Surrogacy is one of those issues that is masked in terms designed to make people look away. “Gift” and “hope” and “miracle” are words third-party reproduction operations make money on, often ignoring real medical, never mind moral, concerns to women.The Surrogacy Parenting Agreement Act of 2013 is currently under consideration in the District of Columbia. Last week Kathleen Sloan, former program director of the Council for Responsible Genetics, along with Jennifer Lahl, president of the Center for Bioethics and Culture, testified against it, arguing that it is an open door to exploitation of women. Sloan, a member of the National Organization for Women’s national board, talks to National Review Online’s Kathryn Jean Lopez about some of the dangers of surrogacy.
KATHRYN JEAN LOPEZ: Is the U.S. really the Wild West of third-party reproduction?
KATHLEEN SLOAN: It is not an exaggeration to assert that the United States is the Wild West of third-party reproduction. Most countries, including all those in Europe, ban surrogacy as an illegal medical procedure. Some countries, such as Australia and Japan, not only make commercial surrogacy illegal, but criminally prosecute it. At the national level in the United States, there are no laws on surrogacy, and its 50 states constitute a patchwork quilt of policies and laws, ranging from bans (Mich.) to legalization with regulation (Fla.) to “anything goes” (Calif.). Moreover, over the last several years state after state — from New Jersey to Minnesota, and even Washington, D.C. — has introduced legislation to legalize commercial surrogacy. [Bobby Jindal just vetoed Louisiana’s bill.] More often than not, these bills are written by surrogacy brokers or surrogacy attorneys who benefit financially from the commercialization of reproduction. Most recently, as more and more states legalize same-sex marriage, many in the gay community advocate for, support, and sponsor commercial-surrogacy bills. For these reasons, the U.S. is second only to India in the supply of surrogates. However, even India has recently placed some limits on surrogacy, requiring that the buyers (intended parents) be heterosexual and that the country of the intended parents recognize surrogacy contracts. The U.S. is a favored destination for fertility “tourists.”
LOPEZ: How are military wives hurt by surrogacy?
SLOAN: Even among countries that allow surrogacy, the U.S. is alone in that many of its suppliers (surrogates) are wives of men in the military. Estimates vary from nearly 50 percent (Texas and California, where there are large military bases) to 20 percent in other states. It is no coincidence that surrogacy brokers and clinics are concentrated in areas close to military bases. Military publications such as Stars and Stripes and Army Times are filled with ads from surrogacy brokers. Just as campus newspapers and social media are full of ads soliciting college women for their eggs, media focused on the military are replete with ads seeking to recruit “military wives” as surrogates. A Newsweek cover story on April 8, 2008, titled “Womb for Rent: The Complex World of Surrogate Mothers,” stated: “Surrogate agencies target the population (military) by dropping leaflets in the mailboxes of military housing complexes such as those around San Diego’s Camp Pendleton and placing ads in on-base publications such as Military Times and Military Spouse.”
Military wives are ideal supply sources for surrogacy brokers for several reasons: They are low income ($16-$28,000 per year), tend to marry and have their own children at very young ages (product reliability and good shelf life), their husbands are often away on tours of duty, and since they frequently move around, they themselves are unable to establish employment stability in a single location. Finally, the military inculcates its recruits with a call to serve “God and country”; this service mentality is a surrogacy broker’s dream, and makes it easier to exert emotional manipulation on these women.
The prospect of doubling their income (most surrogates in the U.S. are paid between $20,000 and $25,000 — averaging $3.00 per hour over a nine-month pregnancy) by serving as a surrogate is a powerful incentive to military wives. These women have few legal or regulatory protections, making them sitting ducks for exploitation and fraud. As with other surrogates and egg providers, they are not informed of the health risks or the lack of long-term studies on the effects of surrogacy.
There is also great potential for fraud. Those seeking to have a child through surrogacy try to use the health insurance provided by the federal government to military personnel — Tricare — which covers pre-natal care and childbirth, to cover surrogacy pregnancies. There is no policing by Tricare to determine whether a military wife is having a child with her husband or selling the use of her body — and using taxpayer dollars to pay for — a surrogate pregnancy. They can simply lie.
LOPEZ: Does surrogacy really commodify women? Or is that just rhetoric to scare people?
