Choice, Surrogacy, and a Troubling Response to My Previous Commentary on Criminalization


Last week, RH Reality Check published a response to an earlier commentary I wrote about what was being billed as a feminist effort to criminalize surrogacy in Kansas. If enacted, SB 302 would make surrogate parents, gestational carriers, and anyone who “is involved in, or induces, arranges or otherwise assists in the formation of a surrogate parenting contract” liable to up to a $10,000 fine or imprisonment of up to one year.

My commentary specifically critiqued what were presented as feminist arguments in favor of throwing people in jail on the basis of carrying a surrogate pregnancy to term. The rebuttal took no position on this matter while at the same time claiming my argument and concerns were “simplistic.” The authors disagreed loudly with me on a “litmus test for feminists” that I never proposed without ever taking a position on the central concern in my article: laws promoting jail time for surrogate families. As my colleague Emily Crockett noted independently on Twitter, I “was not arguing against ‘responsible policies and oversight’ re: surrogacy, rather CRIMINALIZATION.” Much as I respect them, it appears the co-authors of “Invoking ‘Choice’ When Discussing Surrogacy as a Feminist Concern is a Mistake,” responded to a straw man.

That said, in the interest of moving the discussion forward, I would like to engage with some of the points raised by the authors in their response, and raise some additional points for consideration. After all, I agree that, yes, surrogacy is a complex issue, and further, I believe readers are up to the task of considering the issues and making up their own minds.

The authors raise a number of legitimate issues, including the fact that surrogacy can take place in a market context, and that means “we should look closely at workers’ safety and rights.” Further, they address the fact that surrogates may have fewer economic resources than those families for whom they have chosen to bear children. These issues are important. Many of those who wish to outlaw surrogacy or place strict regulations on it have a strong, visceral reaction to the fact that money may change hands or contracts may be drawn up in the creation of family.

However, we may wish to consider three things: One, the inference of exploitation does not account for women who say they enjoy carrying pregnancies to term for other families. Two, pregnancy and especially childbirth are all-encompassing deals; taking those burdens on for another may well be worthy of compensation beyond a so-called labor of love. Three, fair contracts offer the possibility of protections, including clauses that could enshrine a core tenet of reproductive rights: that a pregnant woman direct the course of her own health care and outcomes—including but not limited to retaining the power to pursue abortion in consultation with her medical team, and retaining the power to decline a c-section.

There are a number of points the authors raise about the operation of surrogacy in an international context, and in this area it’s prudent to exercise caution in drawing broad parallels when crafting domestic policy here in the United States. The issue of black markets abroad is sobering, but wouldn’t it be the case that enacting strict regulations in the states could encourage rather than discourage the emergence of bad actors? After all, as many families facing infertility can attest, the drive to have children often doesn’t go away when the means to do so seem to disappear. To consider another case of homegrown solutions crafted to address international issues, we have seen how the situation of son preference in other countries has been repeatedly invoked in the introduction of racist, sexist abortion bans in the United States that do not address the issue of son preference in other countries but rather promote racial profiling and make abortion less accessible for women of color here at home.

It is also important to use caution when drawing broad conclusions about banning surrogacy based on the situation of women in other countries. For example, France is listed in the piece as one country that has banned surrogacy but is “more ‘feminist’ and protect[s] abortion rights far more strongly than the United States.” Some would argue that France has a more macho culture than the United States—during the height of the coverage of sexual assault charges against Dominique Strauss-Kahn, French feminist groups rose up decrying not just the alleged crimes but also the “inequalities and machismo of French society.” Further, France may offer reimbursements for abortion procedures, but abortion is only legal up to 12 weeks of pregnancy. Is that “protect[ing] abortion rights far more strongly than the United States”? That’s very debatable and also ignores a broader context about the access and availability of health care more generally. In any case, conflating the institution of surrogacy bans with the greater realization of feminism and abortion rights is neither germane nor descriptive of a cause-and-effect relationship; even if it were, it’s very debatable if more rights in one area justifies circumscribing a separate set of rights in another. Firmly, I argue not.

There are a number of additional points that I would like to introduce that merit careful consideration, especially when we consider what was framed as feminist arguments for the legislation I originally referenced, SB 302 in Kansas.

