A Reply to Our Critics

Johanna Brenner & Bill Resnick

BEFORE TAKING UP our disagreements with our critics, we want to state the broad areas of agreement.

First, surrogacy is a terrible social practice.

Second, surrogacy contracts should not be enforced.

Third, legal prohibition would make things worse.

Fourth, legislation and regulation should protect the parties, particularly the childbearing mother, and discourage the practice by increasing the risks to the buyers and eliminating the profits to the brokers.

If disputes occur at birth of the child, we all agree that social policy should ensure that the surrogate mother generally gets custody but on some other basis than biological essentialism (that women are naturally endowed for child rearing roles).

Why then the dispute? Because on the facts of this case we concluded that Baby M should go to the Stems, the sperm donor and wife.

Marian Swerdlow felt that we fell into a “senseless impasse,” failed to take the side of the working class, and defended motherhood by contract. As most readers understood, however, we strongly condemned surrogacy and explicitly opposed those who argue that the courts should enforce surrogacy contracts, just like any other contract.

We do argue that surrogacy is not so different from existing forms of exploitation. But we make this point to differentiate a left from a liberal position opposing surrogacy.

We attack the hypocrisy of the right but far more that of liberals who fulminate against this “violation of women’s bodies” while keeping silent on the also terrible exploitation of mind and personality in much “women’s work.” We thought that in arguing against surrogacy, the left should emphasize the similarity to much women’s work, because most surrogacy opponents are outraged by the difference.

Although reproduction seems to be a private, personal sphere protected from the capitalist market, this separation has been far more apparent than real, fundamentally compromised by women’s lack of control over their lives in the public realm: politics, economy, culture. And while any additional form of exploitation must be resisted, the left gains nothing politically by joining those who find this practice so much more harmful to women than many others, including the commodification of personality and feeling, the selling of the self, that is routine in many women’s occupations.

Pregnancy & Maternal Bonding

Many feminists oppose surrogacy on the ground that pregnancy is a unique bodily experience, creating a bond between mother and child. Pregnancy and childbirth are unique physiological processes, but the experience of them is socially and psychologically mediated.

Ellen Willis once made the point that carrying an unwanted child is like having cancer: something destructive is growing inside. We would contend that being pregnant with a child you intend to give up is a qualitatively different experience from bearing a planned child that you intend to parent.

Because our society defines women essentially by motherhood, it seems natural that women must necessarily feel a certain way about pregnancy and childbirth, become overwhelmingly attached to their babies, and be unprepared, except under terrible duress, to give them up.

There are surrogate mothers who felt that way. But before we jump to the conclusion that they reflect all surrogate mothers, let’s remember the parades of women organized by the Right to Life to testify to their grief, loss and despair having had an abortion. Their feelings are legitimate and real, but not representative.

The commodification of women’s wombs has to be resisted, but on different grounds. We should oppose surrogacy because it is exploitative, alienated labor, because it encourages women to treat their bodies as commodities, because it extends market relationships while we want to limit them.

n a socialist society, perhaps few women will be willing to labor to produce a child for others to raise in our society, we argued, there will always be women for whom surrogacy will appear a better bargain than many other sorts of work. This is one reason why women will continue to be available for surrogacy and therefore why making it illegal will discourage some buyers and sellers, but will primarily drive it underground, leaving those women who do participate even more exploited.

Protecting the Childbearing Mother

The main fire of our critics was directed not so much at our analysis of surrogacy in general but our conclusion on the Baby M case. We thought that it was a close decision, but that the Stems deserved custody though very explicitly not for the reasons the judge gave.

Swerdlow thinks this a betrayal of principle, since for her the Whiteheads were the working class, the Stems the exploiters, and that’s all we socialists need to know. Reagan argues that Mary Beth Whitehead should have custody because she did the work of pregnancy. Holmstrom and Wrigley favor joint parenting of some sort and think the principles we applied systematically disadvantage the mother and will fail to prevent class bias in contested surrogacy decisions.

In both our analysis and recommendation sections for dealing with surrogacy we explicitly argue for a grace period, as in adoption, during which mothers have the right to change their mind. Moreover, we argue if the mother changes her mind early in the pregnancy, the father would have no claim to custody and, at most, minimal visitation rights. We also argue that the father would still be responsible for medical costs and child support-all of which would help to discourage couples from using surrogacy.

If the woman changes her mind late in the pregnancy or during a grace period after birth, when the prospective parents had been allowed to become parents to some degree, then the issue should be treated like a normal custody dispute.

Under this policy, the conditional nature of the biological father and wife’s claim would require them to temper their hopes, negotiate and shape their feelings. They could less persuasively claim, as could the Stems, that they had become expectant parents.

We believe that this policy would tend to favor mothers, discourage surrogacy contracts, and limit the introduction of class bias in custody awards-the policy goals called for by Holmstrom and Wrigley.

Custody, Visitation & Class Bias

We agree with Wrigley and Holmstrom that the rights of neither parent should be entirely extinguished. The non-custodial parent should have some right to visitation.

