Surrogacy

1. Surrogacy Transformations: Gender Reproduction and Contemporary Society Week 20

2. Tried to adopt HIV+ • toddler from Ukraine • Denied on grounds of • their sexuality • Zachary born to • anonymous surrogate • mother in California • She was paid $20,000 • January 2013 had 2nd • son Elijah, same • process

4. What is surrogacy? • Surrogate: ‘One that takes the place of another; a substitute’ (Free online dictionary) • HFEA: ‘Surrogacy is when another woman carries and gives birth to a baby for the couple who want to have a child’. • Traditional / partial surrogacy: sperm from the intended father; egg from the surrogate (usually, AI) • Gestational / host / full surrogacy: no genetic relationship between the surrogate and the embryo (IVF) • Why are gestational surrogacy rates rising?

5. Surrogacy and the UK law • Commercial surrogacy is illegal (including advertising) • Reasonable expenses can be paid, up to £15000 • Assumption that surrogate’s motives are altruistic • Surrogacy arrangements are not legally enforceable • The surrogate is the legal mother of the child (and if married, her husband is the legal father) • Intended parents can apply for a parental order if: • At least one of them is genetically related to the baby • Husband and wife / civil partners / living as partners • Intended parents can apply for adoption if: • There is no genetic relationship with the baby • They apply through a registered adoption agency

6. Prevalence of UK Surrogacy • COTS founded 1988 • by Kim Cotton • COTS reported 600th • baby born to surrogate • in 2006 • Report that 2% of • surrogates change • their mind www.surrogacy.org.uk

7. Kim Cotton (1985) • Paid £650 by Swedish couple • Surrogacy organised by US • agency • Baby removed from her on day of birth • Courts ruled in baby’s best interests to • be with commissioning couple • Kim had no contact, which she regretted • Case prompted commercial surrogacy to be made illegal in UK • 1991 had twins for a friend, retains contact with child

8. Surrogacy and the US law • Commercial surrogacy is legal in most states • Payments of $20,000-40,000 for the surrogate, $10,000 for the agency • Surrogates are contracted and can be sued for breach of contract • Commissioning couple get parental rights and responsibility from birth • Differs from adoption • Disputes are resolved by the courts • Outcomes reveal dominant discourses about surrogacy and about ‘fitness’ to mother

9. Baby M case (US) • ‘Traditional’ surrogate: Mary Beth Whitehead • Genetic father: Bill Stern • Intended mother: Elizabeth Stern • March 1986: Sara Elizabeth Whitehead is born (later Melissa Stern) • After transferring custody, Mary Beth changed her mind • 1987: custody awarded to Stern and allowed Elizabeth Stern to adopt the baby • 1988: following appeal, adoption reversed, parental rights restored to Whitehead, custody awarded to Stern, with visitation rights to Whitehead. • At 18 Melissa Stern terminated Whitehead’s parental rights and was adopted by Elizabeth Stern

10. Baby T case (UK) • ‘Traditional’ surrogate: Miss N, via self-insemination • Genetic father: Mr W, a top chef • Intended mother: Mrs W, a full-time housewife • July 2011: Baby T born • Miss N had received £4,500 expenses of the £10,000 agreed • Allegations from all parties about other being ‘unfit’ to parent • Court ruling: ‘There is a clear attachment between mother and daughter…[Baby T’s welfare] requires her to remain with her mother’ (Mr Justice Baker) • Mr W gave up his contact rights • CSA ruling: Mr W to pay £568 pcm in child support

11. Johnson vs Calvert (US) • 1990: Gestational surrogate: Anna Johnson (African-American) • Commissioning couple: Crispina Calvert (Filipina) and Mark Calvert (White) • $10,000 fee • Both sides filed custody suits • Court focused on the ‘intent’ of the parties • Parental rights given to the Calverts

12. Discourses of family, ‘race’ & class • ‘…how did Johnson rather than the Calverts come to be positioned as exploitative and parasitic, when the Calverts paid Johnson what amounted to approximately $1.54 an hour – well below the minimum wage – to satisfy their genetic yearnings and gestate their zygote? Who exactly was the instrument of whom?’ • Johnson ‘entered the public discourse a densely scripted figure, positioned in and by a crude, if common place, set of racial caricatures and cultural narratives about the “the way black women are’”. • Source: Hartouni, 1997: 95 • Mary Beth portrayed as ‘white trash’ • Anna Johnson caricatured as ‘black welfare queen’

13. When is a mother not a mother…? • Intended father’s view of his gestational surrogate: ‘I don’t think about it much. She was an oven… she doesn’t see herself as the mother. We don’t see her as the mother and that’s the way it is’ (Ragoné, 1994: 75). • Phoebe in Friends: ‘It’s her… It’s her egg and his sperm, and I’m, I’m just the oven, it’s totally their bun’ (Episode 4.11). • A Mexican-American surrogate mother in the US: ‘No, I haven’t [thought of the child as mine], because she’s not mine, she never has been.’ (Ragoné, : 66)

14. The ‘gift’ of the womb • Easier to ‘give up’ a baby the surrogate is not genetically • related to • The ‘gift’ is the use of the womb www.information-on-surrogacy.com/

15. Surrogacy and ‘Race’/Ethnicity • ‘Gestational surrogacy invokes the possibility that white middle-class couples will use Black women to gestate their babies. Since contracting couples need not be concerned about the gestator’s genetic qualities (most important, her race), they may favour hiring the most economically vulnerable women in order to secure the lowest price for their services. Black gestators would be doubly disadvantaged in any custody dispute: besides being less able to afford a court battle, they are unlikely to win custody of the white child they bear, as the Johnson case demonstrates’ (Roberts, 1997: 282). • Traditional surrogacy tended to ‘match race’ • Gestational surrogacy shapes ‘surrogacy tourism’

16. Responses and concerns • Commodification – of babies? of women? • Commercialisation of reproduction • Exploitation of (some) women • ‘Slave women were treated as surrogate mothers in the sense that they lacked the claim to the children whom they bore and whom they delivered to the masters who owned both mother and child’ (Roberts 1997: 278) • Confusion for children? • Enabling the ‘unfit’ to reproduce? • Radical vs. liberal feminist responses • Margaret Atwood’s The Handmaid’s Tale (1985)

17. TheHandmaid’s Tale: Margaret Atwood • Surrogacy as coercion • Biblical examples: Rachael & Jacob, • Abraham & Sarah • Republic of Gilead: post-nuclear US • Lower status fertile women • trained by ‘Aunts’ • Monthly impregnation by • Commander • Banished to Colonies if fail • to produce a healthy child

18. Surrogacy and Multiple Parenthood • ‘To be a parent, one must possess some of the defining features of parenthood, such as a gestational, genetic, intentional or social relationship, but all of these features need not be common to all parents. Acknowledging the possibility of multiple parenthood has the implication that the adoptive or intending parents cannot insist on modelling their family directly along the lines of the nuclear family. Having reinterpreted parenthood, we should also be prepared to reinterpret the family’ (Zyl and Niekerk, 2000: 408)

19. Conclusions • Traditional and Gestational Surrogacy need to be distinguished • UK law contrasts with US law (altruistic vs. commercial surrogacy) • Court cases in US reveal power of dominant discourse that middle-class white people make better parents • Surrogacy arrangements are often structured by inequalities between the parties • Surrogacy fragments parenthood • Surrogacy perpetuates idea that women should be mothers and other women should help them to achieve that if necessary • Surrogates may choose, but not in conditions of their own making