While my original piece focused on the testimony provided by two women in favor of SB 302, one additional person testified in favor of the bill. Mike Schuttoffel serves as executive director of the Kansas Catholic Conference and said in his testimony that surrogacy “violates the sacred bond of mother and child,” offering adoption as an alternative solution. This is important to discuss.

Some families headed by heterosexual couples thoughtfully choose surrogacy after facing problems with fertility. Surrogacy may play a special role in the formation of same-sex families, especially households headed exclusively by men. Is adoption a better answer? Perhaps for some families, but arguing that adoption is the sole correct answer for LGBT families or families dealing with infertility rings about as helpful as arguing that adoption is the perfect answer to eliminating the need for abortion. In modern times as in others, the experience of family varies dramatically from person to person, and prescribing what is best for families facing infertility doesn’t solve problems. (Janna Zinzi has a thoughtful piece on infertility, shame, and how Melissa Harris-Perry is sparking a national conversation about fertility and family through open discussion of how she welcomed a daughter through surrogacy here.)

Going back to a policy perspective, the Kansas bill can be seen as yet another part of a national effort to make pregnant women criminals. In Tennessee, for example, SB 1391 criminalizes drug use during pregnancy and offers an instructive lens for examining the Kansas situation. That’s because while women-focused proponents of the surrogacy criminalization bill argue that women in poverty need to be protected from economic pressures to bear children for another family, the reality is that the bill criminalizes everyone and facially neutral criminal laws are not applied proportionally on the basis of race and class. (My colleague Imani Gandy has an excellent commentary on how Tennessee’s pregnancy criminalization law will hit Black women the hardest, however race-neutral the bill appears to be, here.)

Regarding tactics and alliances, let’s also think carefully about whether and when it’s a good idea to partner with members of the “pro-life” advocacy community in regulating reproduction and surrogacy. The response article to my original piece appears to stand in solidarity with the arguments I deconstructed that Jennifer Lahl and Kathleen Sloan presented at the hearing in favor of SB 302. Perhaps this is no mistake—it could be that the co-authors agree with the presentation of that testimony in favor of criminalizing surrogacy, or it could be something else. We don’t know. What we do know is that Judy Norsigian, who co-authored the piece has, like Sloan, worked with Jennifer Lahl to promote Lahl’s anti-surrogacy film, Eggsploitation. This is important because this film was used as a prop in the campaign to criminalize surrogacy in Kansas; indeed, Lahl and Sloan headlined a screening of the film in Topeka the same day they testified for SB 302.

My point is not to single people out but to point out these relationships and interconnections. While I never argued for a “litmus test for feminists” and am not doing so now, it is fair to on a broader level question if these partnerships are a good idea. Informal or formal partnerships with anti-choicers might make sense in family policy areas where we should be able to find common ground (establishing fairness for pregnant workers, the right to nurse in public, and guaranteed paid family leave, to name a few), but do they make sense in the realm of reproductive health and medicine? Even if areas of agreement were to arise, the anti-choice movement’s disdain for fact-based arguments as well as its failure to address violence within its ranks creates serious reason for pause.

I urge the authors of the response piece as well as our readers to engage vigorously with the substance of my original piece and with these issues. Is a $10,000 fine and 365 days in jail an appropriate way to deal with concerns about surrogacy? Are criminalization, outright bans, and stringent regulations created with the intention of making new surrogate parenting arrangements difficult to outright impossible “thoughtful” approaches to these concerns? Is it ever OK to throw some women in jail for the sake of an invoked greater good? Under which circumstances is it acceptable to create new restrictions on reproductive rights?

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  • lady_black

    I agree with the author that surrogacy should not be criminalized.

  • Kathy

    I have twice written to RhReality Check requesting that I be given space to respond to Erin Matson’s personal slander and my requests were ignored. Since her attacks were directly personal – referring to me insultingly by last name only as “Sloan” – any professional journalistic response would have been to facilitate that. I have to assume that my requests were ignored because “Matson” is now working for RhReality Check & is therefore in a position to silence me. As a result, I have no alternative but to make my voice heard and defend myself in the Comments section. Hardly democratic or “sisterly feminist” behavior.

