In the aftermath of legalized same-sex marriage, Americans may soon face a new ethical dilemma: commercial surrogacy. As Christopher White reports in his article on The Public Discourse, Surrogacy and Same-Sex Marriage: A Tale of Two Countries, the issue of “marriage equality” is morphing into the question of “family equality.” As White observes, “While many consider the contest over same-sex marriage in the United States to have been settled by the Supreme Court, the debate over surrogacy is just beginning.” Within the last decade, an increasing number of homosexual couples, especially gay men, are turning to surrogates in order to have genetically related children.
Ireland, where the legalization of same-sex marriage occurred just weeks before the U.S., is no stranger to this ethical question and gives some insight into the cultural debate. Days before Irish citizens voted on the referendum, the concern over third party reproduction made headlines. Those voting “Yes” assured the public that surrogacy and same-sex marriage were two separate issues. Those voting “No,” however, feared that the right to marry would lead to a demand for the right to procreate, despite the obvious biological impossibility. Discussing commercial surrogacy, in which a couple hires a woman to carry an embryo, Ireland’s Iona Institute, a Catholic organization, claims it exploits women. The 2013 Iona Report states, “In surrogacy, the woman rents her body. This should at a minimum alert us to the very strong possibility that surrogacy is a new form of exploitation and trafficking in women. In surrogacy, the child is treated as a commodity, the object of a legal agreement. The aim of surrogacy is to fulfil [sic] the desire of adults, to enable foreign parents to satisfy their wish for a child at any price.”
Contractual surrogacy isn’t the only problem. Even without a legally binding agreement, the definition of parental origin, or “parentage,” comes into play. In Britain where surrogacy is legal (as long as it’s not a commercial, business arrangement), a High Court judge settled a parental rights dispute of one homosexual couple and their surrogate in May 2015. Since the child belonged to the mother (artificially inseminated by her gay friend), she was not legally required to give up her parental rights. The homosexual couple had to apply for a parental order to legally become the child’s parents. But, according to the birth mother, she always intended to keep her baby, and after giving birth, refused to give the infant to her gay friend. She even implied the two men would not be good parents, something the judge called “homophobic and offensive.” The judge ruled in favor of the gay couple, requiring the woman to relinquish her rights as a mother.
Despite the growing number of homosexual men who make use of it, White notes that many people of the LGBT community actively oppose the practice of surrogacy.
People like Julie Bindle, a lesbian feminist in the UK. Bindle observes, “[C]ommercial surrogacy is fast becoming the preferred route for gay couples to have children, so much so that the trend is now known as the ‘Gaybe’ revolution.” Like many others, Bindle is outspoken in her disapproval of surrogacy among would-be homosexual parents, calling it “reproductive trafficking.” For Bindle, the problem isn’t a gay couple’s desire to have a family, but to demand a family in which the children are biologically related. In her scathing commentary, she says, “If gay couples want children, why on earth do they have to go down this exploitative route rather than adopting a child? The answer raises a profoundly troubling question about the attitudes of too many gay and lesbian couples. Fixated by vanity, imbued with overweening self-regard, they want to create a child in their own image, meeting a checklist of ideal characteristics.”
Bindle isn’t alone. Famed feminist author, Germaine Greer, accused Elton John and his partner (who have two sons through surrogacy) of “deconstructing the concept of motherhood.” According to Greer: “We now have a ‘genetic’ mother, who supplies eggs. It depends entirely on where she is if she is going to be allowed to know what happens to the eggs.”
And the question of “where she is,” brings up another issue. In India, where commercial surrogacy is permitted, women offer themselves as surrogates for cash. The nation’s multi-million dollar surrogacy industry, also known as “reproductive tourism,” allows travelers to hire a low-income woman to carry their embryo. It is, quite literally, a rent-a-womb business. For most surrogate women in India, the practice is done to pull themselves out of poverty. Recently, India started regulating commercial surrogacy, forbidding same-sex couples and single parents from contracting a surrogate. As Arthur Caplan argued in a New York Times debate last fall, the ethical problem is not with “altruistic surrogacy.” Rather, “[i]t is paid surrogacy that gives me ethical heartburn, especially paid surrogacy that involves travel to other nations to find poor women to bear babies. The problem is exploitation.”
Here in the U.S., laws on surrogacy contracts vary from state to state. New York, for instance, prohibits all surrogacy contracts, while in California, both surrogacy and pre-birth orders of parentage are permitted. States like Texas, Illinois, and Florida allow surrogacy with certain conditions, but the adoptive parent(s) must apply for legal parentage after the baby’s birth. For now, individual states have determined the ethical boundaries for surrogacy. But with the legalization of same-sex marriage, we’re not far from legislating commercial surrogacy as a prerogative for same-sex couples.
California already has. Two years ago, Governor Jerry Brown, signed a law that required insurance companies to provide “fertility treatments” to same sex couples in California. Tom Ammiano, who drafted the law, claimed, “To restrict fertility coverage solely to heterosexual married couples violates California’s non-discrimination laws.” The law ensures “the same access to insurance coverage for fertility treatments as heterosexual couples.” For lesbian couples, in vitro fertilization is a biological option. But for homosexual men, the right to have biologically related offspring logically requires a surrogate.
White’s article also points to an op-ed in the LA Times written by Douglas Nejaime. Just after legalization of same-sex marriage in the U.S., Nejaime observes, “While lesbian couples have long used donor insemination to have children, gay male couples have increasingly turned to surrogacy, and most commonly gestational surrogacy, in which the surrogate carries a child genetically related to another woman — an egg donor — and one of the men.” For Nejaime, supporting gestational surrogacy contributes to family equality. He continues: “The battle over LGBT equality is far from over. But the court’s embrace of marriage equality takes a stand for sexual-orientation equality, and it should mean that ultimately lesbian and gay families will receive equal treatment under the law.”
The ethical dilemma surrounding surrogacy, same-sex couples, and “family equality” is the logical progression of same-sex marriage. If a same-sex couple is considered married with all that being married implies, and if biological procreation is considered a right for all married couples, then it follows that same-sex couples may legally demand the right to procreate. And since that is biologically impossible, they must look to other solutions, like surrogacy, to fulfill that demand.
Ultimately, the practice of surrogacy, especially commercial surrogacy, exploits women for their reproductive capacity. It uses women’s bodies for the sake of having genetically related offspring. And, it reduces a woman’s role in raising a child to a nine-month pregnancy.
Commercial surrogacy separates female biology from women’s maternity. As this issue continues to develop, we must affirm that motherhood is an indispensible role in the life of a child, one that entails so much more than biological birth. And, as same-sex couples attempt to form genetically related families, we can never forget that every child is worthy of being raised by a father and a mother. Finally, we must reject any practice that exploits women for their reproductive capacity. A woman’s womb is sacred; it should never be for sale.