SLOAN: Surrogacy is a stark manifestation of the commodification of women and their bodies. Surrogate services are advertised, surrogates are recruited, and surrogacy agencies make enormous profits. The commercialism of surrogacy raises the specter of a black market and baby selling, of breeding farms a la The Handmaid’s Tale. Surrogacy reduces a pregnancy to a service for sale and a baby to a product — an “entitlement” for those with the financial means to buy one.
Experience shows that, like any other commercial transaction, the customer — the intended parent — lays down his/her conditions before purchasing the goods. For example, some agencies insist that the surrogate be married and a mother of at least one healthy child; be medically and psychologically fit; abstain from cigarettes, alcohol, and any other drugs during pregnancy; and agree to give up her parental rights after the baby is born. The broker arranges the contract, life insurance for the surrogate’s family should she die during pregnancy or childbirth, and life insurance or a will for the child should the contracting parent(s) die before the child is born.
It is assumed that there is an equal exchange in surrogacy: money paid for the service rendered. In reality, the contract between the parties to surrogacy would not exist if the parties were equal. The woman must give her entire body and all its life-sustaining systems to gestate a child. Within this framework, the contract is always biased in favor of the financially secure intended parents. The freedom of the surrogate is an illusion; the arbitration of rights hides gender, social, and class issues that make surrogacy contracts possible.
LOPEZ: If I pay for a surrogate and then find out there is something wrong with the baby, who makes decisions about abortion?
SLOAN: As a feminist who is vehemently opposed to the commodification of women and exploitation of their subordinate status globally through surrogacy and egg trafficking, providing a response to this question should in no way imply that I countenance contract pregnancy/commercial surrogacy.
Within the legal/contractual framework under which commercial surrogacy operates, a contract would have to state that should any physical abnormalities or genetic defects become manifest in the fetus during the pregnancy, the surrogate will then terminate the pregnancy. If a woman planning to enter into a surrogacy contract is opposed to undergoing an abortion, then she must not sign the contract or move forward with the contract pregnancy.
LOPEZ: What do you wish everyone knew about surrogacy and egg donation?
SLOAN: As we’ve discussed, commercial surrogacy and egg trafficking commodify, exploit, and pose health dangers to women. For millennia, across the globe, women have been sexually commodified in a patriarchal world; developments in biotechnology now allow for the reproductive commodification of women and their bodies.
Internationally as well as nationally, deep regulatory and legal divides have fueled a growing global market in which economically privileged individuals and third-party intermediaries who benefit financially from the commodification of women and reproduction, exploit uninformed, poor, low-income, and otherwise financially vulnerable women for their reproductive capacities.
Commercial (gestational) surrogacy is embedded in a transnational capitalist market that is structured by class, gender, racial, and ethnic inequalities and by competing regulatory regimes. The same women who sell their reproductive labor and become reproductive-service workers carrying pregnancies to term under labor contracts may not be able to afford basic health care for themselves or their own children once their labor contract expires. Furthermore, there is unequal access to assisted-reproductive technologies, because the cost is prohibitive, and if it is not state-funded, then only elites and the upper-middle classes can afford to purchase these services.
Commercial surrogacy is a form of baby brokering, and the capitalist culture in the United States has generated a cult of genetic entitlement that has psychologically conditioned upper-middle-class women nearing the end of their childbearing clock to feel that they must have (and deserve) a child with whom they are genetically related. On the opposite end of the economic spectrum, it is essential to understand that women do not make decisions in isolation from the circumstances of their lives. Their class position, race, maternal status, marital status, and legal condition shape their ability to make choices.
Surrogacy and the trade in women’s eggs have become pervasive international phenomena in which women’s poverty and subordinate status increase their exposure to gender-based exploitation and physical harms.
LOPEZ: Is this one of those issues that is so deeply personal we’re likely a long way away from good policymaking?
SLOAN: Society is only a long way from good policymaking if it does not value women as anything more than sexual objects and breeders. If it continues to patriarchally view and treat women as subservient, subordinate, lesser humans “unworthy” of equal valuation to men, then the status quo will continue and accelerate, aided and abetted by biotechnology and a pervasive capitalist culture in which everything, including human beings, becomes a commodity for profit, consumption, and disposal.
LOPEZ: Should the word “donation” be dropped in all discussions of “egg donation”?
SLOAN: Egg “donation” is a complete misnomer. In the vast majority of instances, women’s eggs are sold, not donated. There is an enormous national and international market for women’s eggs, and they are trafficked on a daily basis. Egg “donation” is a euphemism conveniently used by a profit-driven industry to make it sound innocuous and beneficent, just as “conflict” is used as a substitute for “war.”
