Let me be plain up front: I oppose surrogacy. In it I see the same heartless exploitation of a woman as I see in prostitution. The idea that one can “rent” another person’s womb or another person’s vagina and just walk away is deeply misogynist. A body is not a piece of machinery you own. A body is your way of living in this world. “You” and your body co-exist as one living being.
Nations have, thankfully, begun to limit this type of exploitation; in some nations, the practice is entirely illegal; in others, the contracts are deemed legally unenforceable if there is a dispute; in others, only within-nation or within-family surrogacy is allowed. Some nations insist on identification of the individuals providing egg, sperm, and gestation. Other nations put “surrogate” mothers on the birth certificate, and only formal adoption can change that designation. It should raise alarm bells that a child can be created through surrogacy without having to undergo the “legal hoops” required in adoption to ensure the child will have a good home.
Recently, we have seen the first stirrings of an “unblinding” of the sightlessness which makes surrogacy legal and prevents us from seeing its true, heartless character. In a British court case decided last year, a gestational mother who did not provide the egg for conception was given formal visitation rights with the child to whom she gave birth.
Though I have not been able to access the judge’s full decision in the case, this decision represents stunning progress towards a reality-based legal treatment of surrogacy—one that is long overdue. So let me suggest what should have been the reasoning in this case (though, of course, as an opponent of surrogacy I would rather seek to ban the practice altogether).
What is kinship? In this case, the “intended parents” asserted that kinship is solely based on DNA. One of the “intended parents” provided sperm for the conception to take place; they had already bought an egg on the international market. They then “purchased” the services of a woman to carry that embryo within her body for nine months and to then undergo childbirth to deliver that baby into the light of day.
The comments to the above journalistic piece about the case are very interesting—most claim that the woman was just an “oven” or “incubator” that had no kin relationship whatsoever to the child. In this, the commenters echo the legal reasoning of the “intended parents,” to wit, DNA=kinship; no DNA=no kinship.
But of course, this is a masculinist and, in the end, misogynist point of view. A man’s claim to biological relationship is only by means of DNA, yes. But that is not true about women. I argue that women can claim a profound biological relationship with an individual whom they have carried in their bodies for nine months and who together have undergone the incredible biological experience of childbirth. Such women have every right to call themselves kin to that child, and to call themselves not “surrogates” but gestational mothers. In this particular case, since the “intended parents” were both male, the gestational mother of this child is the only mother he or she will ever have. Relevant to this point is that the UN’s Convention on the Rights of the Child in Article 7 Subsection 1 asserts that every child has “the right to know and be cared for by his or her parents.”
So does pregnancy and childbirth establish a biological bond between a baby and a woman? The very fact we have to ask this question in 2017 demonstrates have much we have devalued and demeaned the female experiences of pregnancy and birth. In choosing to be “blind” to this biological relationship, we have taken a strictly masculinist point of view, ignoring what women and their unborn children actually experience in pregnancy and birth. As a feminist, I find this completely reprehensible.
Fortunately, science is undermining that untenable position. The more we understand about the uterine environment, the more we realize that a woman is indelibly biologically bound to the children she has carried within her body, and that a child is indelibly biologically bound to the woman who has done so.
From what and how much she eats to how she feels emotionally, the uterine environment is being recognized more and more as a critical factor in child development. The uterine environment winds up even affecting the grandchildren’s generation. Why? Because the uterine environment is profoundly affecting the epigenetics of the child. Researchers now understand that DNA is not completely causative; it is how that DNA is methylated that is as important. And the uterine environment will be the primary force shaping that methylation, accounting for 75 percent of an organism’s methylation pattern.
In addition, the mother’s microbiome will also affect epigenetics tremendously. The bacteria with which the mother inevitably seeds the child’s gut through childbirth will strongly affect not only conditions such as obesity, but also mood. Furthermore, the baby is constantly receiving chemical signals about his or her mother’s mental state through the placenta, influencing the unborn child’s brain structures. These two biological units, mother and child are integrally linked, and the child is profoundly shaped by its mother, whether or not the child shares any DNA with her.
Furthermore, there is now a plethora of studies about how a baby comes to “know” their first other human being, their mother, not just through these placental links, but also through the mother talking to, singing to, and even caressing her baby through her skin. These nurturing acts “wake” the baby not just emotionally, but intellectually as well. The mother is the child’s first friend, first other human-to-human relationship.
Want an all-around primer about the biological relationship between the mother and the baby she carries? Check out Origins: How the Nine Months Before Birth Shape the Rest of Our Lives by Annie Murphy Paul (though the science has progressed even from when that book was published in 2010.)
Furthermore, science now tells us that cells from her baby (even if she has not provided the egg) will circulate in that mother’s system forever, and alter her very physical being. They lodge themselves in the mother’s tissues, and even aid in repair—and have even been found in the mother’s brain. This is called “microchimerism.” (See, for example, link and link.)
Not limited to baby-to-mother transfer, this microchimerism also goes the other direction—a mother’s cells also live in her baby. Every wonder how your mother always knows when there is something wrong, even you and she are not in the same location? Maybe there is more to it than we have always thought.
With all this new evidence, it becomes increasingly impossible to assert that the woman carrying a child has “no biological relationship to it” and is not the child’s “mother.” Science tells us the opposite. Indeed, the biological relationship established in pregnancy and birth conclusively rivals that of the sperm donor and is fully deserving of legal respect. At birth, the bond between gestational mother and child is qualitatively and measurably stronger than the bond between sperm donor and child.
That sperm donors do not wish to recognize this fact—or to have the legal system recognize this fact—is wrong, then, on several levels. Their argument is not based in biological reality and it is not based in morality. It is based solely on the concept of contract—the same contracts created by men that created prostitution and the sale of individuals as slaves. (For an excellent treatment of this topic, see Kajsa Ekman’s Bought and Being Bought.)
It is time to say that surrogacy contracts must be illegal. Just as the Nordic Model demands the abolition of the use of women’s body in prostitution through “contract,” just as humanity has enforced the abolition of slavery, we must rise and fight this heartlessness. Surrogacy, prostitution, and slavery are, simply put, cut from the same cloth; they are crimes against humanity. In surrogacy, the crime committed is against both the gestational mother and the child. Civilized societies must rise and reject the use of a woman’s body in surrogacy even through “contract.” If you desire to be a parent and are infertile, then go through the “legal hoops” and adopt.
And as we fight this good fight, remember never to call these women “surrogates.” They are gestational mothers. And as mothers, they have a right to be on that birth certificate, the right to claim kinship with the child, the right to remain in that child’s life, and even the right to not adopt out their child.
Thank you, Lord Justice McFarlane, for leading the way. Your ruling helps take the blinders off our eyes so we can begin to see reality and morality. The world should be deeply grateful.
V.M. Hudson is a feminist who sees that some stances mainstream feminism has taken are, upon reflection, anti-feminist. She is also professor of political science at The Bush School of Government and Public Service at Texas A&M University.