Patriarchy needs somehow to institute fatherhood as indisputable fact, and in complementary fashion to render motherhood a matter of ideas—about what children really need, about who mothers are, about which women can be considered "fit" mothers and which unfit, about the secret, raw and therefore antisocial interior of the sacred and profane bond between mother and child.
Ann Oakley
I argued that regardless of the differences among us, all women must care about social and legal constructions of motherhood. Although we may make individual choices not to become mothers, social construction and its legal ramifications operate independent of individual choice.
Martha Fineman
Paradoxically, the biological mother may be disappearing at the same time as the biological father is reaching his apogee.
Yasmine Ergas
However, de facto surrogacy remains as legal as ever. All a man has to do is convince a woman to marry him; all a couple have to do is convince a love-starved and self-destructive woman to be their surrogate uterus for free.
Phyllis Chesler
The bourgeois clap-trap about the family and education, about the hallowed co-relation of parents and child, becomes all the more disgusting, the more, by the action of Modern Industry, all the family ties among the proletarians are torn asunder, and their children transformed into simple articles of commerce and instruments of labour.[153]
Marx and Engels
Coming to the conclusions, a review of our initial definition is necessary: before and after IVF with donor eggs the tune has changed about the whole question of genetic descent. The realization of the full potential of this technique has been slow: it did not appear immediately, or rather it was not immediately exploited in this way, but by now we have reached the point where genetic unrelatedness of a "contract child" (which has also been called a "designer child") has fully entered the social horizon of the wealthier part of humanity, a commodification also promoted by anti-discriminatory legal reasoning. I will now exclude this case, redefining the practice of surrogate motherhood as the agreement that a birth mother makes to relinquish her parental rights and let a baby genetically related to one or two intended parents be brought up in their family without her. This definition is more restrictive than the initial one, which also contemplated genetic unrelatedness. But in the course of our exploration we have discovered how close surrogacy is to adoption. In terms of relationships, they can be distinguished only by the genetic relatedness of the developing child. Birthing a baby totally unrelated to intended parents makes it undistinguishable from an adopted child, simultaneously unmasking the "intended parents" as adoptive parents. "Surrogacy" in these cases must be treated not just in analogy to adoption, but as a clear—and clearly unethical—case of it: it can't even fall under adoption regulations because it is forbidden (and wrong) to make an agreement to intentionally bring a child into the world just to be adopted, especially (but not only) if money changes pockets (see also Radin 1996). The prohibition of this kind of gestational surrogacy could be feasible, since labs and doctors must be involved to perform phoney surrogacy/real adoption of a child still to be conceived, and since in all countries it is unpalatable to risk losing a medical license for the pricey high-tech labs needed to perform IVF, it would also be effective.
We have seen that birth mothers in surrogacy entertain and act upon many different ideas of motherhood. On one side there are those who act according to the value of donating happiness to others, choosing to sacrifice themselves for a bigger purpose. They conceive of the baby as unrelated to them. On another side there are the workers, who accept or are forced into an agreement to gain money, hoping to be offered other advantages, such as the opportunity to migrate to a richer country. There are of course all the possible mixes of the two motivations in each woman. A few of these women then move to yet another position: the vision of a unity of mother and child that it is wrong and hurtful to separate: they decide to exit the agreement, or would like to. The progress in technology has been used to obfuscate that what is really happening in these gestations is what always has. "If the egg does not belong to the gestating woman, she is therefore unessential. She is not the mother, we need to redefine what a mother is," is the hocus-pocus to make the pregnant woman disappear. But she is there and she is not an incubator, she feels, thinks, and wants to decide. She is the birth mother, and she will take decisions that everybody else must pay respect to.
On the side of the intended parents there can be all kind of attitudes: I have no doubt that many "egalitarians" (as Ragoné calls them in contrast to the "pragmatists") respect the decisions of the surrogate mother, treating her well and maintaining respectful contact during pregnancy and after, as mothers generally value it. But especially in contracts the tendency to impose the intended parents' will is evident, perhaps implicit in the self-sacrificing role of the surrogate. Intended parents justify their pretensions with their disbursement of money. It is in order to save it or to enter into more favorable agreements that some rich, or middle-class people from rich countries go abroad, running the risk of creating "suspended babies" who will suffer even more if juries do not act in a humanitarian way, condoning their unlawful actions. Some intended parents claim that surrogacy is always ethical if one only avoids the countries where exploitation appears obvious. Others simply choose the cheaper option.
