Reproductive Technologies and Surrogacy: a Feminist Perspective

1599 REPRODUCTIVE TECHNOLOGIES AND SURROGACY: A FEMINIST PERSPECTIVE BARBARA KATz ROTHMANt During the "Baby M" case, I found myself caught up in the media circus surrounding the case and spent an amazing amount of time in green rooms with Noel King, the man who had brokered the surrogacy contract between Mr. and Mrs. Stern and Mr. and Mrs. White- head. I think I spent more time putting on my makeup for that particular surrogate broker than I did with my husband that year. I found that one of the interesting things that happened was the way that the media used me for something it called balance. The media would have a carefully groomed "surrogate" and her broker on one side and then on the other side, it would usually have a rabbi or a priest or minister, and then me. The little tag that appeared in white letters on the television screen under me sometimes read "author" and sometimes read "sociologist," but usually it read "feminist," and so I was there to be the feminist balance. My family and friends time and again agreed with the viewpoint of the rabbi, the priest, or the minister. Today, I find myself in the same general mode of opposition to this arrangement we call surrogacy, proving the point that surrogacy does, indeed, in every possible way, make for very strange bedfellows. Although I and others who are critical of the development of surrogacy from a feminist perspective may be on the same side of this particular fence as the religious leaders, we are coming from a very different place, and we are going to a very different place. We just happen, for the moment, to be in agreement on a particular issue. I think it is important not to merely say, "Yes, I, too, oppose surrogacy because it demeans women," and let it go at that. I believe it is important to look at some of the underlying assumptions that make my opposition to surrogacy so different from the religious opposition. Each of the religious traditions that we have heard from today, which are related to our legal tradition, stemming as it does from some of that Judeo-Christian religious tradition, are based on a fundamental assumption of relationships between people that comes from an underlying ideology of patriarchy. The word "patriarchy" is often used as a synonym for sexism or men's rule or any system in which men rule. This common usage is inaccurate. "Patriarchy" has a specific t Asst. Professor, Department of Sociology, Baruch College of the City Univer- sity of New York. A curriculum vitae of the author is included at the end of the essay. 1600 CREIGHTON LAW REVIEW [Vol. 25 technical meaning, and the technical meaning becomes important here. "Patriarchy" refers to a system in which men rule as fathers. A patriarchy is a rule of fathers. Men rule all over the world. In some places they rule as fathers and in some places they rule on other authority. The rule of fathers becomes significant when the subject is mothers and the rights, freedoms, privileges, and obligations that women have towards their bodies, towards their children, and towards their communities. What we mean by the rule of fathers, or patriarchy, meaning the rule of fathers, is that the relationship between a father and his son is the defining social relationship. It is the basis for the organization of the society. Leftover pieces of patriarchy exist in American contemporary society, which I will argue is a modified patriarchy. It manifests itself in the language when a Mrs. John Smith bears John Smith, Jr.-women bear the children of men. Pa- triarchy is also manifest in the Bible. Reading the "begets," each man is described as having begotten his first-born son and then sons and daughters in his likeness. Women are described as the daughters of men who bear them children. Children, much like the language of horsebreeding, are described as the children of men out of the bodies of women. This linguistic pattern demonstrates the idea that the fundamental social relationship exists in men's seeds and that men's children grow in women's bodies. In any society based on patriarchy, women are a vulnerability that men share. In order to get their children, men have to put their seed in the body of a woman and lose some kind of control over it for quite a long period of time. The only way to maintain control over the seed is to maintain control over the women. Therefore, issues of control become very important. Different societies have different notions of what constitutes incest. Surrogacy typically raises issues about the possibilities of incest if children of surrogates are unaware of their biological lineage. The notion of incest is a socially constructed notion. What makes two people siblings differs among various societies. The notion of a milk mother holds that the children who were suckled of the same breast are siblings to each other. This belief is related to an earlier matrilineal notion in which the fundamental human relationship is a shared uterus. Under this notion, if people grew out of the same uterus, then they were fundamentally closely related to each other. In certain matrilineal societies, it is not considered incest if two children with the same father were to marry and to have children. The idea is a little unpleasant in such societies, perhaps, a little distasteful. An analogy might be if a woman in our society had two "surrogate" pregnancies using children grown of gametes that were not her own and those two genetically unrelated children were to someday 1992] FEMINIST PERSPECTIVE 1601 chose to marry each other. Our society would find the whole thing incredibly distasteful. But there would be an argument among us that, because there is no genetic relationship, the children were not really related and, therefore, the marriage is acceptable. Our society says that the real relationship is the genetic relationship, not whose breast the children suckled at or whose womb they grew in. In other societies, the genetic relationship may be interesting, but it is not de- finitive. Just because two children have the same father, the children are not really related. As long as they have different mothers, they are not really siblings. This example illustrates that even the notion of incest is very different depending on how you define the relationships between generations-the parent/child relationship. In a patriarchal system, what is important is men's need to define the relationship between themselves and their children and what to do with the troublesome position of women in developing these definitions. Some of our fundamental assumptions become challenged if you switch from the perspective of men and try to look at it from the perspective of women. Starting with assumptions that women bear the children of men, the seed of Abraham covers the world, etc. Given this assumption, who the mother is, is not a terrifically important question. It almost does not matter. This is the real moral of the story of Abraham, Sa- rah, and Haagar. Sarah was Abraham's wife, and Haagar was the slave girl who bore Abraham a child. Nobody ever questioned that Haagar was the mother, but what earthly difference did it make who was the mother? Abraham was the father. The children, whether they came through Sarah, through Haagar, or from the sky, were Abraham's children and that is what counted; they were his seed. Mothers are pretty much dismissable. That is the fundamental message in the story of Haagar because mothers do not define the relationship. The father defines the relationship. We have this notion of legitimate and non-legitimate, as if children who do not have a le- gally identified father are not real, are not legitimate children. It is a fascinating concept to think of a child, a person standing before you, as not being legitimately present. What happens in this context, when these patriarchal notions form some of the underlying assumptions is that when we start developing new reproductive techno- logices, it gets interesting. For one thing, the reproductive technologists were forced to con- front the fact of women's seed. Women produce genetic material. Now what? We are left with the idea that the children are half his and half hers. The children might as well have grown in the back yard. The essential underlying concept of patriarchy, the seed, is 1602 CREIGHTON LAW REVIEW [Vol. 25 what really counts. If women have seed too, then to that extent we recognize that women have rights in their children. We extend to women some of the privileges of patriarchy. Women's rights to their children do not derive from having grown them in their bodies, with the blood of their bodies, passing them through their genitals, and suckling them at their breasts. These latter functions are interesting, but irrelevant. What makes the child a woman's is that it is "half" hers; it has her genetic material as well as the man's material. The primacy of the genetic material is still the defining social relationship. Our society is a modified patriarchy because of this fact. It works in a large degree like this: to the extent that women are like men, women can have equal say and equal rights. To the extent that women can function like men, they can be equal beings in the world.

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