Surrogate Mothering and the Meaning of Family

...Ibid., p. 254...

...In trying to keep the child, the surrogate proves that she is not interested in the money, but that she is not interested in helping either...

...The court did not simply uphold the validity of the surrogacy contract...

...Norton and Co., 1989), p. 242...

...12 ' Birth Power, p. 98...

...Hence, if a surrogacy contract is upheld, it may not be for the reason some feminists would support, because it enhances women's freedom and autonomy, but rather because the traditional role of women in providing for the good of others requires that they sacrifice their own interests in this instance as in all others...

...She never makes a totally voluntary, informed decision, for quite clearly any decision prior to the baby's birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally voluntary...

...Still, it remains entirely unclear what makes surrogacy one of these...

...Whitehead left New Jersey with the baby and disappeared for three months...

...In making an arrangement with a surrogate, a contracting couple implicitly relies not simply on her desire to earn money but on her willingness to help...

...What about Baby M? In this case, custody remains with the Sterns but Mary Beth Whitehead has liberal visitation rights...

...Woman's morality cries out against severing a surrogate's bond to her child or demanding, as the Stern-Whitehead contract demanded, that she not even form such a bond...

...Those individuals who express the intention to become parents— whether through traditional means, through adoption, contracting with a surrogate, or agreeing to artificial insemination—count as the real parents and the responsible parties in the web of relationships they create...

...These relationships may not be those simply between parent and child...

...Rather, the sustaining and strengthening of human bonds lies at the core of a general ethical response to others and holds, as well, of a mother's relation to the fetuses she carries to term...

...From this point of view, what is crucial to any pregnancy is the way in which it forms an embodied relationship, one that is necessarily stronger than any external relationship between a sponsoring couple or even a father and a fetus...

...nor can they want to enter into agreements that affect the most tender aspect of their being...

...It depends only on the children's existence, and this seems to be the state of families in general...

...But a birth mother cannot know "the strength of her bond with her child" before it is born...

...If a surrogate mother cannot know that she will not feel a powerful bond with the fetus she is carrying or the child to whom she gives birth, a mother who intends to keep her children cannot know that she will feel such a powerful bond...

...According to the terms of the agreement, Whitehead was to be artificially inseminated with semen collected from Stern...

...Parents have children for all sorts of reasons and value them in all sorts of ways, whether they expected to or not...

...Surrogacy and "Baby M" In February 1985, Mary Beth Whitehead and her then-husband, Richard Whitehead, contracted with William Stern to bear a child conceived of Mary Beth Whitehead's egg and William Stern's sperm...

...In the case of surrogate mothering, this requirement means that pregnancy contracts must be considered valid and courts can require specific compliance...

...In supplying a womb and, in most cases, the egg that grows there, women provide sterile couples with the same service male semen donors provide...

...Either surrogacy arrangements devalue women's morality and the proper attachment of birth mother and child, as Anderson and the New Jersey Supreme Court believe, or they adequately represent both women's concern for the good of others and their freedom of contract, as Shalev and the lower court argue...

...But suppose the key question that surrogate mothering raises has less to do with women than with the character of family relationships...

...For others, however, pay for pregnancy, and this equation with a particularly alienated form of fatherhood, involves a devaluing of motherhood...

...If they are forced into such agreements by circumstances beyond their control, it would be unreasonable to expect them to abide by the promises they make...

...Finally, if William Stern died either before or after the birth of a child under the terms of the agreement, that child was to be placed in the custody of his wife, Elizabeth Stern.' On March 26, 1986, Whitehead gave birth to a baby girl and, deciding to keep the child, reneged on the terms of the surrogacy agreement...

...If Whitehead miscarried before the fifth month of a pregnancy, she was to receive no compensation other than expenses...

...Hence, in Shalev's view, surrogacy contracts must be understood as results of the responsible decisions of responsible agents thinking through and acting in a network of relationships...

...Children "enter the world in a relationship," Barbara Katz Rothman writes, "a physical, and social and emotional relationship with the woman in whose body they have been nurtured...

...Once we give women their due both as equal citizens and as mothers, we will know how to conceive of contract pregnancies...