The subjective meaning of surrogacy for the woman and for these intended parents stretches apart as much as the social and economic gap between them. These visions are difficult to reconcile, especially if a contract makes intended parents feel entitled to a "product" in the form of the delivery of a (healthy) child. The contract encourages the intended parents to consider the birth mother as a worker. If it is valid, they are legally allowed to expropriate her of her "product," even if the subjective experience of the surrogate mother is not that she has been working for somebody else, but doing a good deed, giving the gift of life to people who can't have children of their own (but if other people are making money out of it, I would certainly consider her an exploited worker, despite her subjectivity[154]). She is in fact doing an exceptional act, that can be asked and hoped for but not required, coming from exceptional women in exceptional circumstances. The approach of the intended parents should be the respect of the true will of the woman who goes through the pregnancy process—regardless of whom the ovum belonged to. This would also mean that, from the ethical point of view, surrogacy should not be considered work, that is, as an obligation. If women are forced to do it through economic necessity and would argue for a right to work in this way, there are two reasons to refuse it. The first is the protection of the rights of laborers, by not accepting the legalization of work that is invasive of the body to such a degree. The second reason—if the labor rights of women are already compromised, as in poor countries—is that this job amounts to baby-selling, with a detrimental effect on society.
But anything can become a product, even friendship, as Arlie Hochschild has shown in her work Outsourcing the Self (2013). In the contemporary US the marketization of personal relationships is so advanced that even "friendship" can be bought at Rent-a-Friend agencies. Why not babies? Because Arlie Hochschild has also shown how deeply unsettling the recourse to markets for creating intimate connections is. We strive for authenticity as the best way to live our lives, despite being surrounded by the lies of money, as in Karl Marx's depiction:
I am bad, dishonest, unscrupulous, stupid; but money is honoured, and hence its possessor. Money is the supreme good, therefore its possessor is good. Money, besides, saves me the trouble of being dishonest: I am therefore presumed honest. I am brainless, but money is the real brain of all things and how then could its possessor be brainless? Besides, he can buy clever people for himself, and is he who has power over the clever not more clever than the clever? Do I not, who thanks to money am capable of all that the human heart longs for, possess all human capacities? Does my money not, therefore, transform all my incapacities into their contrary?[155]
But this is not authenticity. We strive for the truth and for what is right and we strive to feel natural emotions in the same way as we strive for mental and physical health. There are commodities—goods and services—that we accept because everybody else does, because they are pillars of contemporary capitalist society, such as cheap meat and private cars, but once we open our eyes to realise and care about how things are produced, if we see nature and workers exploited, we cannot close them anymore, we must change.
The money given to the surrogate creates a "contract child" even where contracts are not valid. Public policy cannot endorse the selling of babies, nor permit the psychological burden imposed on them as grown-ups. It is not easy to find out what "contract children" think. Despite what Zelizer said about the normalcy of mixing money and affection, to be a contract baby does not seem acceptable at least to some of the grown-ups who have had this origin—though the voices that have publicly expressed themselves are few and more research is surely needed. It is well known that "Baby M" terminated her birth mother's rights as an adult and that she declared to the press to be happy to have been raised by the Sterns. Nevertheless she did not express herself against her birth mother, nor did she explain the reasons to legally cut her off. What is clear is only that she did not want to become a public figure as an adult because of her vicissitudes as a baby. People who do want to talk about their "contract child" origin are few and not so positive about the process:
It looks to me like I was bought and sold. You can dress it up with as many pretty words as you want. You can wrap it up in a silk freaking scarf. You can pretend these are not your children. You can say it is a gift or you donated your egg to the IM [intended mother]. But the fact is that someone has contracted you to make a child, give up your parental rights and hand over your flesh and blood child. I don't care if you think I am not your child, what about what I think! Maybe I know I am your child. When you exchange something for money it is called a commodity.[156]
This is clearly the view of a child of traditional surrogacy, but the same conclusion that commodification, rather than a service as a sort of baby-sitter during pregnancy applies, was expressed by a young woman in the documentary Breeders by Jennifer Lahl (2014): "I have been bought," concludes Jessica Kern. Her origin from a gestational surrogacy agreement with gametes from other people was kept hidden from her by her abusive family. When she found out, she added this injury to all the others she had suffered. Now she keeps a blog and she's a vowed anti-surrogacy activist.[157]
In another sad moment of Breeders, Heather relates how the then 5-year-old child she had carried for an infertile couple asked her why she did not keep her like her other children. She also recounts her own moment of consciousness about the injustice of her separation from the baby when her eldest daughter questioned her choice, having grown attached to the new baby her mother was expecting. A Catholic website gives a good write-down of this story:
Another surrogate said it was her daughter who opened her eyes to the oddity of the situation. Already a mother of two who had enjoyed both pregnancies and had easy births, the woman said she felt that offering the use of her womb to an infertile couple would be a compassionate thing to do, along with helping her to pay her bills and stay home with her kids. But she hadn't counted on the emotional attachment her eldest daughter would form with her unborn half-sibling.
