Feminism and Surrogacy
A core belief of any feminist, is that a woman has the right to full bodily autonomy. That includes reproductive autonomy; the right to determine if and when she has children, how many, and the right to make decisions about her fertility and reproduction. I am unashamedly a feminist; I am not perfect but I aim to be intersectional in my feminism. My journey to feminism began when I was a child, but was not crystallised until I became a mother to two boy children, and I later worked at an aboriginal organisation. I was confronted with my privilege as a white person, and the oppression I experience as a woman, and reflected on the different experiences my two white sons were likely to have in their lifetimes.
So it never occurred to me that being a surrogate, or an egg donor, could be criticised in feminist circles. As far as I was concerned, I exercised my bodily autonomy to assist people with the donation of my eggs, and as a surrogate. The decision was discussed with my partner – not because he could tell me what to do, but because we are a team and it was a team decision. I liken the decision of becoming an egg donor to that of breastfeeding our children – my body, my choice. The idea that anyone could tell me what I could do with my body, or my genes for that matter, is offensive to me. I also felt that, as a privileged woman with good fertility and health, I could help to ‘level the playing field’ for someone without my privilege. This might have influenced my decision to carry for a gay couple in the middle of the marriage equality debate in Australia. Certainly, I have felt very lucky to have been able to make reproductive decisions without many barriers, unlike many gay men and women suffering infertility.
But as it turns out, some people who claim to be feminists, are highly critical of all forms of surrogacy. I’ve met some of them, in person and online, and considered their arguments and reflected on my own experience as a surrogate, and as a surrogacy lawyer. Whilst I don’t agree with much of the criticism, I have reflected on how I can help promote best practice surrogacy in Australia, and educate people to make empowered decisions about overseas surrogacy.
Bodily autonomy is a key tenet in altruistic surrogacy arrangements in Australia, and is one very strong reason why we do not have commercial surrogacy in this country. But critics of surrogacy are often against all types of surrogacy, including altruistic. Noting that feminists are not one homogeneous group, the criticisms of surrogacy can be summarised as follows:
- That surrogacy is akin to child trafficking, or ‘baby selling.’
This criticism might be leveled at commercial surrogacy, which involves fees and contracts and the end result is a baby being handed over. Arguably, the criticism can also be directed altruistic surrogacy; the fact that no money changes hands does not alter the fact that a baby is being handed over. In Australia, however, the child’s rights are paramount. If a surrogacy arrangement goes wrong, it is not enforceable; the child’s rights will be considered paramount when determining who should be responsible for them and where they should live. It is not possible to have a contract on a child in Australia. And whilst not perfect, the counselling and legal processes surrounding altruistic surrogacy demand that the parties consider the rights and interests of any child born through the arrangement.
- That surrogacy contracts are oppressive and deny a woman her right to bodily autonomy.
Some critics liken surrogacy to prostitution, in that it involves the commodification of a surrogate’s body for someone else’s purposes. Critics claim that surrogacy is exactly as it is portrayed in The Handmaid’s Tale: sexual and reproductive servitude for women. Again, some of this criticism might be leveled at commercial surrogacy and particularly in circumstances where surrogates live in poverty and are contracted as surrogates, precisely because of the financial gain they will make for them and their families. Some of the contracts in those arrangements are offensive – including clauses that suggest that she won’t get paid if she miscarries, and even that she has to reimburse the intended parents in those circumstances. Control of the surrogate’s body and autonomy includes clauses that restrict her movements and require her to adhere to strict living conditions. To be fair, those scenarios are less likely in developed countries such as the US and Canada.
In Australia, where there is no fee or payment in exchange for a baby, the surrogate maintains her bodily autonomy. There might be agreements between the parties about the surrogate’s conduct and lifestyle, such as that she will not drink alcohol during pregnancy, but it is not enforceable. One thing that I emphasise to clients entering into surrogacy arrangements in Australia, is that the surrogate can determine the care she receives during pregnancy, and she can consent or withhold consent to any treatment, including termination of the pregnancy.
