Surrogacy Is a Bad Bargain

Leslie J. Reagan

THE BABY M soap opera and the rights and wrongs of the case have been hotly debated in saloons and living rooms across the country. In this soap opera, Mary Beth Whitehead has been portrayed as both a bad mother and a bad worker.

From the beginning, she was a bad mother because she provided the use of her uterus and gave up her child for money. Her inadequacy as a mother, as determined by psychiatrists, attorneys and the media, also became the reason for denying Whitehead her child. Furthermore, when Whitehead decided she wanted her baby, a desire born of her physical experience as well as cultural values, she was a bad worker for breaking a contract and disappointing her employer.

Throughout this story, the media have denied Whitehead’s true relationship to Baby M. She has been called the “surrogate mother” when she is the mother: she provided the egg and bore the child. It would be more accurate to describe her as Baby M’s mother and William Stern’s surrogate wife.

Rather than focusing on the details of this case, I want to discuss social policy toward surrogacy in light of the fact that the “surrogate mother” is simultaneously a woman and a worker. I hope to contribute some thoughts on a confusing and complicated issue and will comment on an earlier Against the Current (May-June 1987) article by Johanna Brenner and Bill Resnick. I look forward to further discussion and action on this issue by feminists and leftists.

I will focus on two burning questions. What kind of policy on surrogacy should feminists and progressives support? Who should get the baby in disputed surrogate motherhood cases?

The answers to these questions should be based upon the perspective of women and workers. We should support a policy that advocates and defends the rights of both women and workers to control their bodies and their lives. I will argue that surrogate motherhood contracts should not be enforceable in the courts and that the mother should retain her right to custody of the child.

New Form of Exploitation

As many have pointed out, the practice of surrogate motherhood is undesirable. Surrogacy is a new form of exploitation of women’s bodies, akin to prostitution. It takes advantage of the sexual division of labor, which still expects women to do child care and house work at home and still results in women being paid approximately fifty-nine cents to the dollar men are paid. A job like surrogacy may be tempting to many women if it allows them to earn money and care for the kids simultaneously.

In addition, class differences and racial prejudices will determine which women work as surrogate mothers and which men (and their wives) will be able to pay for their services. Poorer women and their families will find the payments for surrogacy attractive in contrast to low­paying or non-existent jobs.

Only the rich can afford to pay the costs of a surrogate mother; Baby M cost the Sterns $10,000 to pay Whitehead, $7,000 to the broker (he is the one making big bucks off this business), plus medical care and legal fees.

The rich, white men looking for surrogate mothers will most likely want white babies and, thus, white surrogates. Yet, we may soon see minority and Third World women bearing white children at a very low price if surrogacy contracts use in-vitro fertilization and embryo transfer techniques. [See Rita Arditti, “‘Surrogate Mothering’ Exploits Women,” Science for the People, May-June 1987; 22-23. Arditti cites Gena Corea’s The Mother Machine in which John Stehura from the Bionetics Foundation suggested that Third World women might be paid one-tenth the surrogacy fee paid to U.S. women.]

Other dangers lurk in legitimizing the practice of surrogacy. Kathy Pollitt pointed out two areas of concern that I want to mention. She raised the possibility of women being coerced into surrogacy contracts by their husbands as an easy way to make money for “her husband’s debts her children’s unfixed teeth, the kitchen drawer full of bills.” [See “The Strange Case of Baby M,” The Nation May 23, 1987, 667, 682-688.]

This may sound horrific, but it seems quite possible given the unequal power relations within the family, the low level of social services provided by the state, the level of unemployment, and the dire financial need of many American families. Furthermore, what is to prevent the state itself from encouraging women to work as surrogate mothers when many states are implementing workfare?

Pollitt also asked, what affect does trading in babies have on the mother’s other children? She commented, “I’d love to be a fly on the wall as a mother reassures her kids that of course she loves them no matter what they do; it’s just their baby sister who had a price tag.”

For these reasons, some would like to eliminate the practice of surrogate motherhood. Nonetheless, attempts to ban surrogacy should be opposed.

We know from the historical experience with prostitution that banning activities — even if sexually exploitative and undesirable — does not stop them; they simply go underground. If money is offered, some women will work as surrogate mothers. Forcing those agreements underground will make it impossible to regulate surrogacy in any way.

Instead, surrogacy should be discouraged. To do this, we need to increase the risk to the ones seeking surrogate mothers. Refusing to enforce the contracts is the first step. We need to think of ways to increase the risk and cut the profits of the brokers as well.

Enforcing surrogate motherhood contracts in a disputed agreement such as the Baby M case legitimizes and encourages this business. The business of surrogacy and enforcement of surrogate motherhood contracts also jeopardizes women’ reproductive rights and workers’ rights.