"She loved babies," the surrogate said. "I mean, what was I thinking? I had two daughters at that point, and when my second daughter was born, it was the biggest thing that had happened in her life. It was like the best thing in the whole world to her. How on Earth did I think I could just give one away, and that she would be okay with it?"
That same surrogate—who has a relatively open relationship with the adoptive family—later recounted the experience of visiting her surrogate daughter for the first time at the couple's home, some two months after the birth. The baby had been colicky and sleepless, crying for hours a night from the moment she had been removed from her birth mom at five days old. Within minutes of being placed in the surrogate's arms, she was fast asleep on her chest, seemingly content for the first time in weeks.
"At no point did I consider how it would affect her," the surrogate said, "being a baby, spending, you know, nine months in my womb, and then five days in my arms, and then being taken away."
Five years later, on a visit to her birth mom's house, that little girl would look at her three half-siblings and observe that she looked more like her birth mother than any of them did.
"She looked right at me, innocent as could be, and said, 'We have the same hair, and we have the same eyes,'" the surrogate recalled. "'Why did you give me away and keep them?'" (Andersen 2014)
Elizabeth Anderson sums up the question: "The unsold children of surrogate mothers are also harmed by commercial surrogacy. The children of some surrogate mothers have reported their fears that they may be sold like their half-brother or half-sister, and express a sense of loss at being deprived of a sibling" (Anderson 1990, 78). Like someone has said, paid surrogacy is like selling Joe to be able to send Susan to college.
Only private and free agreements guarantee the values of the practice: offering to gestate a baby as an act of generosity. The current policy of the Netherlands, with the birth mother's decision after birth and only documented pregnancy-specific expenses can be paid for by the intended parents, seems to be a good example. How can we express altruism, even self-sacrifice, in a way that is not an expression of oppression in a patriarchal context, but that really means that these values are important for us? This is a real theoretical and practical problem, and I think it can only be solved by leaving open the possibility of free surrogacy agreements. But the agreement must be private, that is, without third parties fostering it, and not enforceable by the state. And the cultural critique of women's position in these agreements must not cease. The distorted view of reality called "false consciousness" by Marxists and by second wave feminists does exist (George Annas in 1990 called surrogacy a "powerful deception"), and in steering society in one or the other direction cultural battles are of utmost importance. People do act contrary to at least some of their collective interests, as they belong to different groupings, choosing to primarily belong to one at the detriment of the others—and in the case of surrogate motherhood, false consciousness sees generosity towards new families in cases where women's capacities are exploited: women are persuaded, or persuade themselves, to carry out an emotionally and physically dangerous act just in order to feel appreciated. My cultural critique is that surrogates are not offering "to gestate a baby," but they offer the baby itself, mistakenly intending it as an act of generosity. Their agency must nevertheless be recognized, as a voluntary and gratuitous agreement cannot be prohibited on grounds of false consciousness, while the prohibition of surrogacy as a job should be. Law is the embodiment of social struggle, and the line delimiting prohibition of commercial contracts and paid agreements preserves women's labor rights, canceling surrogacy from the kinds of work that are acceptable. Feminists in India, where these labor rights are already lost, are divided between those who still fight against surrogacy, highlighting its unacceptable conditions, those who are advocating for harm-reduction policies that would lift the condition of surrogates, and those who think of surrogacy as a resource that should be freely used by women (Sarojini and Dharashree 2010). In Israel feminists are strongly against what happens there:
We believe that surrogacy in Israel should be prohibited. At the least, surrogacy must not be allowed to becomes an accepted, routine procedure, and should provide a solution only in rare, very extreme cases. (Lipkin and Samama 2010, 3)
The social meaning of the legal configuration of surrogacy in Israel is dismal:
Removing the social, bureaucratic and economic barriers from the application for surrogacy strengthens the message that motherhood should be the center of a woman's life.
It makes the acceptance of one's infertility less and less legitimate and increases the social and family pressure on women and couples to invest all their resources in the attempt to achieve parenthood.
