pregnancy, the genetic father could be anywhere doing all sorts of other things—or he could indeed maintain a close relationship with the future mother, and even be involved in delivery, physically and psychologically helping the woman in labor. He could also instead be unknown, or even—disgracefully—the child could have been conceived with an act of violence, with rape. This is also the reason why from the female point of view it is plainly wrong to affirm, as many say and write, that nowadays with the contraceptive pill "not only is sex possible without reproduction, but reproduction has become possible without sex" (note also that in this overused observation "sex" stands very restrictively for "coitus" alone). Sadly, reproduction has always been entirely possible without any sexual experience by the woman if she had been raped, as from the woman's point of view this is definitively not a sexual act. The bon mot reflects only the male experience of conception: coitus that ends with pleasure and orgasm. The female experience of conception has too often not entailed any sexual feeling, spanning from indifference to victimization.
The male genetic contributor to a new life becomes a father only by virtue of his relationship with the mother. If he is the husband, their relationship is officially recognized, conferring on him responsibility and authority over the children (and sometimes over his wife, as in the past). Marriage, to which the woman has consented, implies the future assumption of the father's role by her husband. Pater est quem nuptiae demonstrant (the father is the one indicated by marriage) in Roman law and in all marriages until the contemporary possibility of recognizing descendants first by blood samples (that could only exclude paternity, used since the '40s) and then by DNA analysis (which positively establishes it with near certainty, since the mid '80s) if a court so orders.[42]
In cases where there is no marriage, who decides what the family is going to be? Many legislations—all the codes derived from the Napoleonic Code—bestow the capacity to decide what the family is going to be on the single mother: the legal recognition of a child who is not yet 14 years old cannot occur without the consent of the "parent" who has already recognized the child. Despite the neutral legal language, this "parent" must always be the mother, as she is surely there with the child upon its birth, while the "father" cannot recognize something that is still in its mother's body and does not have a biologically independent existence, nor a legal one.[43] The mother thus has a priority right: she can refuse an unwanted recognition, or –on the contrary—she can request that biological paternity be recognized as legal against the will of the begetter of her child to obtain material support from him.
Marriage as a "reproductive contract" is increasingly refused by the new generations, who just cohabit. If an unmarried couple lives together, some countries consider it a common-law marriage, conferring on the cohabiting man the same prerogatives and duties towards the couple's children, or nearly the same, under the institution of "parental responsibility." Swedish law for example attributes the same status of a married couple to any couple, hetero or homosexual, living together, including responsibility over any minor who lives with them. In other countries an unmarried man must legally recognize the child as his own to be invested with fatherly duties and rights, and generally this must happen with the mother's consent (not necessary in French and Portuguese laws). Or the genetic father can be a friend, a fleeting relationship, a stranger, so if the pregnant woman does not want him in her family, he cannot interfere. Or he can be a donor, so he should likewise not interfere.
All this would be quite fine, but for a problem: courts are increasingly granting legal recognition of fatherhood against the single mother's will—and of course I am not talking of the thorny divorce cases where men did become fathers and took care of their genetic children, but of men who have contributed to the foundation of a family only with their sperm, and never had any significant contact with the newborn.[44] Even donors have been granted father's rights by courts validating their paternity suits (especially in the US). Unfortunately and unjustly, a mother's right to remain the sole parent is thereby limited. The presumed father can sue to obtain recognition of his fatherhood by a court regardless of the mother's will, arguing that the recognition would be "in the child's best interest," as this principle is also mentioned in family law and international conventions. This rather empty concept[45]—tentative at best, as it refers to the future development of an infant and of its family relationships—is increasingly interpreted by courts to be equal to "having a father." But the primary interest of the child should instead be recognized as growing up in a stable and nonconflictual environment, not with family ties imposed by a court. With whom then should the child be placed if the surrogacy agreement is not respected? The mother or the father, that is, the intended parent(s)? Must it depend on their respective wealth? Psychological stability? Attitude to "parenthood"? Can experts really forecast which of the two environments will be stable and which would be the best for that particular child?