    Firstly, my pro-choice feminist leadership credentials are impeccable. I was elected twice to the board of the National Organization for Women (NOW) on which I still serve, unlike “Matson” who failed to fulfill her duly elected term as an officer. I have represented NOW at the UN as an NGO, creating several panels on sexual commodification of women at the Commission on the Status of Women as well as issues confronting indigenous women in rural USA. Representing NOW, in 2010 I gave the lead presentation at the UN Human Rights Council in Geneva on the media’s sexual objectification of women & girls and its violation of their human rights. As Executive Director of Connecticut NOW, I led the campaign for equal marriage with Love Makes a Family and innumerable other initiatives from equal pay to reproductive rights, protections for victims of domestic & sexual violence, inclusion of transgender people in CT’s hate crimes law and on & on.

    For the last 6 years my professional expertise has been on abuses of women’s human rights in third party reproduction. I have traveled all over the country speaking, testifying, lecturing and lobbying at legislatures, universities and law schools. My feminist perspective on these issues has been sought by the New York Times, Washington Post, San Francisco Chronicle, and many other major media sources. I was Program Director of the Council for Responsible Genetics where I was immersed in issues of women and biotechnology. What expertise does “Matson” possess in this area?

    Feminism 101: commodification of women & their bodies is antithetical to feminism, exploitation of women is wrong, serious endangerment of women’s health is wrong, creation of a breeder class of marginalized women for the wealthy in a class-based culture of entitlement is wrong.

    The European Women’s Lobby led a campaign for the adoption of a resolution by the European Parliament in 2011 on violence against women that condemned surrogacy as a violation of women’s human rights. “Matson” would do well to dispel her ignorance by reading leading Swedish feminist Kajsa Ekis Ekman’s book on the subject “Being and Being Bought: Prostitution, Surrogacy and the Split Self.” While once “Matson” praised my feminist leadership, she now insults and denounces me. I would not dignify her slander with a response if I weren’t compelled to defend myself against her ignorant, hateful and hurtful slander.

    • fiona64

      Just an FYI: AP style (journalistic writing, in other words) dictates referring to people by surname after initial reference.

      That’s all … it’s not “insulting.”

      Otherwise, I’m in agreement with your remarks.

    • Jodi Jacobson

      Dear Ms. Sloan,

      As another commenter has in fact already underscored, our style guide (which follows in most instances the AP style guide), does call for using the last name of a person *after* the first reference with their full name. Your full name appears at first reference.

      As to your contacts with us, we have received emails which basically reiterated the same points you have stated above, which amount to a resume or a recitation of your background and experience, not a *response* to the points and concerns raised in Erin Matson’s pieces. Whatever your opinions of her commentary, we would welcome a commentary specifically discussing why you support criminalizing surrogacy. Your background and experience are noteworthy, but this does not guarantee that every feminist, reproductive justice, and/or social justice thinker, advocate, or researcher will agree with you on everything you ever do or have done. None of us gets that. That is the very essence of debate and discussion. Plenty of people have disagreed, even vehemently, with pieces on this site in the past and will do so in the future. We engage the debates. Plenty of people in my career have in fact disagreed, even vehemently with me, for example, and I engage the debate with facts, consideration, and analysis. If you wish to engage the discussion from that point of view, you are welcome to do so. Otherwise what you have written is not a commentary. It is, frankly, an unrelated rant.

      Thank you.

      Jodi Jacobson

      • Kathy

        Thank you for responding Ms. Jacobson and I would welcome the opportunity to respond to Ms. Matson’s piece. As I requested in my email to you, please instruct me as to how to submit my response & in what format, length, etc.

        First and foremost, however, I must immediately correct Matson’ false allegation that I called for criminalizing surrogates. I have never advocated at any time or in any forum that surrogates should be criminalized nor would I. I was asked to testify in Kansas as an expert on the subject of abuses of women’s human rights in third party reproduction and that is precisely what I did; I never even mentioned the bill under consideration. For the record, this is exactly what I said and called for in my testimony: “Protect the human rights and dignity of women and children by ensuring that they not be degraded into commodities for sale to the wealthy. In his veto message of a bill in California that would have paid women for their eggs for research Governor Jerry Brown expressed the heart of this matter: “Not everything in life is for sale nor should it be.” It is my sincere hope that you will heed this timeless wisdom by prohibiting commercial surrogacy in the state of Kansas. Thank you very much for your time and attention.”