We disagree with Wrigley’s argument that increasing Baby M’s caregivers in this way may prove to be healthier for her than allotting sole custody to either party. Shared custody may be workable in many divorce situations, but in highly disputed custody cases (divorce or surrogacy) shared custody is not a good resolution but only the least bad decision.

We do agree, however, that requiring the surrogate mother to have visitation rights in those instances where she is not awarded primary custody would discourage contested custody cases. As Wrigley points out, the Stems said they would have refused custody had they been required to share Baby M.

Wrigley opposes our argument that parenthood is not only biological but also social, and comes about when people develop expectations and assume responsibilities.

She disagrees because it attacks the rights of biological parents, allows the intrusion of class bias, and attaches overwhelming weight to an inherently subjective factor, people’s hopes and expectations.

She argues that under cover of the “best interests of the children,” powerful groups have robbed powerless groups of their children and that therefore any approach to surrogacy should support the rights of biological parents to their children. No other social policy provides such protection against class or race bias, she says.

There are two issues here: a) what is the best policy to protect an oppressed group; and b) what is the politically best argument? Both are important.

Indeed, deciding what we are for is probably less crucial than deciding why we are for it. Socialist feminists have a lot more impact on the individuals we reach with our words than we have on the actual outcome of policy and the alternatives that will be debated in the legislature.

Now, as far as child theft goes, two of the three examples that Wrigley gives, (slavery, Argentine fascism, Israel in the 1950s) occurred in societies in which the law gave biological parents firm rights to their children. When Argentine death squads killed parents and stole children, they did so under a fascist regime, not under cover of an Argentine family law that too weakly defined the rights of biological parents.

A law which defines as parents those who have a social and psychological rather than biological tie to a child would certainly prevent child theft every bit as well as one based on biology. In the case of child theft, the powerlessness of the abused group, not the form of the law, is decisive. Our rule affords equal protection and has the additional advantage of challenging traditional notions of parent­ hood and motherhood.

In our own society, as Wrigley points out, “despised subgroups” lose their children not through theft but through routine court and administrative decisions. We agree that the rights of parents need to be defended. But how? Laws and practice must be shaped and continuously examined as far as possible to assure that class-based and homophobic decisions are strongly discouraged.

Relying only on the rights of biological parents to defend working-class parents and lesbian mothers doesn’t raise any of the real political issues. It also has its own contradictions: for example, if biological rights are primary, then what about a custody battle between a lesbian co­ parent and the child’s father?

Waging an explicit fight against existing regulations and practices of state agencies and challenging the class, race and sex biases in how they define good parenting, helps to build political understandings. The “best interest of the child” rule is not likely to go away. To fight for specific reforms, such as disallowing certain kinds of evidence (for example, sexual orientation or whether the mother works outside the home) in cases where the state is considering removing a child from its parents, would be a way of building the broad political coalition necessary for any lasting change.

Of course, in a surrogacy custody battle, Wrigley’s rule gives us no guidance at all, for the contending sides include one biological parent. One party had to lose. We argued that because the Whiteheads and the Stems had equal, although differently based, claims, the decision about custody should normally be made, as in divorce cases, on a “best interests of the child” basis.

In the Baby M case we didn’t see any way to judge who would be the better parent, except using unacceptable class­ biased criteria. So with everything being equal, we reached for a basis of decision: we favored the Stems who had no children, while the Whiteheads had two.

Of course, once the judge had granted the Stems custody of new-born Baby M and she had been with them for ten months, a ”best interests of the child” standard would favor leaving her with the Stems, as Holmstrom argues.

Class Questions

Marian Swerdlow wants to apply class to decide custody here: the Stems have more money than the Whiteheads and can afford to buy her services: they are therefore exploiters and Whitehead the exploited.

What if, however, the Stems were not high salaried workers? What if they were a truck driver and clerical worker, Bill and Liz Sterb, no kids, total income $35,000 per year, like many millions of U.S. couples.

Yes, $20,000 is a lot of money, but many working-class couples spend about that on a down-payment for a home or a kid’s education. So let’s say these folks, as many do, desperately want a biologically related child. They scrimp and save and borrow to raise the $20,000. And they also prepare the house and take all the courses, have a house full of diapers and all the rest.

And suppose the surrogate mother is the wife of a car salesman making $40,000 a year. She wanted to earn money while staying home with her two young children. Neither she nor her family ever expected to keep the baby.

After birth let’s say she changed her mind. So, who was the exploiter? Who should be the parent? We could, as Swerdlow’s criterion suggests, decide all court cases in favor of the people who have less money, which would greatly simplify judicial decision-making, if increase the number of lawsuits.
All the writers see surrogacy as rich men buying children from poor women. In fact, the class position of the parties is generally fairly close.

Only fellow poor will willingly choose poor, potentially unhealthy, women to bear their child. And the more money couples have, the higher the class of the women they hire, as in all the service industries except the most menial. As we pointed out in our article, the childbearing mothers seem to be from the middling layers, housewives who have enjoyed pregnancy, who want to make a gift of life, and who also need to earn income.

