From Columbia Law School Professor Patricia Williams, via The Nation

For some years now, the biotechnology of fertility enhancement has been exalted as God’s gift to the biblically barren. A relentless narrative of entitlement intertwined with prayerfulness has framed infertility as a tragedy, an oppression, an agony, a disease. Some have proclaimed a “right” to a “natural,” biologically related child, a child “like me.” Unusually large Middle American families–some with up to eighteen children–are offered movie deals and television programs.

Against the backdrop of a cold, impersonal and lonely world, these well-feathered and overly populated nests look villagey and warm. It’s an undeniably seductive vision, even if other options like adoption and fostering are almost never mentioned. Also less discussed are the side effects of this mad race for biological generation at all costs: the likelihood of multiple births, low birth weight and birth defects; the ethics of using poorer women as fetal hatcheries; the health risks to young women who have their “Ivy League” eggs extracted for handsome sums of cash.

There are loads of good reasons to think about regulating these medical procedures; we should have come up with something other than a “free market” for them years ago. But now, with the birth of Nadya Suleman’s octuplets in Bellflower, California, we are confronting a perfect storm of eugenic outcry. With a plunging economy, all the well-rehearsed elements of the “undeserving” welfare queen are lined up: Suleman is single, disabled, unemployed, on food stamps and has six other children under the age of 8, one of whom is reportedly autistic. She lives in a matchbox-size house with her resentful parents, who think she’s insane. Toss in that funny, foreign-sounding name–which turns out to be, gasp, Iraqi!–and the backlash is in full swing.

No doubt Suleman has emotional problems. But rather than caring about her mental health, much of the media are content to pillory her as a drain on the public dole–selfish, frivolous, calculating and cruel. No Brangelina-style accolades of “God Bless ‘Em” in People magazine. Just impassioned calls to cut off her remaining sources of income and to criminally prosecute the doctor who fertilized her. The Atlanta Journal-Constitution even ran an op-ed calling for the government to appoint a legal advocate for every child born to an unmarried woman, since the “lack of a father’s guidance” must be “a major cause of [children's] suffering.” Furthermore, in the case of Suleman’s children, “the legal advocate would file suit against the fertility clinic or a physician who knowingly contributed to their abuse–life in a multiple-child household headed by a single woman.”

Nadya Suleman’s saga, in other words, has highlighted a deep cognitive dissonance about whether children are “assets” or eternal expenditure, divine joy or devilish curse in a time of dwindling planetary resources. When I first heard of Suleman, my immediate thought was of Andrea and Rusty Yates–married, fundamentalist Christian believers in that ubiquitous story line about going forth and multiplying no matter what. After caring for and home-schooling five very young children with no assistance but prayer, and with accumulating signs of postpartum psychosis, Andrea Yates woke up one morning and drowned all her children with quiet efficiency.

And so the specter of psychotic breakdown haunts me when I think of the Suleman abode: one autistic child, plus 2-year-old twins, plus four other kids ages 3 to 7, plus eight newborns ranging from one to three pounds, plus a grandfather who has gone back to Iraq to earn more money for the family, plus a grandmother furious at the medical professionals who “assisted” her daughter, plus a surreally chipper Nadya, who despite the miserable odds remains enrolled as a graduate student in, of all things, pediatric counseling. This situation is undeniably sheer madness, but the public discussion seems fixated on the question of whether she can “afford” so many kids, as though if she was rich, this would be sane.

