Surrogate Pregnancy

This year, a woman formerly famous as an infant known as “Baby M” turned thirty-five.

In 1983, Mary Beth Whitehead, a homemaker, and her husband Richard, a sanitation worker, filed for bankruptcy. The following year, Mary Beth answered an advertisement from the Infertility Clinic of New York:

SURROGATE MOTHER WANTED.

Couple unable to have child willing to pay $10,000 fee and expenses to woman to carry husband’s child. Conception by artificial insemination. All replies confidential.

In February of 1985, Mrs. Whitehead signed a contract, agreeing to take on the potential health risks, to not smoke, drink, or take drugs, and to submit to amniocentesis and/or abortion at the request of the man with whose sperm she would be inseminated. In return for this, she would be paid nothing if she did not conceive, $1,000 if she conceived but suffered a miscarriage or stillbirth, and $10,000 if she gave birth to and signed away parental rights for a child.

In July of 1985, she conceived through artificial insemination by the sperm of Bill Stern, to whom she was contractually obligated to give the child. But after she gave birth on March 27, 1986, Mary Beth Whitehead broke the contract. She gave the child a different name than Stern had stipulated, recorded her own husband as the father, and after giving the baby to the Sterns, returned the next day to their home, distraught, asking to keep her for just another week, which they granted.

In fact she would keep the child, now christened Sara Elizabeth Whitehead, for much longer than a week. The Whiteheads evaded a police attempt to take the child from them to the Sterns, and fled from New Jersey to Florida, where they would move incessantly, staying at fifteen different motels in twenty days. They suspected, rightly, that they were the object of a search. The Sterns had hired private detectives who, along with Florida police, were looking for them.

By July, anxious and stressed from constant fear of her baby being taken from her, Mary Beth Whitehead called Bill Sterns, asking him to call the search off, and rambled on, distraught, even implying she might kill herself or the child. Within two weeks, she would be voluntarily admitted to a hospital and her husband would bring Sara to Mrs. Whitehead’s parents’ home. Shortly thereafter Florida police would take custody of the baby to return her to New Jersey, where a custody trial could now take place.

Judge Harvey Sorkow ruled that the surrogacy contract was legal on the grounds that “refusal to enforce these [surrogate motherhood] contracts and prohibition of money payments would constitute an unconstitutional interference with procreative liberty since it would prevent childless couples from obtaining the means with which to have families.” The only section of the contract Judge Sorkow considered illegal was its barring Mary Beth Whitehead from aborting the child prior to birth.

Upon appeal, the New Jersey Supreme Court unanimously delivered a biting chastisement to Judge Sorkow for having issued the order to take the child prior to a hearing:

We do not know of, and cannot conceive of, any other case where a perfectly fit mother was expected to surrender her newly born infant, perhaps forever, and was then told she was a bad mother because she did not.

The court ruled that the contract itself was not legal under a constitutional right to procreate – it was illegal under New Jersey law banning the sale of children in the adoption process:

[It is] the sale of a child, or, at the very least, the sale of a mother’s right to her child, the only mitigating factor being that one of the purchasers is the father. Almost every evil that prompted the prohibition on the payment of money in connection with adoptions exists here.

While establishing Mary Beth Whitehead as the legal mother and giving her visitation rights, the court continued to grant Bill Stern sole custody, by virtue of greater home stability.

Paving the Way for Surrogacy

While there are documented instances back to Abraham of men impregnating women outside of their marriage for the purpose of creating an heir, the practice was rare and even more rarely acknowledged in the United States until the mid-1970s. A few audacious entrepreneurs established agencies to broker surrogacy arrangements, but prior to that, trends in American culture set the stage for surrogacy’s public debut.

Scott B. Rae and Paul M. Cox, in their 1999 book Bioethics, note that “reproductive arrangements such as surrogate motherhood are neither new nor particularly complex technologies, though there are arrangements that involve IVF [in vitro fertilization]. What is new about surrogacy is the presence of lawyers and contracts in the area of procreation.”

To the New Jersey judiciary, the question was not whether it is right or good for a woman to conceive and carry a child to whom she will renounce her parental rights and give to someone else – the question was whether she is free to enter into a contract or not. If she is, then the state is obligated to enforce it, even if she changes her mind. In fact, it may be a constitutional obligation for the state to enforce surrogacy contracts in order to protect “procreative liberties” – an inherent right to procreate – as the Sterns’ lawyer argued and Judge Sorkow agreed.