...Deceitfully claiming that her current boyfriend was the baby's father, she severed her parental rights and gave the child up for adoption without her former husband's knowledge...

...In neither case, however, are family relationships dictated by what philosophers or lawyers find proper and correct...

...Of course, she may "intend" to feel a connection and it may be proper that she does, as Anderson maintains, or specifically proscribed, as the Stern-Whitehead pregnancy contract demanded...

...Surrogacy involves one of two arrangements...

...The court compromised, leaving physical custody with the adoptive mother and granting legal custody to the birth father...

...None of the complex connections at stake here between parent and child or sets of parents might have been intended...

...We do not become pregnant just because we decide or intend to do so...

...were to be considered illegitimate, and the entry of the mother's husband's name in the Registry of Births was to be condemned...

...Neither Whitehead nor her husband were to "form or attempt to form" a parent-child relationship with any child she conceived under the terms of the agreement...

...argued that "the true human love of a woman expressed itself in wanting her husband's child" only, while the desire for "just a child" reflected an animal urge...

...5 Cited in Birth Power, p. 67...

...Rather, it seems to be a crucial aspect of their meaning that they spill out beyond anything we can control, intend, or imagine...

...But for others, it seemed to belong to a long history of attempts to control women's reproductive capabilities...

...Why might a woman, then, not be a very different kind of mother to the children she lives with, those she gives up for adoption, and those she bears for others...

...l • Phyllis Chesler, Sacred Bond: The Legacy of Baby M (Times Books, 1988), Appendix A. 2 References to the New Jersey Supreme Court Decision are taken from Appendix 0 of Sacred Bond...

...If surrogates are meant to be selfless women to whom monetary compensation is a secondary good, then their selfishness in trying to keep the child they eventually bear is deeply troubling...

...In return "for services and expenses," William Stern was to pay the Whiteheads $10,000 upon the birth of a live child as well as all medical, hospitalization, and pharmaceutical expenses not covered by the Whiteheads' insurance policy...

...They can, of course, release the child for adoption, as can any couple, but they remain legally responsible for the child until they do so...

...it also vilified Whitehead, questioning her child-rearing methods, her relations to her other children, and even her sanity...

...their intentions and decisions are the ones that must be supported by law...

...Her actions thus cannot be understood as those of a "real" woman...

...For some, the important fact about such services is that they allow women to assert their bodily autonomy and to claim jurisdiction over their own procreative power...

...Contested surrogacy agreements as well as contested custody arrangements indicate the extent to which relationships thwart our original expectations...

...On it depend the peerage and other titles of honour and the Monarchy itself...

...In one case, the strength of a surrogate's bond with her newborn infant may make it impossible for her to surrender it as agreed upon...

...1 (Winter 1990), p. 75...

...12 But this intentional view of parenting has some odd consequences, even aside from the question of whether it deprives the surrogate of her constitutional right to an abortion by transferring this decision to the sponsoring couple...

...6 If the desire to bear any child, as opposed to the desire to bear one's husband's child, is evidence of an animal urge, what must be evidenced by the desire to bear a "donor's" child one does not even intend to keep...

...Schellen called for strict anonymity on the part of donors, as well as for concerted attempts by doctors to match a donor's physical characteristics with those of the husband and an absolute prohibition against informing the children thus conceived as to the method of their conception...

...In order to show how this might be so, we can start with the "Baby M" case, the crucial example of surrogate mothering for most Americans...

...9 In contrast, as the philosopher Elizabeth Anderson continues, surrogacy arrangements commodify this nurturing labor by subsuming it under production-line values appropriate to the creation of saleable merchandise, thereby underestimating the value owed to the ongoing relationship between mother and fetus...

...Whether we intend them or not, exercise our procreative rights or not, give birth to the children we imagined or not, the salient fact about a family is not the intentions—and thus not the contractual control— that may or may not initiate it...

...Either they encourage women's value as nurturers or they deny it...

...Families are less things that we create or contract into than relationships or the consequences of relationships that happen to us both as parents and, perhaps more obviously, as children...

...We do not choose our children or our parents any more than we choose the person with whom we fall in or out of love...

