Is Preventing Surrogacy Feminist? No, It’s Anti-Choice


This January, the Kansas Senate Public Health and Welfare Committee held a hearing on a bill that would make surrogate parents, gestational carriers, and anyone who assists them liable to up to a $10,000 fine or imprisonment of one year. After the controversial hearing, the senate president and vice president, both conservative Republicans, issued statements clarifying their opposition to the measure.

Two women came from the coasts to testify in favor of SB 302: Jennifer Lahl from California and Kathleen Sloan from Connecticut. Lahl is a filmmaker who has made it her life’s mission not just to stop surrogacy but also more common forms of fertility treatments, including sperm donation. She also opposes stem-cell research. In short, Lahl is anti-choice. In addition to testifying against surrogacy in Kansas, she keynoted a Georgia Right to Life fundraising dinner and spoke at this year’s annual Cardinal O’Connor Conference on Life, which takes place at Georgetown University just before the annual March for Life.

Sloan is more complicated. At the hearing, she immediately identified herself as a board member of the National Organization for Women and continued to present what she believes is a feminist case for outlawing surrogacy. In doing so, Sloan upset the Kansas chapter of NOW, which said in a legislative alert following the hearing that she “did NOT speak for the Kansas National Organization for Women last week when she testified in favor of SB 302, nor was she speaking on National NOW policies.” (Disclosure: I know Sloan and used to serve as an officer on NOW’s board of directors.)

In any case, it’s important to debunk the idea that criminalizing surrogacy should be part of the feminist project. The assault on surrogacy, as well as fertility treatments in general, is yet another piece of the right’s battle against reproductive self-determination.

Sloan and Lahl make a paternalistic case for why those who use assisted reproductive technology to conceive a child should face jail time. “First and foremost, surrogacy commodifies women and their bodies,” they said in a recent opinion piece in the St. Paul Pioneer Press opposing two Minnesota bills that would regulate surrogacy in the state.

Does this argument sound familiar? Anti-choice advocates love to claim that women must be protected from their own reproductive decision-making so as not to be “used” by men or others. It’s an argument that falls flat. You can’t claim that freedom comes from restricting freedom. In particular, freedom for a less privileged group will not be increased by having the state impose more restrictions upon them.

In her testimony before the Kansas committee, Sloan also raised concern that women who participate in surrogacy have “inadequate ‘informed’ consent” about what they may be doing. Once again, the argument is extremely paternalistic and assumes that women need guidance—often including anti-choice ideology—from the state in order to make decisions about the most intimate aspects of their lives. Indeed, we’ve heard this “right to know” song and dance before. It has led to 35 states requiring women to receive counseling before an abortion is performed, a third of which cite one of the most scientifically unsound talking points from the anti-choice choir book: that fetuses can supposedly feel pain.

In making what she believes is a women’s rights case for the criminalization of surrogacy, Sloan also expressed concern in her testimony that associated medical treatments, including in vitro fertilization (IVF), may harm women. While women who use IVF to conceive a child rarely report it was easy, they often say the outcome of having children was worth it—far from what an outside observer could properly classify as harm.

Further, the testimony painted a disempowering picture of those who freely choose to help another family have a child. “Surrogacy exploits poor, low-income, and otherwise financially vulnerable women,” she said in her testimony. She called women who might carry surrogate pregnancies to term “sitting ducks for exploitation and fraud.” This rhetoric insults women who serve as gestational carriers by portraying them as people who have no agency.

In contrast, Lynlee Weber, a Kansas resident who had served as a gestational carrier four times, testified at the same hearing. “When reading Senate Bill 302, my heart aches and my stomach turns,” she said. “Women must be able to decide for themselves if carrying a child for someone else is best for them. Intended parents must be able to decide for themselves if surrogacy is the best way for their child to enter this world.”

Nothing is more sacred than this right to fundamental self-determination, and it’s distressing to see the aegis of feminism applied to an extremely anti-choice effort to restrict reproductive rights. Sloan may be using her affiliations with women’s organizations to claim that surrogacy must be stopped, and it’s no question that Lahl benefits greatly by having a partner like her, but we must be clear that criminalizing freely chosen reproductive actions is not part of the feminist project, even if two people claim women will be exploited if we don’t.