No. Neither courts nor experts should be entitled to decide how a family is composed. The family already exists, and it is based on the Mother/Child relationship. If we recognize the relationship between mother and child and put it at the centre of our concept of the family instead of the sexual relationship between men and women, we no longer regard the family as the product of the sexual act (an imprecise concept if the woman has been forced to sex and if the parents are lesbians or gay). In terms of relationships, a family at birth looks different. The only recognizable social relationship is based on the biological fact of pregnancy: the expecting woman and her future child are the basic form of family, at its minimum. And the best interest of the child, its well-being, is to have this relationship recognized as its minimal familial unit (besides it, of course, mothers are always imbricated in a web of social relations: motherhood never happens in a vacuum). The best interest of the mother is to be entitled to a relationship that starts in her womb, and then to be able to allow (or not) other adults into this relationship. Or even to renounce this tie with the child if she really so wishes. Therefore culture and law should change their current positioning that defines the "best interest of the child" as having a mother and a father. The mother, the whole woman with her virtues and defects, is indispensable to the birth and the natural nourishment of the child,[46] who cannot really choose her, as it wouldn't be in the world without her choice.[47] But the father must be chosen by the woman: through marriage, through other kinds of covenants, "changing gender" by entering a lesbian relationship, even relinquishing the child to "intended parents" biologically related. She might be wrong, the man she chooses might not be the best possible father for her offspring, but she is entitled to choose this relationship, as she is entitled to make her own errors in her life. It would be an act of violence by the courts to impose on her a familial relationship with a man that she does not want, even if he is the genetic father of her child. It would also be an attack on the well-being of the child, who must start life in a "family" already broken, as it is plainly absurd to impose a family life on two adults who do not agree on being together. The father's (imposed) rights means in fact that the infant will be carried back and forth between two homes—as (luckily!) courts cannot impose the sharing of a home on the generating couple. But not necessarily will the legal parents collaborate: tensions, quarrels, fights can erupt between them following the rights that the court ordered to be shared. Joint custody, the arrangement increasingly imposed to affirm the ideological equivalence of the two "parents" in the children's upbringing,[48] would surely be out of place where the father is unknown to the newborn. Other kinds of custody, which according to a legal dictionary encompasses the care, control, guardianship, and maintenance of a child, are definitively out of place, too. Visitation rights also limit a mother's decisions about who should have access to her child. Contact upon reaching a certain age, if requested by the child and agreed upon by the genetic contributor, is the only possible specification of the rights of the genetic contributors, as all legal authority over the child must clearly rest with its mother. This is also in the best interest of the child because, if there is such a right as a birthright, it must mean at its minimum to enjoy a stable and peaceful environment, even if this means to grow up "without a father"—or more exactly, without the genetic father, while the social role will probably be assumed by a present or future partner of the mother. Phyllis Chesler clearly traced the parallel between surrogacy and custody cases:
Baby M is every child who has ever been physically, legally, or psychologically separated from her birth mother "for her own good" in the mistaken belief that a child needs a father, a father-dominated family, and/or money far more than she needs her birth mother, love, and freedom. (Chesler 1988, 17)
To grow up without a father does not necessarily mean lacking the male role model, as it can be found in the extended family or among friends. Even if there is no father figure in the cohabiting family, a child usually grows up with a plurality of adults among which a fatherly figure can be chosen, if the mother feels that it is beneficial for the child, who by the way will increasingly be able to express itself and its needs.[49]
So much for the totally unclear concept of a child's "best interest," that has become a fetish to impose its separation from its birth mother in surrogacy (even creating a catch 22 situation: "How could a good mother agree [have agreed] to give up her child?" rhetorically asks Kelly Oliver 1989, 100). This unsubstantiated criterion has been used in Italy to overthrow the relationship criterion, even in cases of infants, in the name of the social conformism of having a father and a mother—although in different homes!