This past fall The New York Times Magazine ran a cover story by Alex Kuczynski, fashion writer and self-confessed “cosmetic surgery addict.” Her wish to have a child was framed by fierce determinism, the “natural outgrowth” of marriage to her husband–without whom she “would skip the child.” Kuczynski is married to a man whose “sperm had a track record”–six other children by two prior wives. She, the third bride and twenty years her husband’s junior, described herself as engaged in nothing less than a “battle for my fertility”; having a biological child was “necessary,” a “mad desire,” a “compulsion” and “proof” of the marital bond, without which she faced “wrecked hopes” and an “abyss of grief.” Indeed, to die “without having created a life is to die two deaths: the death of yourself and the death of the immense opportunity that is a child.” When she thinks she’s pregnant, she feels a “shiver of victorious accomplishment…. my own fecundity triumphant.” When she tells people she’s not, she feels “barren, decrepit, desexualized,” “branded with a scarlet ‘I’ for ‘Infertile,’” “the dried-up crone with a uterus full of twigs.”

Just because Kuczynski is married and wealthy does not make her less obsessive or more profound than Suleman. Kuczynski sounds like a sad, silly child mooning over “fertile but fit” stars like Halle Berry, Nicole Kidman, Salma Hayek and “John Edwards’s sometime mistress,” who all had babies in their 40s. Likewise, Suleman takes heart looking at Angelina Jolie. Suleman and Kuczynski represent disturbing emotional extremes. But that should not excuse the rest of us from examining the oppressive competitive natality that seems to have gripped us–the fantasies of “baby bumps” and breeding, always breeding, yet more of “our kind.” Our culture’s antifeminist backlash and its unrealistic aspirations have bewitched Kuczynski and Suleman, these two young women who are so addled and so suggestible, so endowed and yet so impoverished. All these years after the age of “liberation,” perhaps it is time to revisit the myths we still concoct about childless women’s worth.

Nazneen Mehta is a second-year law student at Columbia Law School and is writing a Note on the international market in surrogacy services – particularly between relatively affluent “intended parents” in the US and poor female surrogates in India. Her Note will examine the ways in which this market might better be regulated by law in order to protect the rights and interests of the surrogates in India. Her research has taken her to Mumbai, India over the winter break to better understand the conditions under which the surrogates are working. What follows are her initial reflections on this research:

Alex Kuczynski’s story, “Her Body, My Baby,” about her experience bonding with the woman who became her son’s surrogate mother portends the rise of what Noa Ben-Asher on this blog suggested are “new and surprising extra-legal familial structures.”

But, maybe not. In a largely obscure industry that is becoming increasingly transnational, Kuczynski’s story could be the outlier.

Surrogacy has quietly spread beyond national borders, creating a multi-million dollar global industry that joins together women like Kuczynski with poor women in developing nations. But unlike Kuczynski and her surrogate, Cathy Hilling (with whom she was on a first-name basis), the surrogates in these developing nations will never share tuna sandwiches or host backyard barbeques with the “intended parents.”

In fact, very few surrogates in developing nations will meet the parents for whom they are carrying a child. As a doctor at an international surrogacy clinic in Mumbai, India, related to me, the clinic discourages intended parents from meeting the woman the center has chosen to be the surrogate. The doctor explained that the women come from the ranks of India’s poor, and if they “see foreigners,” the women may try to get more money or resources out of the intended parents. There is no “wink and nod” custom, and the reality of class division lie exposed between the intended parents and the surrogate.

The selection process further removes intended parents from knowing the individual women who become their surrogates. Kuczynski pored over the profiles of potential surrogates, reading each woman’s personal story and employment demands. International surrogacy agreements, however, are largely facilitated by surrogacy clinics operating in developing nations. The clinics recruit a pool of poor women to become surrogates and then assign the women to intended parents. There are no personal stories about the women’s lives or ambitions to distinguish one from another; women need only pass the clinics’ health and psychological screening to become a surrogate. (The selection process implicates the issues of race and class discussed by Khiara Bridges on this blog, and suggests that her analysis of Black women in the U.S. could extend to poor women of color in developing nations).

I make these comparisons between international surrogacy and Kuczynski’s story not to push normative claims about either type of surrogacy agreement. Rather, I contrast the two models to bring international surrogacy into the discussion. And to suggest that in the battle between the legal frameworks mentioned by Ben-Asher—the surrogate as hired outsider vs. surrogate as extended family member—the former may be pulling ahead.