        I HAVE consistently called for the prohibition of commercial surrogacy since it commodifies women & their bodies, poses serious, sometimes even life-threatening risks to women’s health, and exploits marginalized women as a breeder class for the wealthy in what my NOW colleague MonaLisa Wallace calls “the factory farming of women.” I have NEVER called for criminalizing surrogates.

        • Shan

          “I have NEVER called for criminalizing surrogates.”

          But you testified on behalf of SB302, which would do just that. And you called for prohibiting commercial surrogacy. How does commercial surrogacy get prohibited without anyone who engages in it being criminalized?

    • purrtriarchy

      Prostitution and surrogacy should not be criminalized.

  • Phyllis Chesler

    Profit-oriented
    corporate surrogacy depends upon a vivisection of biological and culturally
    historical motherhood. It assumes that “surrogate uteruses” will feel
    no guilt, that their children will experience none of the traumas and behavior
    difficulties associated with adoption, that eggs from one woman, sperm from a
    stranger, the assumption of pregnancy risk by a second woman, and the legal
    adoption of this child either by a third woman, the legal mother, and/or by the
    low-sperm count father will lead to no burden on those involved or on the state
    later in life.

    These
    are dangerous assumptions. And why, may I ask, are American children who need
    to be adopted, who may be slightly used or “soiled,” and who tend to
    have African features–why must they remain institutionalized and deprived of
    family so that white families can have babies with Caucasian features–even if
    obtained through the pregnancies of women in India, which is increasingly the
    case? Why should the state (or we, the people) bear the burden of all the extra
    care and problems caused by so many children who have never been adopted?

    I support the work and views of Kathy Sloan and view
    them as true feminist views.

  • Bonzai

    Surrogacy and adoption, as well as egg and sperm donation all need far, far stricter regulation, although criminalization is obviously not the answer. At present, they are little more than legalized child trafficking. All of them violate a child’s most basic human rights; to know who they come from and to be raised by them if at all possible. Adoption and surrogacy come with the added issues of “primal wound” and the effect that removal from the (gestational) mother has on a newborn’s brain development and sense of self. We know, and have known for decades, that adoption is harmful, that adoptees are over represented in both psychiatric and addiction treatment, and there is no reason to believe that surrogacy is any less damaging.

    In addition to women not being used as incubators, children need to stop being treated as property, unaffected by transfer from person to person. While I feel badly for people who want children and can’t have them, that does not give them the right to cause pain and loss to children so they can have one to raise. No one is owed a child, no matter how desperately they want one.

    • purrtriarchy

      I can get behind this. Legal, but with strict regulations.

      These are people – women and babies, not commodities.

    • purrtriarchy

      One other thing. Your post made me think of artificial wombs, which will probably be developed eventually. No one ever considers how it might affect the child once born. We all just assume ‘ze should be grateful for the gift of life’ and erase any negative feelings the future kid might have. How would it feel to know that you were grown in a warehouse matrix style because mom did not want you? How alienated will you feel? Will you feel like a product and not a person?

  • Diane Beeson

    Matson’s original commentary asked the question of whether preventing surrogacy is feminist. Prevention is what SB 302 proposed by penalizing any person or entity involved in arranging such commercial transactions by making it a misdemeanor with maximum penalties of $10,000 or a maximum of one year in country jail or more. This may not be the best prevention strategy, but no one would be punished unless they deliberately flouted the law. Matson attacked two supporters of this Kansas bill as anti-feminist with the claim that “Nothing is more sacred than this right to fundamental self determination. A thoughtful response by members of the ProChoice Alliance for Responsible Research that raised many of the problems with commercial surrogacy was met with a continuing attack by Matson on those who are willing to find common ground in defense of women’s health.

    If decisions to carry a child for someone else or to ask another woman to bear a child only to relinquish it, were merely individual choices, reflecting self-determination rather than commerce, Matson’s argument might make more sense. The fact is that commercial surrogacy is a very social process that has become a source of wealth for a wide range of others than hopeful parents, including brokers, lawyers and clinics, and thus is rife with
    potential for exploitation. For these reasons, and because it involves the commodification of women’s reproductive capacities and of children, it is not merely an individual choice; it is a social issue. As with organ sales, some choices are socially unacceptable
    because they have proven to undermine social justice.