Women don’t need to be protected from themselves. They certainly don’t need to be thrown in jail for harvesting their eggs or seeking assistance with infertility.

Indeed, family is what you make it. That’s a beautiful thing, and that’s feminist.

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  • Lieutenant Nun

    Sounds so very catholic.

    • Shan

      I think this whole surrogacy brouhaha in the KS lege was the brain-abortion (I won’t say brain-child) of our very own Mary Pilcher-Cook who, apparently, has way too much time on her hands. Catholic, divorced (after experiencing DV no less) but still supporting every bit of legislation that makes it harder for women like her to escape the very situations she did. Thanks, Mary!

    • Arekushieru

      And so very typically fundamentalist Conservative Catholic hypocritical. They say that ‘abortion is wrong’ because it prevents a life from happening. Well, banning surrogacy does the exact same thing! It prevents a life from occurring that could have otherwise happened.

      Also, banning surrogacy as a way to prevent women’s bodies from being used as commodities, simply does so on the backs of WOMEN. That is not a feminist move. A feminist move addresses the issues involved by ensuring that the method actively invests BOTH men and women in becoming the solution.

      • Shan

        “Also, banning surrogacy as a way to prevent women’s bodies from being
        used as commodities, simply does so on the backs of WOMEN”

        Exactly. And presumes women can’t or shouldn’t make these decisions for themselves.

        Also, how exactly do they explain away how adoption doesn’t fall into the same category? It can cost tens of thousands of dollars to adopt a baby; women’s bodies are most certainly commoditized even though it’s illegal (in the US) for a woman to receive money in exchange for giving up her baby.

        • BJ Survivor

          and therein lies the crux of the problem for the forced-birth crowd. women should never be compensated for what they were put on this earth to do, dontcha know. Only the baby brokers and lawyers should be able to profit from women’s work. And, of course, reproduction should be fraught with danger, suffering, and should have a male owner involved otherwise, so nay to IVF and sperm donation, too.

  • John H

    You know, I hadn’t even considered surrogacy as sex work up until reading it described with the exact same phrase used by sex-negative ‘feminists’ moralizing at/about sex workers; it’s not exactly the same, being the use of one’s body to provide a reproductive service (gestating a child) instead of providing sexual services, but it’s an interesting connection to draw. Like sex work, surrogacy should be legal, but given that a lot of jurisdictions have banned sex work in some or all forms, I do think a similar(ly bad) case can be made for banning surrogacy, so I guess I’m no longer that surprised. Can’t have women getting paid to do stuff they’re supposed to do for free, amirite? /snark

    • Shan

      “Can’t have women getting paid to do stuff they’re supposed to do for free, amirite?”

      Excellent point.

  • Lucreza Borgia

    Being a surrogate, in and of itself, isnt the issue for me. It’s HOW the embryo was created. Women who donate eggs often do so because they need the money, not for altruistic reasons and the egg donation industry certainly doesn’t explain to these women that they are seriously compromising their fertility.

    Anon sperm donation also has it’s own issues. Don’t you think children have the right to know their parentage? Do you think that children from the same donor don’t accidentally meet up and have sexual relationships?

    Infertility is an unfortunate situation. At the same time, that doesn’t entitle you to the use of another person’s body and body parts.

    • Arekushieru

      I think there might be a bit of confusion going on, here. Not every woman who uses a surrogate needs donor eggs. And donating eggs and surrogacy are, essentially, two different things. After all, one would think that egg donors are not sought out, specifically, for their services (as an egg donation ‘bank’ is typically used, no?), like surrogates are. Also, donating eggs does not require nearly the time and compensation that surrogacy does. Finally, many women who donate eggs do so because they have no (more) expectations of having children of their own, at least more women than those who are involved in surrogacy, I believe. Although, I would like to see more regulation on either side of this equation.

      I am not going to argue in favour of children knowing their parentage on the basis that two children from the same donor might have a sexual relationship with each other, other than that they have the right to know with whom they are having a sexual relationship. My main contention about anonymous sperm donors (AND egg donors, natural mothers, surrogates, mitochondrial donors and foster parents), however, pertains to the right of all children to know who their parents are, in whatever form they may come.

