The Debate Over Commercial Surrogacy Is Dividing Champions of the Sexual Revolution

As Hulu rolls out its third season of The Handmaid’s Tale, a show based on the Margaret Atwood dystopia in which fertile women are forced to become slave surrogates, New York is advancing a bill to legalize surrogacy. The bill is far from a slam-dunk. Instead, the debate surrounding the bill is highlighting a significant and growing fault line among liberal feminists who are divided about the ethics of surrogacy.

As reported by The New York Times, the bill has attracted the opposition of prominent women, from iconic liberal feminist Gloria Steinem to state assembly woman Deborah Glick, the first openly gay member of the legislative body, who expressed uncertainty that surrogacy is the right way to advance gay rights. “This is clearly a problem for the extraordinarily well-heeled,” Glick said, “It is pregnancy for a fee, and I find that commodification of women troubling.”

Her sentiments echoed those of Steinem, who wrote a letter to Governor Cuomo arguing that legalizing paid surrogacy places “disenfranchised women at the financial and emotional mercy of wealthier and more privileged individuals” and would allow “profiteering from body invasion.”

In a surprise move, one of the state’s most far-left senators, Liz Krueger, also opposed the bill. She herself struggled with infertility, but said that with surrogacy, “you’re buying and selling eggs, and you’re renting wombs.”

Other liberal feminists have come out in favor of legalizing surrogacy, arguing, as reproductive attorney Nidhi Desai did in the New York Times, that “this debate comes down to whether legislatures believe that people who are otherwise unable to bear children should be prevented from having an opportunity to build their family in this manner.” To feminists who support the practice, legalized surrogacy is just another extension of the “my body, my choice” mentality that dominates so much of liberal feminist ideology. If women should have the right to pay to terminate a pregnancy, they should have the right to be paid to carry one to term. 

But feminists are right to be concerned about the many risks and unknowns that come with paid surrogacy, most especially as they pertain to the surrogate women. For starters, whereas birth mothers placing a biological child for adoption enjoy strong and clear legal protections, surrogate mothers have almost none.

Take, for example, the surrogate hired by celebrity actress Sherri Shepherd and her now ex-husband. They used his sperm and a donor egg to impregnate their surrogate. While she was pregnant, they divorced, and Shepherd disavowed the child with whom she had no biological or martial connection. The surrogate mother was left responsible for caring for and supporting the child in a stunning turn upheld by the courts. As Slate put it, “The Sherri Shepherd Surrogacy Case Is a Mess. Prepare for More Like It.”

In another case, a surrogate unwittingly gave her own biological child away, having become pregnant both by in vitro fertilization with another couple’s biological child and naturally with her own in a rare event called superfetation, according to the Independent. She had to fight a protracted and expensive legal battle to get him back. In countless other cases, surrogates whose eggs were used have changed their minds about giving up the child, only to be told they must relinquish the baby which is biologically theirs. And many other surrogates have reported pressure to abort against their will when health concerns arise during pregnancy. In one high profile case, a surrogate refused the paying parents demands that she abort the baby when they discovered she had a cleft palate. They even offered her $10,000, but she refused. She wound up keeping the baby herself, despite being a single and low-income woman.

The list of strange and sad surrogacy cases is unending, and most states don’t recognize surrogacy contracts, making the cases nearly impossible to resolve in a consistent manner. Advocates for legalization point to these cases as a reason to legalize it and consequently, regulate it.

At its core, surrogacy is the instrumentalization of the female body for profit.

But regulating the industry will not necessarily make it less exploitative or dangerous to women. Egg harvesting and in vitro fertilization, both essential to surrogacy practices, come with significant health risks for women, including increased risk for ectopic pregnancy, ovarian hyperstimulation syndrome, and increased cancer risk, as well as an increased likelihood of health problems and cancer among children conceived through artificial means. 

Moreover, the industry largely preys on low-income women who turn to surrogacy out of financial desperation, a reality that has led most other countries in the world to ban the procedure in order to protect their poorest women from international exploitation. India was among the latest of countries to ban what The Telegraph called the “‘rent a womb’ exploitation of vulnerable women.” As Rachel Lu put it in The Week:

Surrogates, for their part, are generally poor people. There's a reason you hear about celebrities hiring surrogates, not becoming them. When Adele jokes about acting as surrogate to a gay couple, we know she's not serious; what woman of means would do that? Advocates talk about "protections" for involved women, but realistically, the clients of the fertility industry are generally wealthy, while surrogates generally are not. They're there because they need the money. 

Even if the surrogacy industry did not rely on poor and vulnerable women and did not entail health hazards for the women involved, nothing can change the reality that at its core, surrogacy is the instrumentalization of the female body for profit. That fact cannot be papered over with contracts and laws or even the noblest of desires, a baby. Like the drive to legalize prostitution in the name of regulation, safety, and women’s choice, the drive to legalize surrogacy will do nothing but give legal sanction to the further objectification of women.

This reality is bringing together strange bedfellows, be it liberal feminists and conservative Catholics in Europe, as The Atlantic reports, or here at home, where a Catholic like myself finds myself ardently concurring with the likes of Gloria Steinem. And it is exposing a fault-line among feminist champions of the sexual revolution, who are left to contend with the newest frontiers of "choice" and sexual free will. 

Interestingly, one of the women portrayed in The Handmaid’s Tale is revealed to have been a paid surrogate by choice before a revolution gave way to a world where fertile women are slaves to the wealthy and powerful. It would seem even the creators of perhaps America’s most famous surrogacy story have the intellectual honesty to acknowledge that legal, commercial surrogacy takes us down a path we do not want to go, most especially if we care about the dignity and rights of all women. Here's hoping that lawmakers in New York and elsewhere agree.

Ashley E. McGuire is a Contributing Editor at the Institute for Family Studies. Her new book is Sex Scandal: The Drive to Abolish Male and Female (Regnery, 2017).