Reproductive Rights

Enforcement of surrogate motherhood contracts represents another attack upon women’s reproductive rights. Whitehead’s contract included a clause requiring the mother to “abort the fetus on demand” if medical tests found the fetus had “genetic and congenital defects.” This clearly infringes upon women’s hard-won constitutional right to privacy in abortion decisions.

The contract also placed requirements and limitations on Whitehead’s medical care and drug use and forbade the development of an emotional relationship with her child. Allowing a potential father/employer to dictate how a woman lives, what she eats and drinks, whether she shall have an abortion or not endangers women’s rights to control their own lives.

By writing a contract and paying money, a man may control a woman’s life and her body in ways that others cannot. Perhaps a marriage contract implies control over a woman’s body and her reproduction? It did in the past. Others may argue that all potential fathers should be able to dictate the terms of pregnancy to a woman. In fact, some would like to require the consent of the potential father for abortion.

We must oppose policies that take away women’s power over their own bodies and grant it to employers, potential fathers or the courts.

Some of this may sound far-fetched. But one San Diego woman was prosecuted for manslaughter after the death of her baby because she had failed to follow her doctor’s orders, according to the district attorney’s office. This kind of criminal prosecution suggests that once a woman is pregnant her life becomes secondary to tha.t of the fetus and the patterns of her life may be regulated by her doctors or the state.

Fortunately, this woman was acquitted. If the prosecution had succeeded, it would have set a dangerous precedent of blaming women for birth defects and infant deaths, making fetal life primary over the woman’s, and turning doctors’ orders into laws that would be enforced by the state. [See Angela Bonavoglia, “The Ordeal of Pamela Rae Stewart,”Ms. (July-August 1987; 92-95, 196-204.]

Workers’ Rights

Enforcement of surrogacy contracts poses threats for workers as well. Surrogate contracts threaten the ability of workers to control minimum wages, maximum hours, and to exercise individual control over their own bodies.

Managers across the country, with Ronald Reagan’s blessings, have increasingly intruded into the private lives of workers with drug testing. There has been a national effort to regulate people’s private lives and personal behavior twenty-four hours a day. This is a significant violation of workers’ rights to privacy and bodily integrity. It is not management’s right to know what workers do off the job.

In the interest of workers’ autonomy and privacy we oppose drug testing by business and government. Similarly, the surrogacy contract violates these rights and regulates the behavior of the worker, twenty-four hours a day.

The surrogacy contract also violates the hard-won minimum wage standards. Whitehead received less than half the minimum wage: $1.57 an hour. Certainly, courts should not enforce such contracts. Finally, workers cannot sign away their rights to quit a job. Contracts where a worker agrees to work a year or two are not enforceable. Employers cannot get the state to force a worker to work because s/he signed a contract promising to do so for a certain period. Workers cannot sign themselves into indentured servitude. They retain a right to quit.

It is only in the military that one can sign his or her life away; childbearing should not be comparable to military service to the state.

Who Shold Get the Child?

Who should get the baby in a disputed surrogacy case such as the Baby M case? If surrogate motherhood contracts are unenforceable in order to discourage them, then the mother, Mary Beth Whitehead in this case, should retain custody of her child.

Furthermore, in a disputed case, the mother should get the child because her contribution to the life of that child surpasses that of the sperm donor/employer. Pregnancy and childbearing deserve to be recognized as work — hard, physical (and biological) labor — that weights a custody battle at the child’s birth towards the mother. As the Baby M decision stands now, custody is weighted towards the man who donated his sperm and had the money to pay for a baby.

I do not make this argument out of any commitment to “biological essentialism,” which Brenner and Resnick properly criticize, or out of a belief that biological mothers naturally make better parents. It is not that women should retain custody of their children because of their biology, yet there is a biological difference in the role played by men and women in reproduction that we cannot ignore.

The contribution of men and women in reproduction is not equal. In a disputed surrogacy case preference should be given to the mother, the one who has contributed the most to the baby.

At the moment of birth, let’s compare the efforts of the mother and the father in this case. The father ejaculated into a jar. That took perhaps a couple of minutes. The mother experienced a myriad of physical changes. She carried the fetus for nine months; during that time the fetus was completely dependent upon her.

Pregnancy changes a woman’s life in other ways as well, as she alters her eating, drinking and other habits in order to protect the developing fetus.

The mother literally labors to deliver the baby to the world. Her body struggles and pushes and sweats and bleeds and tears to deliver that child.

The work the mother does is work only a woman can do, yet it is undeniably physical labor, even if it has not been recognized as such with wages. The woman worked to carry that child for nine months, more than full time, twenty­four hours a day, and then delivered it. Labor might last a full work week: sometimes a woman labors for forty hours or more. Just as loading trucks, farming, housework and teaching are work, so too are pregnancy and childbearing.

