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Her Body, My Baby: Surrogate Motherhood and Fetal

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Her Body, My Baby: Surrogate Motherhood and Fetal HER BODY, MY BABY: SURROGATE MOTHERHOOD AND FETAL ABDUCTIONS IN THE UNITED STATES SINCE ROE VS. WADE by Sandra Reineke, Ph.D. Associate Professor of Political Science and Women’s Studies University of Idaho [email protected] Do not cite without permission by the author. 2 In their political campaigns for reproductive rights in the 1970s and 1980s, feminists in the United States and elsewhere made the female body a central focus in their quest for equal citizenship. Their political demands were perhaps best encapsulated in the famous campaign slogan “My Body Belongs to Me,” which activists used to raise public awareness about women’s lack of reproductive freedom mirrored as it was in societal equations of womanhood with motherhood. Around the same time, the invention and development of in-vitro fertilization and related medically assisted reproductive practices include “third-party reproduction,” such as egg donation and surrogate motherhood, soon pointed towards the political limitations of the feminist claim to equal bodily integrity as science and medicine began to move human reproduction outside of women’s bodies (Petchesky 1995). To date feminist theorists and activists remain divided about the pros and cons of assisted reproductive technologies (ARTs). Generally, speaking, “liberal” feminists have argued that ARTs broaden women’s reproductive choices, while “difference” or “cultural” feminists claim that science and medicine increasingly pathologize and control women’s bodies and thus women’s reproductive decisions (Shanley 1993; Reineke 2008). At the basis of the current academic and public debates in the United States and elsewhere about third-party reproduction and related medical technologies, lie the theoretical insights of the French philosopher and writer Simone de Beauvoir, who demonstrated in her path breaking study Le Deuxième sexe (1949), how patriarchal body politics control women’s reproductive lives through gendered expectations about women’s role in society as mothers. Importantly, Beauvoir showed in her book how gendered expectations about women’s corporeal functions in human reproduction contributed to the medical invention and acceptance of female sexual 3 and reproductive disorders including diseases such as “hyper sexuality” but also “frigidity” and “infertility.” Beauvoir advocated in her book that in order to liberate themselves from these crippling gendered expectations, women should seek collective political action against the state and its institutions, such as the family and the medical establishment, in order to redress laws and regulations that control women’s sexuality and reproduction in order to attain gender equality. Perhaps not surprisingly, Beauvoir’s political call to arms soon made her into a famous postwar feminist icon inside and outside France who actively participated in the postwar women’s liberation movement (Reineke 2011). What is lesser known about Beauvoir’s feminist stance is that she also advocated technological innovations and inventions in the field of reproductive medicine—such as a mechanical “surrogate womb”—to aide women in their political quest. Beauvoir felt that an artificial womb located outside of a woman’s body would allow women to detach childbearing functions from their own bodies so that they would finally be freed from what she described as a debilitating feminine existence (Beauvoir 1949). To this date, Beauvoir’s utopian ideas about assisted medical reproduction have not materialized, although the field has undergone revolutionary developments since the time of Beauvoir’s writing. [Footnote: Firestone’s work on artificial wombs cite here. Can I find my discovery of a French doctor’s work on a mechanical womb in my notes from Paris?] Since the 1970s and 1980s when in-vitro fertilization and contractual surrogate motherhood were first successfully practiced, these new medical technologies have offered patients a myriad of new reproductive strategies and practices, including egg, sperm and embryo freezing, egg splitting, and a variety of 4 pre-implantation genetic diagnoses (PGD), including sex selection, as well as embryo adoption and surrogacy. In particular, the practice of third-party reproduction, which utilizes body cells and parts of more than two individuals in human reproduction, is taking a very different direction than what Beauvoir could imagine in the 1940s. Instead of locating gestation outside of women’s bodies, the invention and development of contractual surrogate motherhood, first practiced in England in 1985, has transposed childbearing functions from one female body to another female’s body. Rising popularity of these new medical treatments—in the United States in the last decade about 1 percent of all babies born each year were created in-vitro and over 5,000 of babies born between 2004 and 2008 were given birth to by surrogate mothers—has brought the unique ethical and legal challenges associated with these practices into the broader