...Rather, since both already exist, although in different ways, what we need is help in sorting through their complexity and making them work...

...Whitehead was to carry any resulting fetus to term and was not to obtain an abortion except at the wishes of Stern...

...The presumption on both sides of this debate is that the issue of surrogate mothering centers on women...

...At first glance, it seems both to uphold the personal liberty of a couple to form a family and to justify a surrogate's freedom to choose to perform her services under a contract...

...Indeed, why not admit that the child might have two mothers and even two fathers and that all the parties involved might learn to cope and even flourish with that arrangement...

...Still, arguing the issue of surrogate mothering only in relation to issues of women's economic rights or prerogatives as mothers promotes more conflicts than it resolves...

...Certainly, this idea is involved in our colloquial use of the notion of family...

...Upon learning of the existence of a son, the father sued to regain custody...

...Only "artificial prostitutes" devoid of true human love could keep it, and by reneging on her promise, Whitehead merely proved her status as an honest woman...

...The Court found "the payment of money to a `surrogate' mother illegal" since it was for "the sale of a child or, at the very least, the sale of a mother's right to her child...

...Responsibility means responsibility for one's decisions and commitments in the social context in which they are made...

...In contrast, aspects of our understanding of the meaning of family seem to suggest a path toward compromise...

...And why might it not perform this role for us whether we intended to have these relationships or not...

...According to Shalev, the linchpin of an ethics sustaining human bonds is responsibility for self and others, a concern with the network of relationships in which one is embedded rather than a concern solely with one's own individual rights...

...Exploring the practice in 1957, A.M.C.M...

...Surrogates are not supposed to form the kinds of attachments to their fetuses that are a proper component of our social practices surrounding pregnancy...

...But if at least part of the meaning of family relationships is that they go beyond our intentions, then these results would seem to follow...

...Both court decisions and the writings of feminist theorists center on questions about the value of mothering, the proper role of women as mothers and citizens, and the putative relations between a woman's reason and her emotional life...

...But this reasoning bears a suspicious similarity to that of the New Jersey Supreme Court...

...If a surrogate father is allowed under the law to sell his sperm, a surrogate mother must, as a matter of equal protection, be allowed to sell her reproductive services...

...Rather the salient fact about a family is simply that it is there...

...It also means that the "sponsoring couple" takes over responsibility for any children resulting from the surrogacy agreement...

...In one a woman agrees to be artificially inseminated with the sperm of a man in order to bear a child for him and his wife...

...For although Shalev's conception of contracting to be a parent rests on the intentions and control of sponsoring parties, at least part of what it means to have or belong to a family is just to lose control...

...The court also considered the effects on the child both of not living with her natural mother and of discovering that her mother gave birth to her "only to obtain money...

...Elizabeth S. Anderson, "Is Women's Labor a Commodity...

...In this instance, a woman became pregnant by her husband in the midst of divorcing him...

...Hence, they ought to be compensated in the same way...

...3 Cited in Carmel Shalev, Birth Power: The Case for Surrogacy (Yale University Press, 1989), p. 22...

...And it continued: Under the contract, the natural mother is irrevocably committed before she knows the strength of her bond with her child...

...Here it relied on the expert testimony of psychologists such as Dr...

...The so-called sponsoring couple, in turn, agree to compensate her for her services...

...Our guiding question might be how the laws and principles we construct help us to cope with relationships we may never have intended but that are integral to other relationships we may also not have intended but from which it would be devastating for us to be cut off...

...Rather, it should try to understand and facilitate the relationships we already have...

...3 In 1954, the Superior Court for Cook County agreed, calling A.I.D...

...We can decide to have little to do with the people who turn out to be our parents, and we can narrow the range of possibilities for falling in love...

...Why should we not think of family law as the means of helping us to nurture the relationships we have and cannot do without or to cope with the relationships we must have because of other relationships we cannot do without...

...with adultery, claiming that the real crime of adultery involved "the possibility of introducing into the family of the husband a false strain of blood...

...In a sense, by being unable to comply with the terms of the surrogacy contract, Whitehead redeemed herself...

...19, No...