Khiara Bridges is the Center for Reproductive Rights/Columbia Law School fellow at Columbia Law School who has just completed her PhD in Columbia’s Anthropology Department studying the intersection of race, poverty, and gender through the experience of women in an obstetrics clinic in a New York City public hospital.  She offers the following further reflections on the New York Times Magazine’s cover story on surrogacy:

Her Body, My Baby, a story published in the New York Times Magazine on November 30, 2008 concerning the author’s experience with infertility and her decision to hire a gestational surrogate to give birth to her and her husband’s son, raises several fascinating issues. Noa Ben-Asher’s post on this blog tackles an important and exciting set of questions regarding the ability of gestational surrogacy to expand traditional notions of family. Here, I’d like to offer a couple of thoughts on the complicated race issues that gestational surrogacy produces.

Gestational surrogacy involves the implantation of an embryo—usually the result of the n vitro fertilization of the intended mother’s egg with her husband’s or male partner’s sperm—into the surrogate’s uterus. The surrogate—usually motivated by some mixture of altruism and financial need, and who is generously compensated by the intended parents for carrying the pregnancy to term—is genetically unrelated to the embryo and the child that is eventually born. Gestational surrogacy differs from traditional surrogacy arrangements, which involves the artificial insemination of the surrogate, who ultimately gives birth to a child that is genetically related to her.

As dramatized in Her Body, My Baby, infertile couples seeking surrogates tend to be wealthy—with the ability to pay for several rounds of expensive IVF treatments and to recompense the surrogate for her “services.” Indeed, the photo accompanying the story shows the author holding her son while the “baby nurse,” dressed in white uniform, stands stoically in the background. Moreover, because class and race closely follow one another in the U.S., these couples also tend to be White.

It would be incorrect to state that race is not implicated with traditional surrogacy, yet implicated with gestational surrogacy. However, race is implicated differently with these two surrogacy arrangements. Because the traditional surrogate is biologically-related to the child she carries, the infertile couple seeking a child that is “like” them in some respects will probably select a surrogate that shares their racial ascription. Accordingly, one would find White couples hiring White women to give birth to their children. However, because the gestational surrogate has no biological tie to the child she carries, the infertile couple need not seek a surrogate who is racially “like” them. One could envision a dystopian future in which financially-needy Black women, who disproportionately comprise the ranks of this country’s poor, are hired to give birth to the babies of rich White couples. Those of us interested in questions of social and racial justice might find such a future disturbing. It would reiterate the Black woman’s body as a laboring one (on multiple levels) while doing nothing to eradicate discourses in which the poor Black woman figures as an incompetent mother. That is, the Black woman would be empowered to produce children, yet remain disempowered to raise them.

Although the universe of gestational surrogates was open to the author of Her Body, My Baby, she nevertheless hired a woman who was “like” her—racially and socially. Indeed, what initially attracted the author to her surrogate’s application was that the latter had used a word processor to type thoughtful responses into the questionnaire. The author remarks that, although the woman was not as economically privileged as she, she excelled in other status-acquisitive areas: she played college tennis as well as the piano. She writes, “She played our Steinway while I got lunch. I stood outside the living room, holding a tray of tuna sandwiches and listening. I was numb. I can hardly play the piano. I never played on my college tennis team. Back in those days, I was smoking and dyeing my hair black.”

If the personal preferences of infertile couples help to determine the racial composition of those who will be hired as gestational surrogates, the dystopian future described above may never be realized. Although there may be a class of poor Black women willing to carry pregnancies for wealthy White couples, the latter may nevertheless choose to rely on those who are “like” them—socially, culturally, racially. However, the alternative cultural landscape produced may remain problematic, as it may be one in which poor Black women are not even empowered to be the birth “mothers.”

