Rented Wombs by Amanda Witt

Complications of Commercial Surrogacy

Wanting a baby and not being able to conceive is surely one of the greatest griefs. The Old Testament recounts story after story about the lengths to which women will go to have children, including borrowing another woman’s womb. That’s right—surrogacy isn’t new, nor did it originate with Margaret Atwood.

In Atwood’s The Handmaid’s Tale, it’s a (fictional) right-wing patriarchal theocracy driving the surrogacy train. But today, almost four decades after Atwood’s dystopian novel appeared, it’s not the political right who are fighting for policies reminiscent of The Handmaid’s Tale, but the left. Late last year Democratic Senators Tammy Duckworth of Illinois and Patty Murray of Washington introduced the Right to Build Families Act—legislation that would prohibit any legal limits on assisted reproductive technology. That includes commercial surrogacy, which means paying a woman to carry a child to term.

Surrogacy Defined

Surrogacy can take two forms. In traditional surrogacy the woman who carries the child is also the egg donor. In other words, she’s inseminated; the baby is genetically hers and the father’s.

Traditional surrogacy is not as common in the United States. What’s more common is gestational surrogacy, where a fertilized embryo not genetically related to the surrogate is transplanted into the surrogate’s uterus.

And surrogacy is not rare. According to the National Library of Medicine, between 1999 and 2013 there were more than 30,000 surrogate pregnancies in the U.S.

Who Uses Surrogates?

On a recent episode of the Problematic Women podcast, Emma Waters and Brenda Hafera (both with the Heritage Foundation) described to host Virginia Allen various categories of people who pay for someone else to bear their children:

Infertile women who can’t conceive or carry children to term themselves.

Fertile woman wanting to spare their bodies the stress and changes of pregnancy and childbirth (celebrities who use surrogates generally fall into this category).

Gay men (including both Dave Rubin and Anderson Cooper).

Women who have surgically or chemically altered their bodies (“transitioned”) such that they cannot bear children.

Why Not?

Why shouldn’t we allow consenting adults to engage in a business contract to produce a child? Why should we stop women from earning a living however they choose? (Women generally are paid between $20,000 and $60,000 to act as surrogates.) Why shouldn’t we embrace wholeheartedly any technology that can satisfy someone’s natural and instinctive longing for a baby? Aren’t babies blessings?

They are. And for their sake and the surrogate mothers’ sakes, it’s important to slow down and consider some of the complications of commercial surrogacy—complications serious enough that many countries have banned it.

At its most basic level, the answer to “why not” is very simple. Commercial surrogacy makes both babies and the women who bear them objects to be bought and sold. In other contexts, just about everyone has a problem with that. Baby selling (human trafficking) in its various forms is illegal, and rightly so.

In order to avoid criminal charges, the surrogacy industry twists itself into knots. Contracts must be signed before a baby is conceived; they specify that the prospective parents aren’t paying a woman to birth a baby—they’re just paying for her time and effort in undergoing a pregnancy. To this end, she’s paid in installments, usually by trimester.

And the surrogate mother is asked to sign away her rights, to become an incubator and nothing more.

So Many Problems

The problems are many and various. First and foremost, pregnant women are not robots. As anyone who has carried a child in her womb can attest, you get attached to the little person moving inside you; and the baby likewise gets attached to you, learning your voice, your smell, your heartbeat. Mother/infant bonding begins long before birth.

So what happens if the surrogate mother decides she’s exactly that—the mother?

This was the first surrogacy issue to make it to court, in the 1985 Baby M case in New Jersey. Mary Beth Whitehead was both egg donor and surrogate mother, and after the baby was born, she didn’t want to give up her child. Eventually the courts ruled that no contract could alter the legal position of motherhood: the father was given custody, but Mary Beth Whitehead was awarded visitation rights. That case set precedents that, in many jurisdictions, apply even in cases of gestational surrogacy.

And what if the purchasing parents decide they want to terminate the pregnancy? Surrogacy contracts contain a “termination of fetus clause” asserting that at any point, for any reason, the intended parents can request abortion. If the woman carrying the child says no, she’s in violation of contract and is legally liable.