The widespread accessibility to surrogacy harms the currently existing social perceptions of the importance of the relationship between the mother and the baby in her womb, and conveys a social message that this relationship has no actual emotional and legal significance. (Lipkin and Samama 2010, 5–6)
As in Israel—and even in countries without contracts—if we allow the altruist to pocket some money for their inconvenience we end up on a slippery slope: at the end of the day a market in babies has likewise sprung up. Undoubtedly, the battle against commercial surrogacy, "altruistic" contracts, and paid agreements is part of the battle against the commodification of everything, from health services to education, from communications to water and all the other services that in welfare states we used to call public. And to preserve the birth of children from its appropriation by market forces is not only a part of the anti-capitalist battle, but a position widely shared by all those who want to protect human dignity and defend the freedom of pregnant women.
The same values of choice and agency that must allow for a voluntary and gratuitous form of surrogacy agreements, decisively impede the admissibility of the contract, aimed at rescinding with the force of the state the mother/child relationship. This is what Paola Tabet and Christine Delphy worry about: that the recognition of the biological importance of the mother/child relationship would condemn women to serve their children as if parenthood were a pure biological fact and not a social arrangement, that currently requests reproductive work only from women even as a part of their gender identity. But I do not think that a bettering of the social position of women, and a fairer division of labor within heterosexual families can be accomplished by denying the importance of the archetypal Mother/Child dyad, symbolically based on care and dependency of the newborn on its natural source of nourishment. Parenthood is in no way a simple biological fact—but pregnancy is, and the supremacy of the birth mother in establishing families must be recognized, especially by feminists. The rights of fathers and mothers are often unjustly leveled by law, in a matter where the woman has a nurturing, creative, indivisible and also often difficult and painful "relationship" with the egg fused with sperm becoming a baby, while everybody else, including the genetic or the social father/mother, have only an indirect one. I envision an ethic that puts relationships in the first place, relationships that are based primarily on human choice, but also on natural ties—that can be chosen because they are recognized as coming from the body, which is not our enemy but ourselves.
In cross-border surrogacy laws we are witnessing a "race to the bottom" similar to that of outsourcing capitalist production. States with laws permitting the transfer of parental authority by contract undermine the capacity of other states to uphold the principle mater semper certa est. The European Court of Justice established in 2014 a worrying precedent affirming the validity of birth certificates that falsely declare motherhood, encouraging regulations of surrogacy. To counter this blow—the umpteenth neoliberal move by the EU—an international convention should be formulated within the framework of the UN—not by private entities like The Hague Conference, which wants to recognize the laws of the "lowest bidder" and accept every demeaning condition out of a well-crafted fear of imaginary stateless babies. Its direction must be the opposite: a ban on commercial surrogacy in line with the ban on commercial adoption, fighting not only improper but all gains (that is: improper gains), to stop marketing babies (a measure advisable in international adoption, too). The visas for surrogacy should be granted only with the guarantee that the country of origin accepts the agreements, and that crossing borders with a newborn and its foreign-issued birth certificate is legal.
Overall, we must be aware that it is contrary to commonsense, and certainly not in the interest of the child—as also established in international conventions recognizing the right to family life—to conceive a child in order to separate it from its mother. If a birth mother however decides for the separation (also in adoption conventions, family life is protected "as far as possible"), she can always do it with a private agreement. Genetic-only motherhood should be put on a par with fatherhood in the possibility of recognizing a child (if its mother consents), since with the advent of IVF a legal change is necessary to end the dispute about the mother's position by the two or three women involved (egg contributor, gestational mother, intended mother). Technology has made possible a distinction that should be recognized on birth certificates: born of a birth mother, with X and Y's genetic contribution (if they are not anonymous), with the parenting right pertaining at birth to the birth mother and her affiliates.
Surrogacy is a process that touches lives very intimately, and I am not contesting the depth of the feelings of people who want to reproduce, nor do I want to deny the genuine joy of couples that find their much desired sons and daughters through the help of women who gestate for them, but intended parents should really be the first to make sure they are not stealing somebody else's baby, as the woman having it is its mother. A failure to recognize this is unethical, just an exercise in class and money privileges.