Technology has been instrumental in spurring acceptance of surrogacy. By placing insemination (and more recently, fertilization itself) under the purview of doctors, what had once been entirely private to the people conceiving is further distanced from any intimate act. Medically directed artificial insemination not only makes the combination of sperm and ovum a clinical process, but also makes the relationship of the biological parents defined by contract without the messiness or richness of family life.

What is new about surrogacy is the presence of lawyers and contracts in the area of procreation.

The homemaking ideal (or idol, in some cases) of the 1940s and ’50s had waned, and while feminist philosophy and the feminist movement as a whole had moved toward understanding and promoting the differences of women from the other sex, there was a tendency in American professional class culture to see women as not only equal in dignity, but identical in posture to men, conforming women to hitherto male norms.

In this view, motherhood became identical to generic parenthood, which fatherhood was understood to represent. This produced a degraded view of a woman’s time spent pregnant: an aberration from life for women within the professional class (because it would have been an aberration from normative – male – lives), but perceived as normal for the homemaking or underemployed women of the lower classes. If the woman’s roles could be medically divided into discrete aspects of ovum, womb, and child-rearing, then motherhood (meaning the last of those three aspects) could now be identical to fatherhood.

The understanding of marriage similarly changed from being a covenant within a community which reinforces it to being perceived more and more widely as a contract, and a violable one at that. If this intimate relationship could be enacted and ended on a legal contractual basis, perhaps conception itself could also be done by contract?

With freedom to enter into contracts, technology to overcome barriers, and new conceptions of motherhood and family to back it up, what opposition would there be to surrogacy?

Protestant Ambiguity

In May of 1988, the New York State Task Force on Life and the Law released the report for which it had been commissioned: “Surrogate Parenting: Analysis and Recommendations for Public Policy.” Of the twenty-six members of the task force, seven were religious ministers, and its report included a thorough review of the perspectives of religious groups.

Feminists found themselves in the unusual position of concurring with the Vatican’s stance, arguing that in surrogacy there was something degrading to the dignity of women, and, in contrast to Judge Sorkow, seeing no individual right to have a child – only a right to try. Roman Catholicism and the leading Jewish movements had taken clear stances, though this may not have been effectively communicated to the laity. But when it came to Protestants, “few Protestant denominations have reached or expressed firm conclusions about surrogate parenting.”

At that time, religious adherence was not a predictor of opinions on surrogacy – being Baptist, Lutheran, Pentecostal, Presbyterian, or Roman Catholic made no difference in the likelihood that one would approve of surrogacy. In Dearborn, Michigan, Noel Keane, the lawyer who drafted the first formal surrogacy contract in the United States and also arranged Baby M’s conception, reported that among intended parents who sought his surrogacy services the largest portion self-identified as Protestant: 46 percent of men and 33 percent of women. Meanwhile, 49 percent of surrogate mother applicants identified as Protestant.

The Human Dignity of Women and Babies

The feminist Free Birth Society podcast put it bluntly: “To buy a baby you must first rent a woman.” While altruistic surrogacy (unpaid surrogate motherhood) has been portrayed in such popular media as Friends and Star Trek: Deep Space Nine, where it forms a convenient explanation for an actress’s real-life pregnancy, it is rare in reality. While most surrogate mothers cite a desire to give another woman a chance to experience motherhood, in a study by a Michigan psychiatrist nine in ten surrogate mothers said money was a “necessary factor.”

What happens while a mother carries a child in her womb is not a service; it is a miraculous process far beyond our human strength, wisdom, and ability to replicate. It is not a job like tilling a field, writing a paper, or even caring for another person’s children. It is deeply personal and even spiritual, as Eve exclaims at the birth of her first son in Genesis 4, “I have gotten a man with the help of the Lord.” A Christian woman believes the Holy Spirit dwells within her and that her body is God’s temple, a site of worship and holiness. Should that temple be sold or rented out?

All people are made in the image of God and hold inherent worth. We can engage in commerce without violating that worth: a woman may sell produce from her farm or her artwork and lose nothing of what is personal and inherent to her. But what is valued in a woman hired as a surrogate is not her skill with a paintbrush or her diligence in weeding and watering, it is that she has a womb. She is treated not as the gardener but as the soil itself.

