Contract Children

A very rare extra-judicial testimony of an early case of surrogacy comes from the '70s in the Netherlands.[8] Juliette Zipper and Selma Sevenhuijsen recount that a woman of the feminist movement gave birth to a child conceived with her single ex boyfriend on his behalf. The man then raised the child without a close mother figure. It was all perfectly legal, as he had the written permission of the mother to recognize the child, which in the Netherlands is requested when parents are not married. He later obtained sole custody. "We never considered her arrangement concerning parenthood a relevant issue for feminism," conclude the authors, who personally knew the people involved (Zipper and Sevenhuijsen 1987, 118).

This kind of surrogacy, which did not even have a name and now is called "traditional" surrogacy, had the beauty of simplicity: no splitting of the mother figure was yet possible. The woman carrying the child was universally recognized as its mother: half the genetic material was hers, she bore and gave birth. That she should renounce her prerogatives as a mother could not be taken for granted by the intended parent(s): the last word was hers. Where surrogacy is unrecognized or forbidden by law it is still like that: the agreements cannot be prohibited by contrary authorities since they go undetected.

It was the Michigan lawyer Noel Keane who invented the expression "surrogate motherhood" and popularized the practice in the US by setting up an agency for intermediation. He got the idea in 1976 from a piece of news regarding a gay man who had a child in San Francisco by a woman whom he paid 7,000 USD to be let alone in raising their offspring. Keane started in the same year: while the surrogates were reimbursed with 10,000 USD, his center got 7,500 USD just for intermediation and legal paperwork. He advertised it on the Phil Donahue television show and, even after the exposure of the dangers of these agreements in the Baby M case, which he had arranged, he found scores of willing "surrogates," whom he matched with infertile couples in intermediation centers all over the US.[9]

In the second half of the '70s, IVF and embryo transfer were engineered, and from the end of the '80s surrogacy increasingly involved the use of these assisted reproductive technologies (ART from now on). But to define surrogacy as just one ART among the others is completely mistaken, though indeed very common. One example is Ciccarelli and Beckham (2005, 49) calling it a "new technology." Sometimes surrogacy is even called a "treatment" for "infertility," which in fact is not an illness, since the infertile body is per se absolutely healthy. Like most remedies for infertility, surrogacy is definitively not a therapy. A possible source of this confusion is that surrogacy agreements have been forbidden by the laws regulating ART in many countries, such as Italy, France, and Germany.

In sum, surrogacy is the arrangement to use a woman's bearing capacity, and essentially is neither an ART or a contract. Some authors already take for granted its use only to avoid pregnancy. This does not currently seem to be the norm, but could become a more frequent development.

Together with the use of donated gametes, surrogacy is called "third-party reproduction," a terminology that indicates that to overcome their couple infertility, the would-be parents need a third party, somebody who is biologically contributing without becoming a social parent. Still, "third-party reproduction" is a very questionable term, as it lumps together sperm donation, egg donation and surrogate motherhood. The procedures are of course very different: if the third party is a man, his contribution is his sperm, pleasurably detachable from the male body.[10] If the genetic third party is a woman, her egg must be accessed with laparoscopy under anesthesia. In surrogacy, despite the wide use of the disparaging synonym of "wombs for rent," a whole woman is needed to complete the pregnancy process, which is long, inconvenient, cumbersome, risky and painful at delivery and often also before it.[11]

In general, our much relished principle of equality between the sexes has no meaning in human reproduction. Not only is it inappropriate to use concepts of equality or equivalence between the sexes in their biological role in this matter, but, as our culture is so strongly pervaded by ideas and ideals of equality, we risk blinding ourselves to the evident lack of proportion in the male and female contribution to reproduction,. My discussion with a friend about surrogacy ended nonsensically when, answering my rather commonplace remark that men cannot have—in the meaning of "make"—children, so they should respect the will of women in this matter, she replied: "But that is not fair!" Her view implied that there is a right for men to procreate with their sperm: but who will have to fulfil the corresponding duty and how? The jurist John A. Robertson (1983a, 1983b, 1986[12]), an advocate of surrogacy contracts, argued that the US should apply the "equal protection" principle, inscribed in the Fourteenth Amendment to the Constitution, to surrogacy as it otherwise would discriminate among fertile and infertile individuals, and among these between infertile men and infertile women. He would like to configure a right to noncoital reproduction that would in parallell allow the artificial insemination of women to remedy men's infertility, and surrogate motherhood to remedy women's infertility.[13] Again, whose duty will it be to fulfil this hypothetical right? No one can be forced to contribute, either genetically or much less with their whole bodies (that is, with a woman's body) in order for somebody else to be able to become a parent. Not only is it impossible for such a right to exist (though, indeed, a right to reproduce through women's bodies has been asserted through most of history with the collective exploitation of women by men), but it would not even be advisable to introduce it in the present context of a growing human population, already consuming—in the most unequal way in all human history—half of the world's biomass resulting from photosynthesis (Pimentel 2001). This ecologically unsustainable situation should not be fostered with such a "right to reproduce" for those who are unable to do it without ART. The choice to be childfree should be celebrated as ecologically sound, relieving the infertile from their feelings of guilt, inadequacy and social failure—though of course the real remedy to the ecological crisis is to stop and change society's goal of capital accumulation, interrupting the capitalist D-M-D' circuit in favor of degrowth (e.g. Badiale and Bontempelli 2010).