Professional Workers

Swerdlow and Wrigley are quite nasty to the Sterns. We suggest the lawyers are a more deserving target. The Stern lawyers were vicious to the Whiteheads, but the Whitehead lawyers returned the favor. They particularly attacked Elizabeth Stern, implying that she would be an unfit mother because she put career ahead of motherhood, was too busy to bother with pregnancy, and so hired it out-her illness a mere smokescreen.

We found it very disturbing that feminist defenders of Mary Beth Whitehead were so ready to fall back on traditional imagery and to utilize similar arguments. Like the left liberals and feminists who demonstrated at the courthouse and abused Elizabeth Stern, Julia Wrigley denounces the Stems for wanting amniocentesis, arguing that this “reveals quite a bit about the nature of their expectations”- they were only willing to parent a healthy child. Mary Beth Whitehead, on the other hand, is presumably willing to sacrifice all for her baby-clearly, then, the “better” mother.

In their desire for a healthy baby, however, the Sterns join the millions of ordinary prospective parents, working-class as well as middle class, who have used amniocentesis for the same reasons.

Of course, Wrigley is quite right that the contract was unconstitutional in requiring Whitehead to have an abortion, should the fetus prove defective-a point we also made. This requirement, as we said, is one of the many typical provisions of surrogacy contracts that cannot/should not be enforced.

It is not politically helpful to denounce the Stems to counterbalance the slandering of the Whiteheads. The Sterns are not a bank president and ad company exec. They are working people, both on salary, one a biochemist, the other a professor — highly paid yes, but productive, decent, necessary jobs.

How to understand the interests and class position of professional workers is a tough question that the left continues to debate. But surely political identification with the working class does not require resentment of those who are better-off, particularly when they also work for a living.

The “Work” of Reproduction

Leslie Reagan wants to give Baby M to the Whiteheads because Mary Beth Whitehead did the work. But preparation for child rearing includes labor other than carrying and delivering the fetus.

What if the Sterns remodeled a room in their house, chose clothing and equipment, knitted booties, studied the books, went to classes, prepared their emotions and lives for the work of bringing up a baby?

That’s also part of the work of human reproduction.

It’s clear from the case that both parties did work. Does Leslie Reagan suggest that the court case should then have turned on who did more work? That’s difficult to decide, because the kinds of work are so different. In addition, amount of effort doesn’t seem an appropriate criterion for allocating children.

Workers as a class deserve the product of their labor. But should babies be treated as products? Children have interests, and a society must devise criteria that recognize the needs of all parties in deciding contested cases.

We agree with Reagan that “we must pay attention to people’s physical experiences, their sensual and emotional experiences, and protect their bodily integrity, while also resisting biological determinism.” That last clause is, of course, the rub. How do we do this?

We argued that the same physiological process can be experienced in ways that are worlds apart. Thus, a pregnant woman may not be an expectant mother. On the other hand, we agree with Holmstrom that the experience of bearing and giving birth to a child may lead a woman to develop a tie to that particular child such that giving up the child will be very painful. People should not have the right to commit themselves to doing something that will cause them such pain, and they cannot be required to know their own minds with certainty, as Holmstrom correctly puts it.

This argument, however, only gets us to the point of contested custody for the child. It does not give us criteria for deciding who will be the parent; unless we want to argue that a woman’s bearing the child is definitive.

Reagan wants to treat surrogacy like adoption, allowing the surrogate mother to keep the child, should she choose not to give it up. Wrigley on biological, Holmstrom on social grounds, agrees with us that prospective parents do have a claim. Holmstrom and Wrigley, however, disagree with each other: Holmstrom argues that while both mother and the prospective parents each suffer harm from being deprived of the child they hoped to parent, the mother’s loss, being of that particular child, would be greater and therefore she should have primary custody, allowing visitation to the prospective parents.

Wrigley would apply a “best interests of the child” rule to decide who gets primary custody, allowing visitation to the other party. Holmstrom argues that this rule would not eliminate class bias and would encourage endless court battles, ultimately damaging to the child. Her solution is, therefore, to settle the matter beforehand, diminishing both the prospective parents’ expectations and their claims, should the mother change her mind.

While we think that Holmstrom’s solution has certain attractive aspects, we still believe that any attempt to absolutely privilege the surrogate mother is biological essentialism.

Mothers who change their minds may be more pained than the prospective parents by the loss of primary custody. That should be a strong consideration in any contested case, but should not be assumed.

When conflict occurs between parties with legitimate claims and expectations, the claims, the relative harms, and the interests of the child all have to be weighed in coming to a decision.

There is no easy way out. In the long run, we will better protect women not by privileging biological motherhood but by articulating criteria for making decisions that challenge bourgeois and patriarchal notions of “good parenting” and “mother­ hood” and point toward socialist-feminist alternatives.

November-December 1987, ATC 11