That said, something is wrong in our culture about reproduction. Childless individuals or couples are interrogated about their motives, they must justify their choices, as having kids is deemed the normal—a word meaning "compulsory"—situation. This is one important reason why the infertile suffer. The positive concept of being childfree, free to pursue other goals in life other than just reproducing the social order (children are seldom nonconformists and, if they grow up sufficiently free, more often than not start to rebel against their parents in their teens), should become much more popular than it now is (Diehl 2014). Women should feel valued for their personal qualities and not just for their birthing capacities ("This was the one thing I was good at," recalls Kim Cotton in her book). And infertility is still seen as a woman's guilt: the patriarchal mind considers women useful insomuch as they bring forth their husband's male children, his replicas, into the world.[158]
But in this historical phase there is no general interest to multiply humans. We must get rid of the pro-natalist attitude that has been part of the religious teaching in most parts of the world with the intent of multiplying followers by the cultural transmission of religious tenets, deeply rooted as learned in childhood. The root of the problem is that—against any lucid evaluation of the situation of the human species on this planet—religions, cultures, tradition, social conformity, even the media and academia pundits are strongly pushing people to feel incomplete if they do not marry and start a family. Our society is pervaded with a rhetoric of the "happy ending" of forming a family. Marrying and having children is the ultimate certificate of normality: "After marriage, what else if not babies?" declared two Chicano gays in the news, shown happily playing with their twin daughters at home.
But we should stop blaming the "childless" and celebrate the "childfree," contributing to diminishing the unsustainable impact of the capitalist world-economy on Earth, and to reducing the workforce (as in the birth strikes—la grève des ventres—in the 20s). But especially in the core countries a nationalistic alarm is instead sounding about the diminution of the birth rate (happening all over the world, if the UN statistics are to be trusted). This really sounds ridiculous especially as core countries are depleting Nature's resources at a faster and faster pace. So the first prerequisite to a fairer stance towards ourselves and Nature would be to acknowledge that there is no social need for such a large number of kids as human beings altogether are still having, and to encourage people to have less of them, or leave reproduction out entirely, particularly if their bodies are not capable. Infertility is not an illness, and surrogacy is not a therapy. In a model other than the current privatization of affection by "the sexual family" with its isolated living arrangements, the childless could participate in parenthood—there is no surplus of care, that must instead be paid for. This is a fact in our money-driven economy, but a fact that children are unable to comprehend. Barbara Katz Rothman unmasks the fiction of "money substituting for relationships" in child care:
Someone has to actually, truly, literally be there with them. Whoever that person is—mother, father, adoptive parent, sibling, housekeeper, teacher, baby-sitter, day-care worker, grandparent—whoever is with that child, that person must never be thought of as being there in place of someone else. The person who is there, is there. The person is not a substitute-someone-else. The person caring for a child is in a first-person, one-on-one, direct relationship to that child. That relationship deserves respect, just as that work deserves to be valued. And respect, as we know from what has happened to mothers historically, is not adequately taken care of with politeness and a Mother's Day card. It must come with legally recognized rights. Someone who has been raising a child has moral rights invested in that child. At a minimum, we have to protect child-care workers from arbitrary firing, from loss of visitation rights to the children they raise, from having the relationship with the child used as a source of exploitation. (Katz Rothman 1989, 103 and 2000, 144)
And that relationship starts in the womb. A new human life is formed by the fusion of two gametes, two "seeds," that mature inside a man's and a woman's body. But it is the woman that receives the male one, detached from him with sexual pleasure, and eventually also the female one, detached with surgery and pain. It is the female body that makes the conglomerate of cells grow into a newborn, generally with ache and suffering. It is her flesh and her blood that nurture the little creature from invisibility to the different stages of development, finally pushing the baby, mature after nine months of pregnancy, outside her uterus, through her vagina, out into the light and the air, finally capable of breathing and actively searching for her or his food—again mother's milk. Considering the relationship on the future baby's side, she is the only human being whom the new child knows profoundly.
Long gone are the times when women were worshipped for their birthing capacities (some say it never happened…), when the "language of the Goddess" expressed itself in symbols of the feminine, in the Paleolithic statuettes of motherly ripeness—huge breasts and buttocks—objects of wonder and adoration for the continuity of life and Nature. Women's procreative power has been harnessed to male needs, subjugated to masculine gods. Women have been enslaved in patriarchy, obliged to give birth to the male heir of their masters, on their conditions. We are struggling against all this, in order to regain power over our lives, in order to be able to make choices. We still endeavor to be seen as human on equal footing with males, the heirs to the patriarchal tradition that values them more than females—and women are still forced to bear those heirs. But today children are only necessary to the fetish of "economic growth," that is, the expansion of capital: they are the workforce and the consumers of the future, needed in growing numbers to perpetuate the ceaseless capitalist cycle that, unfearful of clashes, reduces everything to money, disregarding ecology and humanity—and especially womanity.