Once upon a time, determining a child’s maternity was a no-brainer. Whoever gave birth to the child was clearly its natural mother. But these days, with the advent of new technologies like surrogacy and egg and embryo donation, identifying one woman as a given child’s mother isn’t always so easy.
Is the mother the woman who provides the egg, carries the fetus, or intends to raise the child? What if the woman who provides the egg and the woman who delivers the child are lesbian partners? What if a gay male couple or a single man intends to raise the child? Do we need to add new categories to birth certificates or agree to leave some spaces blank?
With the release of “Baby Mama,” and recent coverage of surrogacy in Newsweek and segments on Oprah and the Today Show, the issue—once a fairly taboo topic that ignited with the Baby M. case in the mid-1980s—is getting a lot of attention and becoming increasingly normalized in the United States.
This newfound popularity is likely due to the advent of gestational surrogacy. Unlike traditional surrogacy, in which the surrogate uses her own eggs, gestational surrogacy gives a woman the ability to carry a child to whom she has no genetic relationship. Using in vitro fertilization, an embryo can be created in a lab either from the egg of the woman who wants to raise the child or from an egg provided by yet another woman; the embryo is then transferred to the uterus of the gestational surrogate.
This splicing of maternal functions typically gives the “intended” mother (when there is one) more of a claim to the child (especially if she is also the genetic mother) and concurrently lessens the gestational mother’s claim, should a dispute over legal rights to the child arise. Even so, deciding what makes someone a mother is no easy task.
Surrogacy laws in the United States have developed in a piecemeal manner. Some states—either through the courts or the legislature—have banned any kind of surrogacy and may penalize those who broker or participate in surrogacy arrangements. Other states may simply refuse to recognize or enforce surrogacy contracts. Still others allow surrogacy but regulate it in a variety of ways. Most state legislatures, however, have not addressed surrogacy at all and leave it to the courts to work out the details when things get messy.
This leaves most states with some important questions to resolve. Should they privilege genetics above all else, like the courts in Ohio, and always presume that the genetic mother should be the legal mother? Should they, like California’s courts, simply look to the original intent of the parties and uphold the agreement into which they entered? Or should they presume that the birth mother is the legal mother, like a Washington statute requires?
Although a comedy, Baby Mama raises some of the very serious issues involved in gestational surrogacy: trust among the parties involved, effectiveness of the fertility treatments, the ethics of paying one woman to carry someone else’s baby, and class distinctions, just to name a few. All of these areas are crying out for better regulation. Let’s just take a few examples.
In the movie, Amy Poehler is inseminated with three of Tina Fey’s embryos. What if she had to carry triplets? With the rise of multiple pregnancies and all the possible risks they present to the birth mother and children, how many embryos should a doctor be allowed to transfer to a surrogate? How much information should a surrogate receive in order to be able to provide informed consent? How many infants, especially those with potential disabilities, can a single parent care for effectively?
Class differences between Poehler and Fey’s characters drive the entire plot of Baby Mama, but it’s no joke in real life. Most surrogates earn just above the poverty line. Forty percent are unemployed aside from their work as surrogates, receive financial assistance, or both. The Newsweek article quotes one surrogate as saying, “Poor or desperate women wouldn’t qualify [with surrogacy agencies],” but the same piece notes that most military wives who become surrogates “can earn more with one pregnancy than their husbands’ annual base pay.”
When Fey balks at Sigourney Weaver’s comparison of surrogacy to outsourcing, Weaver assures her that a surrogate is just like a nanny who cares for your child before it’s born (and not, apparently, like the exploited factory worker Fey seems to have conjured in her head). But the reality is, Americans are increasingly hiring surrogates in developing nations, where the discounted cost still represents as much as 20 times the minimum wage in the surrogate’s home country.
As with other assisted reproductive technologies, surrogacy provides people with previously unavailable opportunities to have genetically related children. And many surrogates find the experience to be both honorable and personally rewarding. But before this option becomes more popular, we as a society need to do some serious thinking about how to ensure the health and dignity of everyone involved in 21st-century baby-making.
Jessica Arons is the Director of the Women’s Health & Rights Program at the Center for American Progress and the author of Future Choices: Assisted Reproductive Technologies and the Law.