    It is refreshing to see cooperation across the abortion divide on this issue, by those who have had the courage to engage in it. This includes Kathy Sloan, Judy Norsigian and Jennifer Lahl. It is unfortunate that Matson chose to add to the personal rancor that characterizes so many policy debates between the right and left in this country and that has proven to be so destructive. This kind of discussion avoids the real issues.

    Foremost among
    these, and often ignored in mass media, are the health risks gestational
    mothers are exposed to and the serious medical problems more prevalent among
    the children produced with donor eggs and IVF.

    Recent research published in the Journal of Perinatology (Merritt, TA, et al. 2014) documents the
    significant health problems that result from ART for both gestational mothers
    and infants. Multiple births, preterm births and a higher overall rate of fetal
    anomalies were found in ART infants born in California between 2009 and 2011.
    Many of these birth defects will require ongoing medical or rehabilitative
    interventions throughout childhood. ART conceived pregnancies also have higher
    rates of c-sections with associated complications and co-morbidities for the
    birth mothers. These findings have led the National Perinatal Association to
    call for more ethical use of assisted reproductive technologies, greater
    transparency, better counseling of prospective parents and single embryo
    transfer to improve outcomes for mothers and babies.

    There is a long and continuing history in the US of medical
    abuses and cavalier manipulation of women’s health for profit. Examples include
    the DES disaster and the overselling of hormone replacement therapy (HRT) with
    its ultimately recognized link to increased risks for heart attack, stroke,
    blood clots, and breast cancer. Third-party reproduction opens many new
    opportunities for profit at the expense of women lacking medical expertise. For
    example, there is a widely acknowledged dearth of research on the long-term
    medical consequences of the radical hormonal manipulation on the bodies of
    young women who sell their eggs. In spite of experts’ acknowledgement of this
    lack of data, and in the face of countless reports of disastrous consequences,
    the fertility industry appears to have no more interest in conducting research
    on the long-term effects of egg donation than the tobacco industry had in
    addressing the health risks of smoking. The history of such treatment of
    women’s bodies has made women’s health advocates particularly suspicious of
    those who would use our commitment to reproductive autonomy to fuel highly
    profitable and poorly regulated business enterprises in which our bodies are
    the raw materials.

    I applaud Kathy Sloan and Jennifer Lahl for finding common
    ground in defense of women and children’s health. And I agree with the women of
    the ProChoice Alliance that
    “invoking “choice” and “paternalism,” as if those were the final words
    about contract pregnancy, is a mistake.” If only this issue were so simple.

    • rob908

      It is exactly because there is a potential for exploitation that commerical surrogacy should be regulated and not outlawed. I remain amazed that pro-choice women who argue against the outlawing of abortion by saying that criminizalization would not eliminate it but simply drive it underground where it because more dangerous are unable to see the similarity in policy outcome between that and surrogacy.

      • colleen2

        It should never be commercialized. It should never be a business opportunity, an industry, an opportunity for the business community. Particularly the present day business community. It should be regulated more stringently and with as much openness as organ donations.
        This is what trophy wives of wealthy Republicans will be able to order up… along with the other servant functions like cook, housekeeper, lawn boy and nanny. Feminism, my ass.

  • rob908

    Can you offer some thoughts on why American children who need to be adopted are not being adopted?

  • Shannon

    It seems to me that no one in the discussion is actually taking something very important into consideration. The surrogate. How many of you are surrogates? How many of you have gone through any of the procedures, tests, or other various processes that surrogates go through? Have any of you struggled to have a child? Now let me ask another question, how many of you are opposed to surrogacy as a whole? How many of you cannot understand how a woman could make and carry a baby knowing they were going to give it away? Does it make you uncomfortable? Angry? Disgusted?

    Corporate surrogacy does NOT assume that a surrogate will feel no guilt, or sadness, or any other emotion. It supplies counseling at any point in the process because they recognize this is a long involved EMOTIONAL process.