Noa Ben-Asher, an Associate at Columbia Law School who works on issues of surrogacy and ideals of the family, reflects on the cover story in the New York Times Magazine, Her Body, My Baby, last Sunday:

Her Body, My Baby, the story of a married couple who hires a gestational surrogate to carry their genetic child published last weekend by the NY Times Magazine, echoes familiar and difficult social-legal-moral concerns that are often raised regarding reproductive technologies. Should the law permit the rental of a uterus? Should a child born of this arrangement have access to the surrogate? How do we make sure that surrogates are not coerced into surrogacy by harsh financial conditions? Should the law instead encourage infertile individuals to adopt children in need? Etc. Alex Kuczynski’s personal story of ongoing unsuccessful infertility treatments that eventually led her and her husband to hire a gestational surrogate personalizes these dilemmas. Despite facing moral and ethical conflicts throughout the process, Kuczynski eventually ends up praising the scientific development of gestational surrogacy, describing her newborn son as “our most vivid dream realized- the embodiment of the most blindly powerful force in the universe, brought to life the only way he could be. With a little help.”

Gestational surrogacy has recently received growing attention in legal academia. An issue less frequently considered in these discussions is whether and how the rising popularity of gestational surrogacy can inform current social and legal understanding of marriage. At first glance it seems that the issues don’t have much to do with each other. However, a careful reading of Her Body, My Baby reveals what can be characterized as a surprising subversion coming from within traditional marriages. Gestational surrogacy arrangements in reality open marriages up to third and often forth parties (the surrogate and more often than not, her husband). Gestational Surrogacy can be understood in two distinct ways, both surfacing from Her Body, My Baby. The first and more common interpretation is the one embraced by courts and legislators in the last fifteen years—the gestational surrogate is hired as a carrier to assist a couple in the reproductive process. Or as Kuczynski puts it, she is “a vessel, the carrier, the biological babysitter, for my baby.” Since Johnson v. Calvert (CA 1993) courts and legislators have endorsed this interpretation of gestational surrogacy. In this interpretation the institution of marriage remains a closed unit in which the surrogate is hired as an outsider, like a gardener, a nanny, or an architect, but does not push on the definitional boundaries of marriage.

I am interested in a second, much less common interpretation of gestational surrogacy, which is revealed in Kuczynski’s actual personal experience of hiring a gestational surrogate. In this interpretation the boundaries of parenthood, reproduction and marriage are much less clear. The gestational surrogate and her husband, though not the legal parents of the child, are not total strangers to the marriage. In fact, there is intimacy, a joint experience of creating a child—perhaps a temporal redefinition of the two marriages. Kuczynski’s actual relationship with Cathy (the surrogate), as described by Kuczynski is not merely a relationship of a client with her service provider. During the pregnancy, Cathy told Kuczynski that she considered the previous couple to whom she assisted as a surrogate as “close as extended family,” which made Kuczynski wonder, “Do we all have to have Thanksgiving together? If so, for how many years? And which husband carves the turkey?” Kuczynski later describes a meeting of the two couples a few days before birth where “the husbands clapped each other on the back. It was an entirely domestic scene, like something out of Norman Rockwell…” The women become close, physically and emotionally, reaching a climax in the delivery room: “there was the mind-bending philosophical weirdness of it: the torture of childbirth, of being split open, of having your body turned, it seemed, inside out to produce this giant, beautiful baby. Cathy vomited; I vomited.” In the peak of the drama, the delivery room, Kuczynski describes this newly formed temporal family unit: “Cathy (the surrogate), her husband, her two daughters. Two nurses, a doctor and my husband. I cut the umbilical cord.”

It seems that with current and future growth in the use of gestational surrogacy, we may find new and surprising extra-legal familial structures that at least temporarily transgress the traditional marital model. This is especially interesting given that the original goal of such arrangements is the securing and enhancement of traditional marriages by the creation of children who otherwise would not have come into existence.

Noa Ben-Asher, Associate at Law
Columbia Law School
(212) 854-1980
nbenas@law.columbia.edu
SSRN Author page: http://ssrn.com/author=472301