  • e_violin

    This piece has some of the worst white middle-class liberal rhetoric in it I’ve seen in a while. (To be completely clear, my critique comes from a left/radical perspective, not from the right.) I would never support women being criminalized or being sent to jail for donating eggs or acting as surrogates, but to decry structural analysis of this phenomenon as ‘anti-choice’ is just terribly disingenuous. Women who are poor and struggling, women of color, disabled women, etc. DON’T have as much ‘agency’ as women who are none of these, and they ARE more vulnerable to exploitation by the ruling classes. That’s a pretty basic fact, and a very basic principle of feminism. Criticizing those who would take advantage of women in these positions is not opposing anyone’s reproductive freedom in and of itself.

    • CocksackieBJ

      You obviously hate women.

      • e_violin

        LOL OK

      • Arekushieru

        Um, no. E-violin probably has more respect for women in their little finger than you will ever have in your entire life time. I think e-violin missed the point of the article, but they were addressing the axis of oppression that affect women, a common theme that runs through the arguments we, ourselves, make to you. But you refuse to see things in anything other than black and white. You believe that our argument for choice is based on nothing other than an endless array of options, when actually it’s based on women’s oppression and the only remedy to that situation, their rights. Perhaps you’ll get it, now, but, somehow, I doubt it.

    • Mindy McIndy

      I can see that point. I watched a documentary about surrogacy, and how a lot of people will have their embryos or donor embryos implanted into women in Indian slums. They were all kept in a ramshackle house, and the women were paid on average of $600 USD for nine months of the crap that is pregnancy. Right after they gave birth, the birth mothers were separated from the babies, never even getting to see them, and a lot of the women had emotional problems from that. Because this money was nearly as much as a family in the village would bring in every year, it was very enticing to them because of how poor and desperate they are. And because doing it in India was cheaper than doing it in a Western country like the US or Britain, a lot of parents were flocking to these places for that purpose. (Especially if they were using donor eggs, which cost them quite a bit of money.) That is something I can take issue with, because it is a sort of preying on an impoverished person’s desperation. (And to note- the special wasn’t anti-surrogacy, but rather showing different couples and their different approaches to surrogacy throughout the world.)

    • stubbikins

      They do have the basic choice of what to put in their uterus.

      • Arekushieru

        Not really. A choice between bad or worse is not a choice. Especially when compared to the choices that women with more agency DO have.

        • stubbikins

          Surrogates and egg donors are not forced into anything. Choices are choices, even when choices suck.

          Taking away the choice does remove choice.

          • Arekushieru

            Uh, yeah, coercion, pressure do remove choices. Sorry to make your point for you.

          • stubbikins

            Women are not coerced into being surrogates or donors. They volunteer.

          • Dawn9476

            And I believe it is also a requirement that they already have a child or children. You can’t be a surrogate if you haven’t at least given birth to at least one child.

    • Shan

      “Women who are poor and struggling, women of color, disabled women, etc.
      DON’T have as much ‘agency’ as women who are none of these, and they ARE
      more vulnerable to exploitation by the ruling classes.”

      That’s absolutely true and I’m glad you brought it up, but people like Mary Pilcher-Cook and many other Kansas legislators (please note, I live in Kansas and know about these people) have little interest in anyone or anything that doesn’t advance their anti-choice agenda. Yes, that same agenda is also pro-corporation but I don’t think these legislators are capable of realizing that their anti-choice policies are also helping work the Koch bothers agenda for them. They’re not really big-picture types.

    • Arekushieru

      Here’s a quote from the article, itself, for you: “In particular, freedom for a less privileged group will not be increased by having the state impose more restrictions upon them.”; to underline part of the reason why, as I mentioned to CBJ, I think you might have missed the point of the article. It’s essentially saying that women like Sloan and Lahl are restricting the freedoms of other women, like those you mentioned, further, rather than increasing it.

      As for the other part of the reason why, I think it might be self-explanatory once you read my reply to Lieutenant Nun, below.

  • Dawn9476

    Lots of gay people use IVF, sperm donation, and surogacy to become parents in places like California so I wonder if preventing that from happening there is Lahl’s real goal.