How can we possibly, at the point of birth, deny the woman the fruit of her labor? The only basis for doing so is that a surrogacy contract turns reproduction into wage labor and babies into products that one can buy.

State adoption laws do not enforce an agreement to give up a baby for adoption; the prospective adopting parents have no guarantee. A woman cannot sign away her right to her child before or during her pregnancy; she can only consent to terminate her rights sixty to ninety days after birth.

Surrogate mothers should have a similar grace period before their parental rights are terminated. The risk should be borne by the buyers in this case.

At a later point in a child’s life, when a mother and father both have put energy, time, and physical and emotional labor into their child, all of these factors would have to be considered in determining custody.
The Sterns

The Stems’ claim to Baby M is based on a contract, money and William Stern’s sperm. I have argued first, that it is not good social policy to enforce this contract and second, that the parental rights of a sperm donor are less than those of the woman who bore the child.

Brenner and Resnick note that the Stems had been “expecting” and preparing for a baby for months and argue that they should be granted custody of Baby M. It must have been quite painful to the Sterns to have their hopes dashed by Whitehead’s assertion of her parental rights.

Though we may have great compassion for the predicament in which this couple finds itself, this is not a strong argument for giving them preference over the woman who carried and delivered the baby.

Unfortunately, none of us gets all that we hope for in life. Hopes and promises are broken, especially around love and family life. Many people experience miscarriages and deaths of beloved children and cope with their grief.

Brenner and Resnick’s comment that Whitehead “had two kids and could have another” seems callous in comparison to their concern for the Sterns, as though Whitehead’s physical and emotional experiences deserve only slight attention. Apparently, Brenner and Resnick think it is easy to replace the loss of one child with another.

Prospective adopting parents may experience grief similar to that of the Sterns’ if the biological mother decides to keep her child, but they do not enjoy any legal right to custody of the child due to their broken expectations.

Biology Is Destiny?

I want to return to a discussion of “biology” in determining social policy. Brenner and Resnick are right to criticize “biological essentialism” as a basis for determining custody, for, as they note, this is a favorite argument of conservatives and one used to “justify traditional feminine roles.”

The notion that “biology is destiny” has been used often against the liberation of women. For too long women have been told that since women can bear children, naturally, they must bear children and become mothers. And motherhood has meant being a subordinate wife whose job is to serve husband and children in the nuclear family.

Some may fear that favoring the mother in a surrogate motherhood dispute will invite the Right to interfere in other aspects of women’s lives because, “biologically,” women are best suited to be mothers.

Challenging biological determinism and the view that women’s lives are ruled by their reproductive system (unlike men, of course) has been an important feature of the nineteenth- and twentieth-century women’s movements. Feminists have countered that the “destiny” of biology is social. Social and cultural values — not biology — define gender roles.

Yet, we have not been deterred by a fear of the “biology is destiny” argument from fighting for contraceptives, abortion, good prenatal and maternal care, and control over the experience of childbirth. The ability to determine if, when, and how to bear children is an essential component of women’s liberation.

We need to remember how biological determinism has been used against women. In the face of a strong women’s movement and women’s political, social, and economic advances, anti-feminists have used this pseudo-scientific ideology to bolster their fight against the freedom and equality of women. Biological arguments have been used as a trick by those who seek to maintain female subordination (or, in other contexts, racial or class subordination).

Nonetheless, for the Left to avoid discussion of the importance of sensual and physical experience accepts the Right’s arguments that biology equals destiny. Recognition of the biological experience and work of childbearing does not imply agreement with the idea that childbearing naturally means mothering twenty-four hours a day in the male-dominated nuclear family.

To deny the significance of physical experience seems to me to deny people’s real lives. Do not the “biological” facts of sexuality, adolescence, old age, disability, and pregnancy and childbirth really affect and shape people’s lives? We must pay attention to people’s physical experiences, their sensual and emotional experiences, and protect their bodily integrity while also resisting biological determinism.

Women and workers strive for control over their lives. Securing control over one’s own life and body — in the public arena of the workplace as well as the private arena of the home and bedroom — are crucial demands of both the women’s and labor movements and should guide our thinking in the Baby M case.

As feminists and leftists, we seek to curb, and ultimately end, male control and domination of women and employer control and exploitation of workers.

I have made policy suggestions about surrogacy, but our primary organizing efforts should be directed to winning real freedom and equality for women. We need to defend reproductive rights and demand access to birth control, abortion, maternity services, and child care for all women. We need to fight for jobs and an end to the wage discrimination that women experience. Only major social changes of this kind will eliminate the attraction and exploitation of working as a surrogate mother.

September-October 1987, ATC 10