The jurist Martha Fineman has dedicated her work as legal theorist to uncovering the problems that the diffuse legal culture of applying the equality principle between the sexes to family law have created:

The evolution of de-gendered legal rules regulating families is more than a mere change in language reflecting the aspiration that all parents, male as well as female, will nurture and care for their children. Gender neutrality has substantive implications and signals a change in orientation in which caretaking is devalued and biological and economic connections are deemed of paramount importance. (Fineman 1995, 70)

She writes against "the gender-neutral fetish of liberal legalism," that does injustice to the mother/child relations in situations of divorce or forced recognition of fatherhood. She baptizes the current situation "the neutered mother." The influential idea of the interchangeability of parents has also symbolically had the pernicious consequence of canceling from our culture the recognition of female powers in reproduction, and the pregnant woman's unique relationship with the new life that she generated:

an important component of the neutering process has been the designation of untraditional forms of motherhood as "pathological" or deviant. This stigmatizing process makes mothering outside of the context of a two-parent, traditional family susceptible to extensive legal regulation and supervision. Mother and child alone are incomplete and insufficient—the cause and perpetuators of social decay and decline. (Fineman 1995, 68, see also Fineman 2009)

A solution to these problems, according to Fineman, calls for a restructuring of our worldview because if we proceed from the idea that the cornerstone of society is an autonomous individual, we consider relations of dependency as exceptions, while they are the norm. We can find them not only in procreation but in illness, disability, old age. The whole process of social reproduction demonstrates the preeminence of dependency and care in the human relations that constitute society. Moreover, the history of late capitalism has proved that social justice is impossible to attain on the basis of the fiction of the "autonomous individual."

Similarly, taking a closer look at our idea of the family, we find that the two spouses occupy center stage: an adult man and an adult woman, both generally active in the labor market, plus only eventually their dependent children. Fineman calls this family concept "the sexual family," noting that its same-sex variant is increasingly getting legal and social recognition. But this definition of family extols autonomy and the sexual bond, excluding from its concept the necessary care to be given to dependents. The importance of care would be recognized if we adopted a different central image of the family, as basically composed of Mother and Child, a symbolic dyad exemplifying the basic ties of human dependency and care. This dyad should become our central idea of human interaction—what we call the family—while we should stop celebrating the individual (as he or she is autonomous only for a part of his or her life, and always vulnerable) and his or her voluntary sexual acts, which should not be of interest to the legislator. Fineman urges that the sexual bond must remain a private and free feature of social life, without foundational power in family law. How to organize one's sexual life should not be a concern of the state, and marriage—valuable as a private ceremony for those who believe in it—should not entail any legal value nor prescription. Besides, we must also note that not only the autonomous individual, but the sexual bond as well have proven fleeting, ephemeral, unpredictable—especially in contemporary circumstances, as the high and growing divorce rates demonstrate. The dependency bond generally lasts much longer and it is based on unforfeitable needs.[14]

The Mother/Child dyad is just a symbol (therefore the capital letters), standing for all situations of dependency and caregiving that constitute a family, and does not deny that men can be caretakers, too—though, regretfully, we do not see much of it in contemporary society. This dyad has also the cultural advantage of being an ancient symbol, and a contemporary reality, as more and more babies are born outside marriage bonds, raised by single mothers, while ex wives continue to be the main carer for the kids after a divorce.

The public support that in the US, where Fineman lives (but also elsewhere), is currently offered to couples, both materially and symbolically, should be better directed towards this true nucleus of human society. Single mothers are instead blamed for the ruin of America, while the sexual family is supported, for example, with tax reductions for the purchase of a home, splitting income for taxes, and all the similar benefits reserved to couples, that nobody questions or perceives as privileges—a fact analyzed and denounced also by the economist Nancy Folbre (2009). Exposure of the devaluation of care work in society and in social theory is a common theme for these authors and for the political campaigns started in the '70s by the feminist group Wages for Housework (see the works of Mariarosa Dalla Costa, Selma James, Silvia Federici). They theorize the profitability to capital not only of wage work, but of unwaged work, mainly performed by women in the family.

In implicit agreement with this political school of thought, Fineman is adamant that to substitute the current idea of the basic familial tie as a sexual tie between a woman and a man, with the dependency tie between Mother and Child should not mean that the social reproduction burden must always fall on mothers' shoulders (though there is a danger of this restrictive cultural interpretation). Responsibility to raise the next generation of human beings should be collectively assumed, helping the family (that is, basically the dyads) with public and collective services and benefits.

