By Carolyn Helmke
In the movie of Margaret Atwood's novel The Handmaid's Tale, there is a "birthing party" in which wealthy women sip tea in casual elegance while a slave woman goes through labour, bearing a baby that is snatched from her before she even knows the sex.
Images like these permeate the debate among feminists about surrogate motherhood. Many fear the practice will provide a new job option for economically strapped women of colour who will become exploited incubators for wealthy white women who want to save themselves from stretch marks.
As advances in reproductive technology provide us with more and more "test tube" babies each year, lawsuits over parental rights to these children are also on the rise. And most of this litigation pits surrogate mothers against sperm- and/or egg-donating parents.
Last year in California, the well-publicised Johnson vs. Calvert case rekindled some of the debate that surrounded the 1987 Baby M custody battle and introduced new controversies regarding surrogacy, contracts and the definition of parenthood.
Thorny issues of race, class and gender suffuse these cases and compel feminists and leftists to watch them carefully and attempt to define a position on surrogacy and the role of reproductive technologies.
In January 1990, Anna Johnson, a woman of Black, Irish and Native American ancestry, signed a contract with Mark Calvert, a European-American, and Christina Calvert, a Filipina-American, to carry their baby for $10,000. Doctors implanted an embryo, formed using the Calverts' sperm and egg, in Johnson's womb.
During Johnson's pregnancy, disagreements over payment and insurance costs sprang up, and before the child was born on September 19, 1990, Johnson and the Calverts were fighting over custody rights.
In late October 1990, a California court ruled in favour of the Calverts, awarding them sole custody of the baby boy as the genetic parents, neatly removing Johnson from the family album. The court assessed her role as temporary, that of a foster parent. Johnson is appealing the decision.
The circumstances of this custody battle are unusual and distinct: it is the first legal case where the surrogate mother is not genetically connected to the baby. But what is most notable is how typical the case is in the realm of child custody fights. Once again the wealthier and whiter of two sides wins complete custody rights from the court.
Outside the courtroom, the mainstream media have just the kind of villain America loves to hate: Anna Johnson, a baby-selling, contract breaking betrayer of a nice suburban couple who just want to have their own baby.
A series of studies discussed in Phyllis Chesler's book Mothers on Trial, The Battle for Children and Custody illustrates the vorcing fathers in the 1970s and 1980s in winning custody battles. Frequently a father's income — usually higher than that of his ex-wife — weighs heavily with the judge in deciding who gets the kids.
Similarly, the women who work as surrogates are almost always of a lower class than the people they have babies for, and are often women of colour. Thus, they typically cannot afford hot-shot lawyers for a trial and are treated to the same discrimination that people of colour regularly face in the court system.
This arrangement, in which an upper middle-class couple contracts with a poorer Black woman, stirs up progressives' worst fears about surrogacy.
It is true that the increasing use of surrogacy has disturbing implications, and many feminists and leftists have sternly editorialised that the practice is wrong, calling it blatant baby-selling, exploitative, akin to slavery and maintaining that it should be illegal.
But is surrogate motherhood itself really so horrifying? As compared to what? How about the scant economic options for women of colour in the United States that offer job choices like the military and floor scrubbing? Or the constant denial of Third World people's rights in our court systems? What about the fact that the prevailing (economic) definition of "the best interests of the child" is completely removed from the situations in which most children grow up? And the truth that child abuse is less frowned upon if parents can afford to buy Junior lots of toys?
Surrogacy is just another example of how unjust our society is and must not be treated as some sort of special outrage. Women should be able to break their contracts, but should not be prohibited from making the contracts if they so desire. Protective legislation to outlaw surrogacy will not help women; the baby-producing industry promises to surge forward whether or not it is legal.
Besides, the other way people of means buy babies is similarly offensive. They go to Third World countries where the living conditions are harsh and many women have little means to support themselves. This situation is not better than surrogacy, as poor women are faced with the choice of giving up their baby or letting their other children starve. But the crime is the state of poverty and unequal distribution of wealth, not adoption itself.
Finally, surrogacy and other reproductive technologies are not inherently evil. The question is: Who controls their use? Offering alternatives to heterosexual intercourse as a means of conception has completely changed the landscape for "alternative families", most notably, lesbian and gay parents and single women.
In other words, the turkey-baster (often used for artificial insemination) has been a blessing to scores of lesbian couples, just as test-tube babies have provided an avenue to child-bearing for people with damaged reproductive parts.
Furthermore, it seems unduly harsh to judge a woman who is not biologically capable of having babies for wanting a baby with her genetic makeup. It might avoid some of the potential for exploitation if couples who want a surrogate call on a friend, an approach that has worked for many.
It would be very nice if banning surrogacy would solve the underlying problems of racism, sexism, heterosexism and class oppression. But it wouldn't. It is the structure of the society that takes a development like surrogacy and turns it into an exploitative practice. It is this disease that must be fought, not the various symptoms.
[From the US Guardian.]