Disappearing biological mother

First published 9-9-2010

Addressing Harvard’s Class Day this year, speaker Alexandra Petrie expressed no regrets about her four years at what is now her alma mater. But she did consider one opportunity she felt sorry to have missed: responding to one of the ads for egg donors that appears in The Crimson. “Hey, that's serious money,” she notes. It certainly is: the posted price that at my university – Columbia – is generally about $8,000. But then again, Petrie concluded, maybe foregoing the income is okay. Otherwise, she would have to worry about her child growing up with people who think it's fine to advertise for eggs in college newspapers. 

The Wellesley College newspaper recently ran an article proffering advice to students thinking of taking up one of the offer of being an egg donor. Other college and graduate school newspapers probably have, or will, do the same. Young women getting an education are prime targets for egg donor programs: they provide  the equivalent of that famous sperm bank that was reputed to stock the merchandise of Nobel laureates. There aren’t too many female Nobel laureates, and in any case they usually get incoronated at a time when their “genetic material” is past its prime. “Eggs of Shirin Ebadi! (Iranian, b. 1943, nobel laureate, 2003)” hardly rings the same as “sperm of  Albert Einstein! (German, US refugee, material frozen before demise).” Not to belabor the point, but Shirin Ebadi was sixty before anyone could possibly have thought to put her eggs in a Nobel-Egg-Donor-Bank.  A Harvard College student is about as good as it gets: young, energetic, achievement-oriented, a potential candidate for a Rhodes or a Marshall scholarship  … she’s got genes for success!

A Harvard (or Wellesley or Columbia Law or CUNY) student has a few other traits that egg banks appreciate. First, students are often cash-strapped. No matter how good the financial aid, the cost of a U.S. education weighs on most families.  The economic crisis has not helped. At some point a young person will wonder whether she shouldn’t be trying to cover her costs. Most students do feel the financial burden of their schooling, and most of them will worry about it. 

But that is not the only trait that female college students have going for them.  They also are – or are thought to be – sensitive to appeals to altruism. Over twenty five years ago, Carole Gilligan found that female college students express an “ethic of care” (as opposed to males who are motivated by an “ethic of responsibility”). The “ethic of care” leads you to make your decisions on the basis of your identification with the needs of others. To paraphrase a once-famous American, you feel their pain. How better to address the college girl than to suggest that a small gesture of altruism can make a childless woman happy? That’s what ads plastered in college hallways do. The message often runs something like: “Don’t you want to help another woman realize her dream?” Well, don’t you? The fact that egg donation requires hormonal treatment and surgery is generally not mentioned.

The gift relationship is also invoked by references to “donors.”  The money that donors receive, one assumes, is merely a reward for being good. That one can reputedly be paid up to $100,000 if one’s pedigree is valued enough is incidental. Any young woman who is seriously considering egg donation should stop thinking about giving and start thinking about bargaining. Here’s where it’s useful to be on a college campus, preferably one with a business school that offers an accelerated course in negotiation.

Of course, it’s not all about the oocytes. Unless the eggs are “fertilized” they might as well go down the fallopian tubes to their inglorious fate. Eggs are not babies, just a necessary ingredient for making them.  The fertilizer has often already been identified: he is the “father” of the intended child. He’s often waiting in the wings for the right eggs to be provided; if not, a sperm bank can help. And then, there’s the person who will carry the fertilized egg.  That's because gestational surrogacy, where the egg donor and the womb-provider are two different women, has become the preferred mode of surrogate reproduction. In traditional surrogacy, the womb-provider was also the egg donor. But seen from a market perspective, traditional surrogacy restricts the choice of genes available for the future child. And, policy-makers seem to consider women who provide both their eggs and their womb more likely to become attached to the child that is borne, increasing the likelihood of litigation.

So far, we don’t have good machines to incubate children from start to finish. Instead, we have women willing to provide a uterus for the requisite number of months. In a model surrogacy contract, I recently saw the uterus-provider referred to as the “embryo-carrier.” It’s such a relief that we don’t have to use the “M” word anymore! Nine months in the womb? That’s not a mother, that’s an embryo-carrier. Like the sherpas of  colonial yore, she carries the embryo the way they bore the bags.

That’s an uncomfortably good analogy.  There’s frequently a difference of color and geography – as well as of economic means -- between the people for whom the embryos are being carried and those doing the carrying. India, for example, has added surrogacy services to its health tourism industry. What will happen when the villages on Lake Victoria can boast health care centers (and HIV infection rates) on par with those of  Gujarat? Now that markets have understood that babies resemble the contributors of their genetic material (i.e., oocytes and sperm) rather than their carriers, the word is out: “dark” women can bear “light” babies.