This came up during Melissa Cook’s third surrogacy (the first ended in miscarriage and uterine infection; the second, for a gay couple, was “successful” but “bittersweet.”) In 2017 Cook was paid to carry triplets as a gestational surrogate. She says of the embryo transplant process:

Although there were also a lot of healthy girl embryos available, the baby daddy only wanted a boy, only boy embryos. The fertility doctor said to him, “We’ve got two really good boy embryos, two of them are really good quality. There is also one little one, but I don’t think he’ll make it whether he goes in or not.” My God! I felt bad for him! I’m like, “Well, let’s give him chance. He deserves a chance as much as his two brothers.” The baby daddy said it was my decision, so the third boy embryo was implanted in me too.

But six weeks later the father decided he couldn’t afford them and demanded some or all of them be aborted; Cook refused. That put her in violation of her contract, and the father stopped paying her. She retained a lawyer to gain custody of the children, but they were taken from her at birth under California’s surrogacy laws, and she’s heard horror stories about their care. Cook says, “Commercial surrogacy shouldn’t be allowed. You can’t envision everything that could happen and put it all into the contract.”

And there are many other heart-rending stories told by surrogates and children of surrogates who now think the whole process should be illegal.

Illegal Elsewhere

And it is illegal in many countries, even in places that once made a fortune from it. For a long time India, Nepal, and Thailand had the largest international surrogacy industries in the world, Waters and Hafera say. India brought in $2.5 billion in 2012 from surrogacy alone. But these countries discovered the process was so exploitive, so damaging and demeaning for the surrogates, that they banned it for international customers, and strictly limited it within the country. For instance, in India, only heterosexual married couples who have been unable to conceive for five years can be considered for surrogacy arrangements.

And most European countries ban all forms of commercial surrogacy (a few rare ones allow benevolent surrogacy, where no money changes hands). China, France, Italy, Germany, Brazil, Denmark, Canada, and many more ban international commercial surrogacy or even surrogacy within the country.

Did you catch that? “The business is so sleazy that it’s illegal in China,” Simon Hankinson says. “According to the Central Committee of the Communist Youth League of China… ‘human lives are not toys.’ It’s a bad sign when we let Communist China take the moral high ground.”

According to Waters and Hafera, only two nations currently have thriving international surrogacy markets: the U.S.—where children born to surrogates are American citizens (even if it’s a gestational surrogacy and neither egg nor sperm originated in the U.S.), and Ukraine–where surrogate mothers live in bomb shelters to protect their investors’ babies.

It’s Not about Babies

At first glance it might seem counterintuitive that the same people pushing for commercial surrogacy are often the same ones pushing for abortion rights (as is the case with the senators sponsoring the Right to Build a Family Act). But it makes perfect sense. In both surrogacy and abortion it’s all about what adults want—to have a baby, to not have a baby. The child’s best interests are ignored.

Jessica Kern was born of surrogacy and has found it in many ways a bitter pill to swallow. She says:

I think commercial surrogacy is wrong. It really is the buying and selling of babies, and the commodification of women’s bodies.

There’s a huge difference between the adoption world and the donor-conceived world. The institution of adoption was not created primarily for the benefit of people wanting to be parents. It was created for the opposite—for the benefit of children—to respond to the catastrophe of children already here but with no parents or family, and who need a loving home.

With commercial surrogacy, on the other hand, we’re creating and bringing children into the world with the deliberate intention of separating them from their biological mother, and you know, that is a vastly different thing.

My own life is a perfect example of what can go wrong when science and the culture of entitlement meet—pitting the selfish desires of adults against the ultimate well-being of children.

Genesis tells us that Sarah had her maidservant bear children for her, and they both lived to regret it. Infertility is a grievous wound. But some wounds are not for us to heal, at least not with a devil’s bargain that commodifies both women and babies. Childlessness is a grief, but it’s a natural grief, one that can be carried with dignity. The grief resulting from commercial surrogacy is both unnatural and demeaning to everyone involved.