Photograph by Phakphoom Srinorajan

Mary Beth Whitehead’s surrogacy contract contained two provisions typical to such contracts: a requirement to submit to amniocentesis on request of the father, and to have an abortion on request of the father. Interestingly, while Judge Sorkow objected to another provision banning Mrs. Whitehead from having an abortion on her own decision, he did not take issue with the provision requiring her to have an abortion if ordered by Mr. Stern.

This provision allowing a request for amniocentesis was exercised by Mr. Stern, and Mrs. Whitehead underwent the procedure against her wishes in November 1985. The purpose of amniocentesis is to detect the possibility of disability or genetic disease, usually resulting in advice to the mother to abort the child, although the procedure has a high false positive rate. In surrogacy, this reasoning is even more explicit. Contracts may, as Mrs. Whitehead’s did, cite genetic or congenital abnormalities in the fetus as explicit grounds for an abortion to be ordered. The reason for such provisions is clear: the child is valued as a product which, like other products paid for, is expected to be up to specifications.

Nor is this theoretical. In addition to abortions performed on surrogate mothers at the decision of intended fathers, an instance of a child born to a surrogate mother, hired by Noel Keane’s Dearborn agency, eventually went to court in January of 1983. The child suffered from microcephaly, and neither the intended father nor the surrogate mother were initially willing to care for him or assume responsibility. When pressed to make decisions for his child, the intended father requested that the hospital cease even the most basic life-saving care. To prevent this, the hospital and the surrogate mother fought a court battle, which they won, and she and her husband assumed full parental care for her son, who survived. She in turn filed suit against Mr. Keane and the medical team who carried out the artificial insemination after it turned out that her son’s illness was caused by a sexually transmitted disease from the intended father, for which they did not test. In their defense, the New York Times reported, “Mr. Keane and the doctors argue that they have no legal duty to protect the surrogate mother and child.”

Defenders of commercial surrogacy maintain that the surrogate mother is paid for the service she performs, with the implication that gestation and labor are simply normal commercial work tasks. This reduces her body and most personal being to something that may be bought and sold as a means to an ends. But this is only part of the story; the reality is worse. The surrogate mother is paid not for the use of her body, but for selling to eager buyers a product: her child.

Commercial surrogacy exchanges money for a human being. This violates adoption laws, which bar or even criminalize paying someone to surrender parental rights. But it also offends the morals of biblical Christianity, which see the human person as holding inherent worth and value, and the objectification and commodification of the person as an affront not just to that person’s dignity, but to the dignity of the God in whose image that person is created. As a 1987 Christianity Today editorial put it, “What Christ has bought at infinite price ought not to be commercialized.” This applies both to the child purchased by intended parents and to the surrogate mother, whose womb is commodified.

Procreation and Marriage in the Church

The relationship between man and woman exemplifies God’s ordering of life, a union that makes two people one flesh to face hardships and joys and sometimes, though not always, to have children together. When the shared life of marriage is practiced within church community, it is reflected in a wider shared life. Infertility or the inability to adopt, while painful, can be borne not only with the help of a spouse but also with the help of others. Rather than seeking emancipation from natural actualities by hiring another person to enable their genetic procreation, Christians who are infertile or unable to adopt can avail themselves of contract-free relationships with others who understand their burdens, within a community where their desire to love and nurture children can be matched with children who need caring role models.

Surrogate pregnancy uses a sort of misshapen marriage covenant as its contract for procreation. Where the biblical understanding of marriage includes a wife and husband having authority over each other’s bodies (1 Cor. 7:4), surrogacy contracts award authority over the surrogate mother’s body to the intended father. This snippet of the marriage covenant, unreciprocated by the man and purchased in a commercial transaction, is misguided and abhorrent.

Couples unable to conceive or adopt are often understandably grieved by their inability to carry on the family line or experience the joys of parenthood. But, ultimately, is that what children are for? Married couples who do have children might also discover that children are not up to the task of giving wholeness and meaning to their parents’ lives. Couples in both situations may need to be directed back to God’s primary purpose for their lives: to glorify and enjoy him. Here, Protestant churches have often struggled to affirm the diversity of roles in the church. Conformity to an American ideal of a nuclear family with children has sometimes been an unspoken rule. This conformity to an outside cultural norm has weakened the church’s witness as a communal structure that includes people of every status. When cultural norms changed and new family structures arose, the church struggled to articulate a defense of a norm that it had adopted for reasons that were more culturally than theologically rooted. It may be that the Roman Catholic Church, with its celibate priests, nuns, and monks, and Orthodox Judaism, with its strict kinship definitions, were better prepared to withstand a new gusting wind in popular cultural norms – they were already outside them.