public awareness (Council on Responsible Genetics 2010: 4, 7). One court case in particular, the case of “Baby M.” in the state of New Jersey in 1987, has brought attention to third-party reproduction. In this case, the surrogate mother of the baby, who is also the genetic mother of the child, reneged on her surrogacy contract with the intended parents after giving birth to the baby. When she took the intended parents to court, she did not however gain custody over her biological child, which was given to the biological father and his wife on the grounds that they could afford the child a better life (In the Matter of Baby M., 109 N.J. 396 (1988)). Paradoxically, the “Baby M.” case both supported and challenged the broader societal changes that were taking place in the United States at that time and which culminated in the Supreme Court case Roe vs. Wade that won women the right to reproductive freedom. As such, the case upheld a woman’s equal individual right to 5 control her own body including contracting it out for reproductive services at the same time as it did not account for a woman’s greater likelihood of experiencing systemic social inequalities, such as economic inequalities, as the court awarded custody to the biological parent who was economically better off. Seen this way, the “Baby M.” court case paved the way for a woman’s individual right to contract her body and body parts in the area of assisted reproductive medicine but it did so without consideration to the socio-political context in which women make their reproductive decisions that the state regards as “private.” Recently, scholars have started to examine the diverse medical, social, legal, and monetary exploitation that women face when engaging in contractual third-party reproduction and how these affect women from diverse backgrounds and countries differently (Ginsburg and Rapp, 1995; Wolliver 2002; Prade 2010). In my study, I am examining not instances of contractual surrogacy schemes that are subject to monetary compensation and market exploitation in the commercial sense investigated by these scholars. Rather, I am examining instances of what I have called “forced surrogacy,” a series of which began in the United States in 1987, the year the “Baby M.” case was decided. [Footnote: Individual decisions to contract into surrogacy schemes can of course also be deemed non-free, coerced, or forced as women contract for a fee or payment on which they depend.] In what follows, I am examining 5 attempted and 15 fatal attacks by women on other pregnant women in order to take their babies and to pass them off as their own. Before I will discuss these fetal abduction cases and how they are related to patriarchal body politics as analyzed by Beauvoir, I shall briefly contextualize the development of surrogacy before and after the “Baby M” case. 6 I Contractual and Forced Surrogacy For centuries, the failure to produce offspring has created efforts to medically assist in human reproduction. Sir John Hunter performed the first recorded case of human artificial insemination in Britain in 1790, and today, just over two hundred years later, a plethora of new intra- and extra-corporal methods of assisted human fertilization and related biomedical and genetic applications exist (Poynter 1968: 97). While a form of surrogate motherhood has been practiced throughout human history with a sister or female relative agreeing to have sex with a woman’s husband in order to produce an offspring, contractual surrogacy, in which another woman agrees to carry a pregnancy to term and delivering a child for intending parents, is a more recent practice. Such surrogacy arrangements distinguish between “traditional” and “gestational” surrogacy. In traditional surrogacy, the surrogate mother is genetically linked to the offspring but gives up her parental rights to the child via the surrogacy contract. In gestational surrogacy, the contracted surrogate mother has no direct genetic ties to the offspring, which may be created using eggs and sperm from the intending parents or from donors. The practice of gestational surrogacy relied on the invention and development of in-vitro fertilization in the 1970s in which an embryo is transferred into the uterus of another woman after being created in the lab. In gestational surrogacy, the surrogate mother usually gives up any rights to the child through her contract with the intending parents. While contractual surrogacy has been practiced successfully since the first baby was born this way in England in 1985, it was the widely publicized “Baby M.” court case in the United States made the greater public aware of the enormous developments—and potential ethical and legal problems—involved in surrogate 7 motherhood practices. In the “Baby M.” case the court had to decide custody arrangements for the baby conceived through artificial insemination of a surrogate, who is the baby’s genetic mother. The intended parents, a married couple, who had contracted with the surrogacy, had done so out of fear that a pregnancy would jeopardize the wife’s health after she had been diagnosed with multiple sclerosis.
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