Institutional and legal glitches abound.  A few weeks ago, twins commissioned by a German couple from an Indian surrogate mother finally obtained visas from the German authorities. Having spent their first two years at the center of a legal battle over their nationality, the Balaz twins will finally go home. The difficulty stems from the fact that Germany prohibits surrogacy (and hence willl not legitimate their births through a grant of citizenship) while India is uncertain as to whether the mother is the surrogate who bore them (in which case, they could have Indian nationality) or the woman who commissioned them (in which case, they will not). Granting nationality would destroy the surrogacy trade: mothers can claim rights over children, fathers, states where the children are born or where they live. The U.S., for instance, which allows American citizens to petition for residency for their parents, could be faced with a spate of immigration requests from surrogate mothers. Similar incidents related to incompatible legal systems abound. Nonetheless, the potential supply of human incubators is quasi infinite. A black market is already developing. Recently, police in Taiwan, where surrogacy is prohibited, arrested a man for importing Uzbek women to serve as wombs. But there are many places in which rent-a-womb is perfectly legal, in the US as well as abroad.

Many people talk of “embryo-carriers” as “renting” their wombs. Contracts can be set up like leases – regular payments on schedule. Talk of leasing suggests that the leasor has rights of possession and use. Why shouldn’t a woman rent something that belongs to her?  Moreover, a rental is not a sale—the leasor only temporarily alienates a part of her body for use by others. This is emphatically not like selling your limb. You will get your uterus back. (And the child that will come out was never «yours», so no need to think about that.) Finally, the language of leasing keeps attention where the market wants it to stay: on the place rather than on the activity occurring within it or the one performing it. Feminists exercised at depictions of women as hapless victims  of sexual trafficking, honor crimes or prostitution seem to have missed the passivity in the image of   womb-leasing. Once she's set up the contract, the renter is out of the picture.  The embryo is viewed as doing all the ‘work’ of becoming a child.  To push the analogy a bit further, the requests that surrogacy contracts often make – no smoking, no injurious substances, no dangerous activities – are analogous to demanding that a home-owner not use his passkey to break the furniture.  «Our Bodies, Our Selves» a renowned book of the seventies proclaimed. The book for this decade seems to be «Our Bodies, Our Real Estate.»

In the logic of surrogacy, it seems, there are no biological parents. Egg donor + sperm donor + uterus = child. Paradoxically, the biological mother may be disappearing at the same time as the biological father is reaching his apogee.  In the eighties, the panic that surrounded the «epidemic» of teen pregnancies focused attention on finding fathers for unwed mothers. Where there isn't a husband (or husband-equivalent) to act as the second parent to a child, U.S. courts will often look to DNA tests to prove paternity and attribute child support obligations. At the same time, DNA is sundering real relationships. Not long ago, the New York Times Magazine ran a cover story on a man who was heart-broken to have discovered that he was not the «real» father of the child whom he had brought up. Now that the DNA test was back he could no longer treat her as his child. Really?  Where is the «real» father? DNA will tell us. 

Obviously, social parents – that is, parents whose status is the result of their intentions and institutional arrangements --  are parents. But what are we going to say about the women who «make» the babies and how are we going to treat them? To some, they are workers, and should be protected as such. In that logic, the service they provide is no different from any other kind of physical labor.  It warrants fair wages, guarantees against occupational hazards, and legally-enforceable contracts. That the payment for a surrogate can amount to many times a household’s income from the “normal” labor market only reinforces the notion that this is a legitimate exercise in the pursuit of economic self-interest. To others, surrogates are mothers, a status that places them in the same class as other women who bear children and who may then choose to give them up, like those who give their children for adoption.  If the surrogate provides a service like any other, one might surmise that the product of her efforts is a commodity like any other – one that may legitimately be bought and sold on the baby market.  If the surrogate mother is a mother, then “her” child is a child, subject to the bans on commodification that have long been in effect in many countries. Courts in the US and abroad have repeatedly addressed these questions. Now numerous legislatures – in France, Australia, and India for example –   are also grappling with them.  Inevitably, there will have to be international coordination if not an effort to define common rules – the market is international, even though several countries are trying to enforce bans on baby procurement outside national boundaries. So deciding how to address the questions that surrogacy raises is urgent. Punishing surrogacy by criminalizing it will lead to the perverse effects that the criminalization of prostitution has engendered – greater exploitation, greater health hazards and greater submission of women willing to provide their services to unscrupulous middle-men, as well as greater potential for blackmail of buyers of these services.  But that criminalization is not a solution does not mean that the difficult issues can be evaded. Is child-bearing a service like any other? Is the woman who bears a child a “mother”? Are children made to order marketable commodities?  We haven’t yet answered; we can only be certain that prohibitive legislation is unlikely to save us from having to do so.