    How dare you all reduce surrogates to a “uterus” and say we are child trafficking! How dare you criminalize something beautiful and thoughtful and special? It shouldnt be commercialized? But yet if I am a surrogate for someone and I get no pay thats ok? I am putting myself at risk but should receive no compensation? Would that be ok? Or no because someone might get a “designer” baby? As in a baby that shares their genes which for whatever reason they are unable to pass on “naturally”.

    So gay men shouldn’t pass on their genes, women that have had cancer shouldn’t get to have a baby that looks like them, a woman that has suffered multiple pregnancy loss because of an incompetent uterus or cervix should just accept it? Oh wait they should adopt because its just SO simple and easy to adopt in the US.

    How dare any of you call yourself feminists while putting down your fellow women. We are all different. We all make different decisions in life and you have NO RIGHT to criminalize, degrade, belittle, or try to bully any woman into agreeing to your point of view. How dare you claim trickery, or coercion simply because you do not agree or approve! You are supposed to be helping your fellow woman not contributing to the problem.

    Do we need regulation and protections for women who chose to be surrogates? Yes. Do we need to assess the risks and potental rewards be them financial or physical? Yes. Should we criminlize surrogacy? NO!

    There is an answer. Strict regulation, good contracts, fair compensation, coverage by insurance, all that needs to happen. But we need to make sure that its not just so called “feminists” and people against surrogacy in the conversation. That is like asking a rich man how to get rid of poverty, if you haven’t been there you don’t know.

    I get this post seems angry and at this point after reading the comments that’s the place I am in.

    • http://plumstchili.blogspot.com/ Plum Dumpling

      Surrogacy and the sale of “eggs” make me profoundly uncomfortable.

      • Shannon

        It doesn’t matter how uncomfortable it makes you. Breastfeeding makes people uncomfortable too should we criminalize that? Your personal comfort is not the issue. My right to do what I want with my body, my uterus is.

        • http://plumstchili.blogspot.com/ Plum Dumpling

          I made no recommendation. I am still thinking about it, TurdBreath. FO and die.

      • Shan

        Every one of us who has a job rents some part of our selves out every day. I don’t see surrogacy or egg-selling as all that different. So long as it’s treated like any other LEGAL labor transaction.

        • http://plumstchili.blogspot.com/ Plum Dumpling

          I think criminalizing surrogacy is not a good idea. I do not recommend it or support it.

          • Shan

            I think criminalizing surrogacy and egg-selling is a bad idea as well. I also don’t recommend or support approve of either thing IF they’re only being done for the same reason that people sell their plasma (legal) or bodily organs (illegal) as a means of survival. I also don’t recommend or support or approve of people having to work crap jobs for crap wages for the same reason.

          • http://plumstchili.blogspot.com/ Plum Dumpling

            Must agree. Well put.

          • Shan

            To clarify thoughts I’ve had since: having to do those things just to SURVIVE is an indicator of a much bigger problem. Renting out your womb, selling your eggs or plasma or a kidney or part of your liver is a shit way to put food on the table IF that’s the only way you can feed yourself or your family. If you WANT to do these things just because you want to help someone else out, then that’s great, whether or not you charge money for it. But I don’t think it should it be a) illegal in the first place or b) illegal to receive monetary compensation for doing it.

          • http://plumstchili.blogspot.com/ Plum Dumpling

            Well said. You have put my feelings into words. Thank you for that.

          • Shan

            Welcome! It’s a difficult subject, apparently. My SO and I exchanged many words about it today, some of them fairly heated. He tends libertarian (small “L” as he likes to point out) and I’m very leftward leaning so it got a bit animated, so what we took away from the discussion was interesting and informative for BOTH of us.

            By the by, I feel the same way about adoption. As I understand it, in the USA it’s illegal for a woman to receive monetary compensation for giving her baby up for adoption. I think that’s insane considering how many OTHER people are involved in the adoption process who are still to profit from it. Adoptive couples sometimes pay tens of thousands of dollars. Who gets all that money? And why is it illegal for the birth mother to receive any of it?

            Someone posted a very pointed comment a few weeks ago and I wish I could remember who it was (it was a newish, semi-regular male poster IIRC) because I think it’s important. It was something like “We can’t have women getting paid for what they’re supposed to do for free!”

          • purrtriarchy

            Exactly.