On Saturday, the New York Times published an article about surrogate pregnancy including three cases in which problems arose due to the unregulated state of surrogacy. In one case, the surrogate mother discovered that the adoptive mother had a history of paranoid schizophrenia and sued to keep the children. In another situation, a single man arranged a pregnancy and his eccentricities have brought his ability to raise children into question. Finally, a woman is attempting to keep the child she surrogate mothered for her gay brother and his partner. In each case, we are shown the unprecedented legal and ethical quandaries interwoven into the very definition of words like mother, parent, family, and reproductive responsibility and rights.

The NYT article makes a clear case that raising a child is complex and emotional. Reducing pregnancy to a transaction only serves to amplify these complexities and emotions by trying to remove them from the equation. But wherein are the nuances of creating life lost?

George J. Annas, a bioethicist who is chairman of the health law program at Boston University, said, “This is the main problem with commercialization, seeing children as a consumer product.”

It is interesting that the article chose to use this quotation, as in two of the three example cases the pregnancy was not for profit. Furthermore, it is noteworthy that this quotation from Annas points out what happens to the child, but is largely unconcerned with how the process affects the mother. I suggest Carolyn McLeod’s “For Dignity or Money” which is the most evenhanded account of the multiple feminist perspectives on contract pregnancy, an issue far to complex to deal with in a single blog post.

The question that underpins contract pregnancy is always just beneath the surface of the NYT article and nearly every popular piece I read on the topic: has nature prevented these people from having children for a reason? Questions of ability, knowledge, and stability are logical to ask of any parent. Though I largely disagree with its method and position among social services, Child Protective Services makes sense in a major egalitarian society, because some people are not fit to be parents. What disturbs me is the double-standard for the reproductively impaired. I am not trying to create a new minority group or coin a new PC euphemism with the use of “reproductively impaired” but merely point out that these people in a state of nature cannot reproduce at all. They are, by choice or chance, effectively sterile. Therefore they seek the next best means by which to have children.

The disturbing trend here is that those who are able to have children “naturally” are innocent until proven guilty, while those who must use alternative means are subjected to the judgments of doctors, bureaucrats, and their peers. One must qualify to have IVF, adopt, and, as shown, use a surrogate mother. Unless one can prove one is able to have the financial, moral, legal and mental stability necessary to raise a child, one cannot have a child by any artificial means; however, there is no such condition for simply getting pregnant or impregnating someone. In short, if nature has already hindered your ability to reproduce, then the state and society have the right to control how and when you acquire children.

This double-standard is the passive equivalent of a far more insidious active, possibility. The specter of eugenics is often raised around issues of reproductive rights. The eugenicists of the earlier part of the 20th century are oft maligned for their support of sterilizing those deemed as problematic for society. If one was below the poverty line or shown to be “morally” or “mentally” unfit (more often euphemisms for bigotry than matters of ethics), the eugenicists argued for sterilization. While sterilizing for any one of those reasons is now considered patently offensive and wrong, it is seen as completely rational for those who meet those conditions and are born or become sterile to be forced to remain that way.

Let me provide an example. Let us assume that the only criterion one must meet to adopt a child are that one must make $50,000 a year, have no criminal record, be mentally and physically healthy, between the ages of 25 and 45, and be straight. Let us extend these criterion to receiving in-vitro fertilization, egg or sperm donation, and surrogate pregnancy. While grossly simplified, it is an analogous model to our current legal system’s requirements, designed to protect the welfare of the children. This set-up makes sense both on face and when analyzed in detail – the combination of standards provides a normative baseline for what a decent home for a child would be. While each standard might be debated (economic and sexual status in particular) the general idea of standards for adoption and assisted reproduction make sense because they are designed to protect the new child.

Now let us add a twist: in addition to being unable to adopt or receive reproductive assistance, if one does not meet one or more of the above criteria then one is legally and compulsively required to undergo temporary chemical sterilization. For the sake of the children, one might argue, it is the responsibility of a just society to only allow reproduction among those who are up to the task. Simply possessing the ability to reproduce unassisted is no justification for having the right to do so. In fact, getting pregnant is itself often used to exemplify a person’s irresponsibility. By this logic it would seem that we as a society have an obligation to prevent those who do not meet society’s standards from acquiring children, be it by natural birth, adoption, or assisted means.

Rightly we find such a suggestion abhorrent. Unlike Leon Kass’ repugnance theory, which relies on our instinctual fear of something new or misunderstood as a form of moral judgment, this abhorrence comes from our living in a liberal and free society. To suggest that the government is responsible for determining who may and who may not have children based on their class, sexual orientation, legal and medical history, and age is perhaps one of the most prima facia dystopic and offensive ideas one could articulate. Yet it is the real status quo for those who seek to adopt or use assisted reproduction. In every one of the cases described in the NYT piece, no one would have so much as thought to scrutinize their right to have children had they been able to do so naturally. Sterility due to nature or by situation is viewed as an exception, thus granting the state legal jurisdiction over one’s reproductive rights. Biopower exerts itself most grotesquely among those already outside the norm.

If forced to surmise as to why, I would guess that our society still maintains the deeply embedded, though irrational belief, that those who are sterile from birth or by accident or do not wish to reproduce in a normative fashion, such as asexual or homosexual people, are as such because some greater moral force – be it Nature, Fate, or God – has preordained them as deviant and unfit to parent. The NYT piece expresses this view perfectly, wherein there is no example of a successful surrogate pregnancy, only deviants – a mentally unstable mother, a strange, lonely man, and a homosexual couple. That a happy, normal, heterosexual couple with no other problems but biological inability would want a child via surrogacy goes unexplored. The underlying logic is that their normalcy is only ostensible and problems are likely lurking beneath the surface. If you can’t do it like everyone else, the argument goes, then perhaps you shouldn’t be doing it at all.

I do not have an immediate or even rough solution for the problem of our reproductive double-standard. What I do know is our society’s relationship with and perspective on reproduction is still grossly undermined by our continued attachment to decayed religious morays and their secular bioconservative descendants. There are people having children who do not want them and people who want children who cannot have them in substantial, depressing numbers. Compounding it is our legal system’s deranged obsession with genetic relationships creating de facto legal relationships. Adoption and foster care is stigmatized, contraceptives are restricted, the abortion debate has devolved into factious insanity, “natural” fertilization and birth is given mythic status and mystic veneration, and artificial methods are still portrayed as dehumanized scientific experiments; and the entirety of reproduction and sexuality is surrounded by a reactionary veil of ignorance, misinformation, and puritanical dogma crippling the very measures that would protect and help those that are most needful.

The state of law and ethics surrounding reproduction and sexuality in the West is in desperate need of a sea change, but the brave new world it would create is, for now, still to terrifying to even contemplate. It is a problem, however, that we must confront. We cannot, appropriately enough, leave it for future generations to handle.

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