...Finally, it discussed Whitehead's predicament: "She was guilty of a breach of contract, and indeed, she did break a very important promise, but we think it is expecting something well beyond normal human capabilities to suggest that this mother should have parted with her newly born infant without a struggle...

...In the other, eggs are harvested from one woman, fertilized in a petri dish by her husband's sperm, and implanted in the womb of another woman...

...How are we to resolve this apparent impasse...

...Indeed, the ambiguities to be gleaned from the two courts' decisions in the "Baby M" case have been repeated in more recent feminist debates over the issue...

...FALL • 1994 • 467 In practice, artificial insemination by donor required secrecy...

...If the artificial insemination of a married woman who wants to bear and keep a child is tainted with the connotation of adultery, how must the artificial insemination of a surrogate be tainted...

...As parents, our responsibility for our children, whether we discharge it by raising them as best we can or by trying to secure a better home for them than the one we can supply, does not depend on our original intention to have or not to have them...

...It would not have been one they intended, but they might get on with it nonetheless...

...Indeed, no force is stronger...

...Upon her reappearance, the baby was placed in the Sterns's custody...

...5 Accordingly, Schellen called any unmarried woman who wanted a child through artificial insemination "guilty of ruthless selfishness" and, he went on, she could "have little true love in her heart...

...from finding out about their births...

...FALL • 1994 • 473...

...But if law or moral principle has any role in this predicament, it should help us muddle through the network of connections that has happened to us, since this is both what a family is and what we have to do in any case...

...nor can we yet control the sex oC our children or pick their personalities...

...Other than survival, what stronger force is there...

...But the lower court's reasoning can be understood to follow from the same ideas about women and surrogacy as the New Jersey Supreme Court's decision...

...Child support might legitimately be required of fathers (or "deadbeat dads") who have explicitly or tacitly expressed their intention to enter into a father-child relation...

...The evidence for this diagnosis was in part that she handed the baby out of a window to her husband to avoid the baby's being taken by the Sterns, in part that she dyed her prematurely white hair, in part that she was the dominant force in her marriage, and in part that she discussed paying off debts that Schecter doubted she could pay off, given her and her husband's "present vocational and educational training...

...Schellen called it "artificial prostitution...

...contrary to public policy and good morals" and defining it as adultery on the part of the mother...

...To be sure, we are able to realize some intentions with regard to some of these factors, and emerging birth technologies promise more 470 • DISSENT intentional control than we have had thus far...

...of which surrogate mothering remains a species, is a case in point...

...2 For some feminists, this decision was a victory for the rights of mothers to keep their children...

...4 ' Cited in Gena Corea, The Mother Machine (Harper and Row, 1985), p. 47...

...In another case, the continuing strength of her commitment to other goals may mean that it is not difficult at all...

...And this lack of ultimate control seems, in fact, to correspond to a significant aspect of our understanding of family...

...What we require of the law (or moral theory or, indeed, child psychology) in these cases is not some way of deciding which is the more legitimate relationship...

...On this ground alone, it is unclear how we could hold surrogate mothers to a higher standard...

...The point here is that the law should not determine which relationships we can have to which people...

...On March 31, 1987, the New Jersey court upheld the validity of the surrogacy contract, awarded full custody to the Sterns, allowed Elizabeth Stern legally and immediately to adopt the child, and terminated Whitehead's parental rights...

...Schellen, Artificial Insemination in the Human (New York: Ellsevier Publishing Co., 1957), p. 284...

...Marshall Schecter, who attributed to Whitehead a "Mixed Personality Disorder...

...For example, on Shalev's view it does not seem that a biological father can be required to support his child financially unless he specifically agrees to or intends to function as the child's father...

...For the idea that birth fathers should help support their children whether they intended to have them or not rests on the idea that families, even nontraditional families, constitute sets of relations that are not always intended or chosen...

...We can also take positive action to fall in love or become pregnant, and we can rely on the medical profession or singles associations to help if we are having trouble...

...This odd result of Shalev's view illuminates an important aspect of our understanding of the meaning of a family, however...

...if a child were stillborn, she was to receive $1,000 in addition to expenses...

...11 Birth Power, p. 127...

...Honest women have true love in their hearts, and they never put selfish economic considerations before the claims of affection...