I can add that this revolutionary centering of the family on the Mother/Child relationship would have very important consequences on the way we both theorize and concretely deal with human ties, steering us in the direction of a renaissance of matrilinearity and matriarchy, as defined by Heide Göttner-Abendroth (e.g. 1980). Her studies on past and contemporary societies with matriarchal patterns describe egalitarian groups where women enjoy freedom—and not societies where power relations between the sexes are just reversed, as the name "matriarchy" would suggest if interpreted as simply the feminine form of "patriarchy." Were these ideas central to contemporary society, they would help to dispel our doubts about how to consider surrogacy—especially after the introduction of ART. Unfortunately we must start from the current and very different idea of the family as based on the sexual tie, so its concepts and labels must be deconstructed in order to be able to grasp what is really happening in surrogacy where ART are involved.[15]

First BIG question: Who is the mother?

As Karl Marx said, technology introduces new possibilities that re-arrange human existence and human relations. When reproductive technology enabled the implanting of embryos in wombs, even from another woman's ovum, the language of kinship acquired a new meaning, and the legal constructions based on it were called into question. The figure of the "mother," already divisible into a birth-biological-genetic mother and a social one in the cases of formal or informal adoption and of "traditional" surrogacy, endured a further split. From then on, the birth mother, carrier of the embryo/fetus, could be a different woman from the one furnishing the genetic material, that is the egg. It appeared logical that the woman whose egg has been fertilized[16] should also be considered a "mother," entitled to share the attribution of biological motherhood with the birth mother who has carried the fetus to term. For example, the jurist Alicia Benedetta Faraoni (2002, 332–3) jokingly comments upon the "scientific revolution" that has called motherhood into question, saying that the famous Italian motto "di mamma ce n'è una sola" (the mother is only one—we have just one source of unconditional love and material support) is not true anymore: "Today one can have two, even three mothers, as the Tribunal of Rome wrote," in its decree on a case of surrogacy. These are the court's words:

In the cases of surrogate motherhood the question of "who the mother is" cannot find an answer from a scientific point of view, as both subjects appear to be causally necessary to the process conducive to the birth; both women have a biological connection with the child. What is noteworthy, instead, is the problem of defining who will be the person having the duty to care for the newborn after delivery, and which of the two women should be considered socially responsible.[17]

But there is no ambiguity. The doubt and the confusion about exactly which figure is duplicated in this kind of ART stem from language, not from a supposedly essential modification of the biological process of procreation inaugurated by ART. Our languages have been forged over the ages in which the technical possibility of separating egg contribution and pregnancy was inexistent. The divisibility of these acts through ART has given rise to conceptual problems, as language does not change so easily, and the same word "mother" now stands also for a new concept: the egg contributor.

"Gestational surrogacy" (also called "full surrogacy") comes in two forms: either using the future social mother's egg or a donor's egg. Using an egg from a woman other than the surrogate is a practice that has been developed over the last thirty years, and some say that it has now become the preferred one, as it can allow a couple to have a child that is genetically theirs. But the purpose for using donor eggs is to cut off the surrogate from claims of motherhood based on genetics, and purportedly even from her feelings, extolling DNA provenience over pregnancy.[18] In California gestational surrogacy seems to have nearly replaced traditional surrogacy, which was simpler both from the point of view of the technique and from the cultural consideration of the facts about motherhood. A lawyer working in Oakland with decades-long practice with surrogacy contracts affirms:

The non-related surrogate is the general case now. Usually it is the donor's egg or the mother's egg, and the surrogate is not related: they call it gestational surrogate. This happens in 90% of the cases, the other 10% is what they call traditional surrogacy and the surrogate is officially inseminated in the doctor's office, usually. Then 1% is actually doing it at home, and there are financial reasons: they can't afford the IVF procedure. (Personal interview, January 2013)

Nevertheless the true proportions are unknown, though there are countries, as we will see, that mandate the gestational form in order for the agreements to be approved.[19]

From the material point of view, the (nonmonetary) price of the surplus of medical interventions to perform a gestational surrogacy is paid for by the surrogate mother, who submits to an unnecessary surgical operation to implant the embryo, and to avoidable but obligatory hormonal stimulation in the name of efficiency. From a contemporary cultural point of view, the lack of her genetic contribution tilts the balance of power in favor of the intended parents (whether the gametes come from their bodies or from a purchase) over the centrality of the pregnancy process in procreation. It is here that the true innovation lies, and it is cultural more than technical. The first IVF with a "donated" egg and the consequent embryo transfer into the womb of another woman, did not create another "mother," the mother only by genes, but shifted the whole position of females in matter of procreation. A woman can now have the male experience of externally expecting a child that is genetically hers, if another woman bears the embryo derived from her egg. With IVF, women have assumed a role previously reserved to men, from gamete donation to the external wait. Of course there have always been similar situations: in adoption both the woman and the man wait "externally" for a child to come into their family, but the child is never genetically related to them. In surrogacy instead, for the first time since the beginning of the human species, there is the possibility for women to share the universal fathers' experience. An act of emancipation, perhaps, maybe even a step towards gender equality. But, more exactly, the emancipation from the "slavery of pregnancy" that Simone de Beauvoir dreamt about and Shulamith Firestone hoped for, is realized through the bodily engagement of an