The question of the presence vs. absence of a father is current, as formal marriage is less and less practiced, while couples separate often, and cases of separation during pregnancy are not unheard of at all. What has been shown by social research is that a large quota of the separated fathers distance themselves from their kids. The father's role is often taken up by a new partner of the mother:
In the US, in fact, after a divorce, 40 to 50% of children lose contact with their fathers. In France, it was already estimated at the end of 1985 that out of the 2 million children living separated from their fathers, 600,000 no longer met with them. In Denmark, another research conducted in the '80s found that 20% of the children did not have any contact with their fathers anymore. (Pocar and Ronfani 20083, 214)
In Italy during the '90s, one third of the children had no contact after separation or divorce (Barbagli and Saraceno 1998). Men—under present conditions—do not always show a very strong interest in their relationship with their progeny. Care work for the children is mainly performed by mothers, as time-use surveys worldwide show (e.g. Eurostat 2004, Folbre and Nelson 2000), so the relationship between mothers and children is stronger than between children and their fathers. The "need for a father" is often intended by psychologists as intervention of a third person breaking the mother-child tie. This social role represents larger commitments: it is the authority symbolizing the necessities of life in society. This role can easily be performed by a woman, and in fact there is often a polarization of the two mothers in a lesbian couple: one with an affective-permissive role and one with more impersonal rule-giving tasks. But in this debate, many speak of a "male role" consciously having in mind the traditional male—on which I have extensively written in Italian, so I can now quote Martha Fineman in English instead:
Socially "appropriate" male gender behaviour is often characterized by feminists and others as punitive, repressive, and dismissive of women. Men, either as fathers or as sons, might more appropriately be concerned with how we might act as a society to change this dominant imagery of masculinity. If fathers fail to challenge the violent and misogynist aspects of the culture, a question might arise as to what is the purpose, or point of providing them access to children? (Fineman 1995, 206)
But many feel that genetics and intention should prevail on the mother/child family tie. History unfolds in curious ways. Genetic fathers, who have historically used "intention"—or rather, their lack thereof—to deny women they made pregnant their care and support for the ensuing child, now want to use "intention" as the one and only parameter to attribute parental responsibility when surrogacy agreements fail. When women fought for a right to sue for judicial declarations of paternity forcing men who got them pregnant to marry them, their aim was to get material support from "runaway fathers," in order to maintain a social status that the life as a single mother would have destroyed. The Napoleonic Code did not admit paternity suits precisely in order to protect "wealthy and inexperienced youth" who could be dragged into fatherhood and its disbursements "by fallen women without scruples."[50] Nevertheless a paternity suit can still be what the mother wants, trying to obtain material help or to win back an ex-lover through his responsibility for the infant. The Italian jurist Ines Corti comments on this:
The will to procreate is not decisive in matters of paternity attribution—but this again is not an absolute principle, rather one tied to social circumstances: its basis is the protection of the mother who suffers from social and economic problems in absence of a father, so if she wants the natural father to share his responsibility in procreation (not having used contraceptive devices), then society supports her claim. From this an absolute principle of truth in matter of procreation does not descend. (Corti 2000, 210)
Here the proposal of Fineman for collectively contributing to the rearing of children could cast a different, less legitimate light on this claim. But on the contrary now in the US and in the UK the state tries to identify the genetic fathers or the new boyfriends of single mothers in order to impose on them the financial burden that the languishing public sector of this neoliberal era does not want to shoulder anymore.
When single women in the past wanted their babies to have a father by turning to courts, heterosexual social relationships were marked by homosociality, and the family was mainly an economic and productive unit. Therefore it made sense, economically and socially, to force an unwilling man into marriage—marriage was in any case often arranged and even imposed by the older generation. Scant attention was given to the quality of sentimental relationships in choosing a lifemate. As women started to be more economically independent, family relationships changed, and love marriages with reciprocal feelings came to be preferred. But until quite recently the legal status of being married trumped any true will of the spouses whether to be sexual with each other, so a man could pressure an unwilling woman to marry him. He could then rape his wife, as she would be legally obliged to have sexual relations with him, all this coming under the concept of conjugal duty. Great masterpieces of 19th century literature have described these attempts: don Rodrigo tries to marry Lucia against her will in I promessi sposi by Alessandro Manzoni, and the Comte de Guiche tries to force Roxane first to marry a complacent man and then himself in Cyrano de Bergerac by Edmond Rostand.
This is the world that "we have lost" (luckily, I'd say). The women's revolution in the 20th century extolled the importance of being true to one's feelings, and to live feminine lives that are free from coercion in intimate relationships: marital rape has been denounced as a crime by women's movements, and the CEDAW has spread this notion around the world, helping local battles: now marital rape is outlawed in most countries. The concept of a family based on bonds of affection is prevailing, and the law should finally recognize it.