Restoring Motherhood to Its Rightful Place

After Baby M was born, Mary Beth and Richard Whitehead took her home and brought her to a Roman Catholic priest who baptized her as Sara Elizabeth Whitehead. While this did not necessarily violate the terms of the surrogacy contract, it certainly violated the spirit, by which Mrs. Whitehead was to waive all parental rights. A conflict existed between the commands of the surrogacy contract and what they as Roman Catholics understood as God’s command to present their child to be baptized. In regards to her child, should the surrogate mother obey the contract she agreed to, or obey God?

In the Baby M case, neither of the women involved were given any claim to custody. Mary Beth Whitehead was not held to be unfit, but was still denied custody on the grounds of her emotional reaction to her child being taken from her, and her comparative poverty. But Betsy Stern, though married to the father and the eventual stay-at-home parent to the baby who would come to be named Melissa Stern, would have had only a very tenuous custody claim should she and her husband divorce. Rather than view motherhood as inherently and uniquely significant, the value of comparative stability and wealth trumped the value of motherhood.

What happens while a mother carries a child in her womb is not a service; it is a miraculous process far beyond our human strength, wisdom, and ability to replicate.

In the case of Baby M, as in the case of the woman giving birth to a child with microcephaly, the surrogacy agencies asserted and operated as if they had neither the obligation nor the inclination to promote the well-being of the mother.

After giving birth, Mary Beth Whitehead did not practice the highest standards of conduct. She begged the Sterns to have the child for just another week, then changed her mind. She disobeyed and deliberately stymied police. She fled the state, led her husband to quit his job, moved from place to place, and even suggested suicide or murder over the phone to her child’s father. She was reluctant to tell the whole truth even under oath. In the court ruling, she was in fact faulted for all these actions. But she had not acted like that prior to her surrogate pregnancy. She would not have acted like that had she not, in February of 1985, signed a contract to be impregnated and carry a child for whom she promised to surrender all parental rights.

The eventual court rulings from Judge Sorkow and the New Jersey Supreme Court sought the best interest of the child in awarding full custody to Bill and Betsy Stern. That decision, while tragic in devaluing motherhood and cutting the baby off from her mother, at least was based in seeking the good of the child. The surrogacy contract had not done even that much.

That surrogacy contracts should allow the intended father to order amniocentesis to confirm the quality of the product he has made contract for at significant expense, and to order its disposal through abortion if it fails to meet desired specifications, should not be a surprise. It is a clear consequence of the objectification of the child and the surrogate mother, who has no agency in the process, other than to choose to surrender authority over her body and her child by signing the contract at the beginning.

Not Too Late to Take a Stand

Commercial-scale surrogacy started with Noel Keane’s organization in 1976. In the wake of the Baby M case, public outcry spawned a multitude of bills proposed in state legislatures. Few made it into law. Changes by 1989 were limited to Louisiana and Michigan, which passed bans on commercial surrogacy, and Nevada, which legalized it. Since, there has been a steady rise in surrogacies, with over three thousand pregnancies for surrogate mothers through IVF alone in 2013. Yet even today, the legal environment for traditional surrogacy is murky in most states. While Florida, Virginia, and Washington State have declared it legal, in many states it ends up going through the adoption process, making compensation still officially illegal, even if this is not often enforced.

The legality is not settled. Opinions are not locked in either. Perspectives on surrogate motherhood never mapped well to partisan or religious affiliation. And in many cases those opinions are not strongly held. Opinions and laws may be changed.

Though the Protestant churches in the United States have missed opportunities to share biblical truths and values since the 1980s, the chance remains to admit that mistake and correct it. Churches can find the voice they forgot they had and take up again the call of their confessions, their scripture, and their God. American culture needs to hear about the inalienable dignity of people as created in the image of God, which makes it unthinkable to allow women’s bodies to be commodified and children to be inspected and disposed of or purchased. And even Christians need to be reminded that marriage is God’s intended place for the propagation and rearing of children.