...Rather, she is swayed by influences and fears, whether rational or not, that cause her (weak and emotional as she is) to act against her long-term interests...

...She brings the resulting fetus to term and is again compensated for her services...

...We can try to decide when not to be pregnant by using various methods of birth control or by having an abortion...

...Moreover, it is a form of exploitation in which middle- and 466 • DISSENT upper-middle-class couples fulfill their most fundamental desires by commodifying the bodies of poorer women and buying their babies as merchandise...

...Were secrecy not maintained, Schellen and other medical ethicists warned, not only might the courts consider the child illegitimate, but a woman undergoing artificial insemination by donor might transfer her affections to the donor, and her husband might pursue him in a jealous rage...

...10 But if a woman's voice in ethics thus seems unequivocally to oppose the validity of pregnancy contracts, it is noteworthy that the feminist legal scholar Carmel Shalev turns precisely to notions of sustaining and strengthening human bonds in her case for the validity of surrogacy contracts...

...But if these implications of the New Jersey Supreme Court's decision comply with a history of stereotypical views of women's needs and natural motherhood, what about the lower court's ruling...

...Honest women cannot be interested in leasing out their reproductive capacities...

...But then what are we to do when a surrogate tries to keep the child she formerly agreed to relinquish and the "sponsoring parents" refuse to give up their claim on it...

...For their part, the children of surrogates are denied what is due FALL • 1994 • 469 them: to be loved and cherished by their parents rather than being used for "personal advantage" or treated as a commercial product...

...But the bond with her infant seems only the beginning of what she cannot know...

...Still, none of these strategies are fail-safe...

...The Sterns went to court and were granted temporary custody on May 5, 1986...

...But fathers could not be legally compelled, as they are under current law, to support children whom they fathered but never intended to father...

...For some feminists, the traditional orientation of women toward the good of others is a source of moral strength...

...On February 8, 1988, however, the New Jersey Supreme Court reversed the lower court on the legality of the contract, restoring Whitehead's parental rights and granting her visitation rights but allowing the Sterns to retain custody in the "best interest" of the child...

...Surrogate mothers typically describe their motivations for entering into pregnancy contracts with childless couples as, at least in part, altruistic ones...

...Moreover, since monetary damages could not possibly compensate William Stern for the loss of his child, the court required Whitehead's specific compliance to the terms of the contract she had signed...

...Certainly a mother cannot know what her bond to her child will be before it is born, as the New Jersey Supreme Court notices...

...The response to artificial insemination by donor (or A.I.D...

...Philosophy and Public Affairs, Vol...

...Nor can she do so afterward given the threat of a lawsuit and the monetary inducement provided by the surrogacy fee...

...This solution seems to comply with much of what we consider a family to be, something that is either entirely unintended or, in any case, surpasses any intentions we could have had...

...I would like to offer an alternative view, however, one that moves the debate away from questions about women to questions about family relations in general...

...But it is also unclear how we could prohibit surrogacy contracts as a mode of improper valuation...

...This sort of solution seems to be the one a Vermont court chose (in sharp contrast to other recent custody cases, such as those of Jessica Deboer or Kimberly Mays) in settling the recent adoption case of "Baby Pete...

...In certain cases such as wife-battering, child abuse, and parental neglect, we require the legal system to enforce restraining orders and set restrictions on the possible contact between members of a family...

...They must be the decision makers...

...Hence, no (real) woman can make an informed decision to sell her rights to her child prior to its birth...

...But why might not one's family be defined as that group of people who have a special concern for one, those that actually do have the "calling" or commitment to one that some writers think anyone bringing a pregnancy to term must have...

...Moreover, this morality is taken to tip the balance of the argument against surrogacy arrangements instead of for contractual compliance...

...She was to receive payment for the sale of a mother's right to her child...

...When Schecter also claimed that she played "patty cake" incorrectly and mistakenly gave the baby stuffed animals to play with instead of pots and pans, a group of women and feminists released a letter to the press declaring that "by these standards we are all unfit mothers...

...13 Sacred Bond, Appendix D. 9 ' Barbara Katz Rothman, Recreating Motherhood: Ideol ogy and Technology in a Patriarchal Society (W.W...