LOPEZ: Are any states getting this right?
SLOAN: There are six states that have “gotten it right” by explicitly making commercial surrogacy illegal: Michigan, New York, Indiana, Arizona, Nebraska, and Missouri.
LOPEZ: Can the nation’s capital lead a movement on surrogacy?
SLOAN: Until my participation in the sham that was called a public hearing on a commercial-surrogacy bill before the Washington, D.C., city council, I would have said that it had the opportunity to uphold an ethical, human rights-respecting law on commercial surrogacy by maintaining its existing law, but any such notions were immediately revealed as naïve and grossly ignorant of the scheme underway.
My colleagues and I arrived to discover that the deck had been stacked against us — five scheduled to testify in opposition to the bill versus 21 in support. It is extremely important and germane to point out that every single party testifying in support of the bill — fertility industry representatives, two chosen surrogates (one of whom was a military wife), and buyers — was tainted by money, whether by buying, selling, or pimping — excuse me, being a third-party intermediary. The five of us who testified in opposition to the bill — all women — were treated by the committee chair and bill author with condescension, disrespect, and dismissal. Blatantly revealing the “fix” that was in for the bill, the committee chair and others repeatedly stressed that it was not a question of whether or not the bill would or should be passed, but whether any changes should be made to it. That is not democracy; that is autocracy.
In conclusion, the answer to your question is that, yes, the nation’s capital will lead a movement to commodify, exploit, and subject women to physical pain and danger in order to promote commercial surrogacy, but it will not lead a movement to insist that women are not disposable commodities for the 10 percent (being generous here to allow for more than the 1 percent).
LOPEZ: Is this an issue where “pro-choice” and “pro-life” activists can work together?
SLOAN: Exploitation and commodification of women are abhorrent to all who value human rights and especially to those who care about women as equal to the other half of the gender equation. As exemplified by my very close working relationship and friendship with a woman who is anti-abortion, we are entirely united against endangerment of women’s health, commodification, and exploitation. We never allow our differences over abortion to distract us from that which unites us. As a matter of fact, our working relationship has been conflict-free and among the most harmonious of my career. As we’ve traveled around the country carrying out this work, our interactions with all whom we have come in contact — with the exception of industry representatives at an event at Harvard Law School and the Washington, D.C., city council hearing — have been respectful, cordial, and friendly. Ironically, this is in contrast to our interactions with some of our “internal” allies — those with whom we are more closely aligned politically, philosophically, and ideologically — whose internecine warfare often undermines esprit de corps among those of like mind. In sum, kindred spirits can be found among those who support and oppose abortion.
LOPEZ: Should this issue make us think differently about the connection between mothers and their children?
SLOAN: The mother-child relationship is fundamental to surrogacy and third-party reproduction. Throughout human evolution, women have conceived, gestated, and given birth to children, and that relationship and its bonds form the foundation of all human societies. Without women, human beings would cease to exist. While sperm and egg create an embryo, without a woman’s body — not simply her uterus — embryos could not develop to maturation, allowing them to be born as viable human infants. Through the course of a nine-month period, a pregnant woman’s blood, nutrients, and oxygen pass from her to the developing fetus. As Annie Murphy Paul’s recent book Origins: How the Nine Months before Birth Shape the Rest of Our Lives documents, even when a pregnant woman’s own egg has not produced the embryo, her cells and their component DNA pass through the placenta, contributing her own “essence” to the developing fetus. Thus a “gestational carrier” is very directly related to the child who ultimately emerges. To deny this is to turn human beings into objects, manufactured for the “consumption” of those who have the money to buy them — regardless of sexual orientation — while the woman who was used in this process is no different from the woman whose body is used to provide sexual gratification for men through the commercial transactions of prostitution.
LOPEZ: What’s your hope for reasonable common ground on these issues?
SLOAN: I don’t know that there is common ground on these issues. If infertile heterosexual couples and gay men insist on using women to produce a biologically related child for them, while refusing to acknowledge the commodification and exploitation of vulnerable women this represents, then they have chosen self-gratification and an entitlement mentality over the recognition of women’s humanity and human rights. As Harold Cassidy, the attorney in the famous Baby M case has said: “Rich women will not be flocking to offer themselves up for use as surrogates.” A world that commodifies and uses women — whether as sexual objects or reproductive commodities — is not a world worth fighting for.
— Kathryn Jean Lopez is editor at large of National Review Online.