...Hence, it also takes seriously another idea: namely that we need not sever some relationships in order to guarantee the strength of others...

...4 Any children issuing from A.I.D...

...The law must restrict relationship in these cases, but that does not mean it 472 • DISSENT should restrict it in all others...

...Family Relationships Fundamental to Shalev's defense of surrogacy is the expression of intent...

...The outrage the lower court in the Baby M case evinced when Whitehead tried to renege on the surrogacy contract seems to follow...

...At issue in the question of surrogacy is less the strength or the proper direction of a woman's emotions than the strength and non-intentional character of family relationships in general...

...But in other cases, this set might involve one's custodial parents and one's biological parent or one's custodial parents and the woman who served as their "surrogate," or one's two lesbian mothers together with their sperm donor...

...Either they promote women's equality or they obstruct it...

...In the event that a baby is born with significant deformities, the sponsoring parents cannot themselves renege on the pregnancy contract...

...Where this situation is not possible it must be pretended, by closing adoption records, keeping semen donor identities secret, and preventing the children of A.I.D...

...Meanwhile, opponents of A.I.D...

...What open adoption, surrogacy, and new birth technologies seem to ask us to reject is not our ordinary understanding of a family, but rather an outmoded part of it according to which a family properly consists only of biological parents and their children...

...In the general case, the set of people with this special concern may be one's nuclear family, whether related biologically or by adoption...

...Nevertheless, the vitriolic response of the court and its expert witnesses may have stemmed in part from the surprising selfishness Whitehead's actions seemed to reflect...

...In 1921, a Canadian court equated A.I.D...

...If we contrast Anderson and Shalev we seem to confront again the opposition of the two New Jersey courts...

...They depict their actions as attempts to perform a good 468 • DISSENT deed for others and to give something of themselves, in light of which the monetary gain is entirely secondary...

...Because we recognize that these relationships can evade our intentions, we do not require couples to remain married even though they have signed a contract to do so...

...The promise Whitehead broke is a promise no real or honest woman could be expected to keep...

...Such self-descriptions might be seen as attempts to lift surrogate mothering out of the subhuman domain of "artificial prostitution" and into the more respectable domain in which women's traditional tenderness and concern for others holds sway...

...6. A.M.C.M...

...Succession through blood descent," the Feversham Committee in England declared in 1960, "is an important element of family life and as such is at the basis of our society...

...both were to terminate all their parental rights upon the birth of such a child and, moreover, "to sign all necessary affidavits prior to and after the birth of the child and voluntarily participate in any paternity proceedings necessary to have William Stern's name entered on said child's birth certificate as the natural or biological father...

...But if families are relationships that happen to us rather than entities that we intend or contractually control, as Shalev assumes, it seems odd to legislate the proper form those relationships are supposed to take— as notions of true motherhood or of the proper relation between child and mother do...

...Rather, for a surrogate mother who finds herself in a relationship with a baby she meant to bear for others, the function of the law might be that of helping her to continue with that relationship and to forge a relationship with the sponsoring couple while, at the same time, helping the sponsoring couple relate to her...

...Hence, in cases in which a fetal abnormality is detected, it is the sponsoring couple's decision whether or not the pregnancy should be terminated...

...Suppose we try to do so by focusing, not on the meaning of mothering or the status of women, but rather on the character of family relationships...

...For the biological father of a child whose mother put it up for adoption without telling him of its existence, the function of law might be the same: that of helping the man recognize the custodial relation between the child and its adoptive parents and helping them to recognize his biological relation to it...

...FALL • 1994 • 471 If we begin with the idea that family relationships are unintended and that we must respect some of the different paths family relationships can take, we might accept this as a supportable outcome...

...7 But the flip side of understanding surrogate mothering as artificial prostitution is defining the legitimate feelings and desires of "honest" women...

...Controversies over custody in surrogacy as well as divorce and adoption cases often bring two sets of competent parents into opposition...

...Certainly, some modes of relating to children or discharging our responsibility toward them are morally unsustainable...

...I do not mean to underwrite a neoconservative rehabilitation of "family values...