As for the argument that surrogacy is like prostitution – again, I say that women have a right to determine what they do with their bodies, and this includes surrogacy and sex work. Whilst some people are offended by the comparison of surrogacy to sex work, I say: so what? Empowered women making empowered choices that are right for them. If we are really worried about the exploitation of women (as surrogates or sex workers) then we should be focused on regulating the industries and supporting all women to make informed and empowered choices for themselves. Stigmatising, or criminalising sex work or surrogacy, does not safeguard women’s rights.
- There is no right to a child; people who are unable to conceive or carry a child themselves must reconcile themselves to being child-free.
Whilst this may surprise many people, I agree with the critics in part on this issue. There is no right to a child. We are socialised from an early age to believe that when we grow up, we should find a partner, settle down and have children. Most people don’t spend time considering this in depth, nor consider whether having children is something they really want. There’s a multitude of reasons why we shouldn’t have children, or many children, and plenty of ways to live a happy and fulfilled life without children. I believe we should be offering everyone the opportunity to determine whether having children is the right decision for them – that means changing how we view women who are child-free, and not promoting the nuclear family as the ultimate in achievement.
Whilst I don’t believe anyone is entitled to a child, I still carried for a couple who wanted one. Because I maintain that I have the right to bodily autonomy and reproductive autonomy, and the rights of the child were maintained as paramount. The baby I birthed is well-looked after, loved and cared for, and we as a society have generally accepted that children can be raised by two dads without any detriment to their well-being. My main focus, and that of her parents, is always for her well-being and her sense of self. She will always have a relationship with me, and my children, and I will support her interests by being available to her when and if she needs.
- The erasure of the mother.
This criticism is focused on the idea that only the birthing woman can fill the role of mother. Science shows that there are primal connections between a woman and the baby she carried – and as someone who gave a baby to another couple, I can attest to this being true. I feel a primal connection with the baby I carried, and partly that’s because we share genetics and she looks like me and my family members. I can, however, also confirm that carrying and birthing her did not give me any primal need to be with her or to parent her. She was conceived with the intention of her being cared for and raised by her dads, and I felt 100% happy and satisfied doing this.
Some critics of surrogacy say that the Birth Certificate does not include the birth mother’s details and that this ‘erases’ her from the child’s history. This is another criticism that I’m willing to accept, at least in part. Current process in Australia is that the original Birth Certificate lists the surrogate and her partner as the birth parents. Once the Parentage Order is made, a new Birth Certificate is issued with the intended parents listed as parents. Most surrogates feel uncomfortable being on the Birth Certificate, even for a short while, for a child they do not consider is their child. But then, is there any reason why a Birth Certificate cannot list more than just the parents? Would it not be in the child’s best interests to have their birth parents, any donors, and the intended parents listed on their Birth Certificate? The removal of the surrogate can feel erasing – of the true history of the birth, genetics, and of the surrogate herself. Why does a Birth Certificate list two dads, as if there was no woman involved in the conception, pregnancy and birth? If the critics believe it is erasure, can we not find a better way to recognise the surrogate and acknowledge the intended parents? John Pascoe (former Chief Judge of the Family Court) elaborated on this idea in the 2016 Louis Waller Lecture on the rights of the child to know their history.
Cancelling the critics
Look, the fact is that we may never be able to reconcile criticisms of surrogacy with the reasons why we do it. I recognise that they will never convince me that all surrogacy is evil, and I will never convince them of how amazing it can be. My version of feminism seeks to empower women to make empowered decisions, and anyone that seeks to deny this right is not a feminist in my book.
I am aware that several critics of surrogacy rely on anecdotal evidence of a few women who had poor surrogacy experiences. It would be fantasy to assume that all surrogacy is good and all outcomes are positive. It is disappointing that a few stories should serve to promote the abolition of surrogacy all together, or to bolster the opinions of those who claim we are all being exploited. I am not looking at surrogacy through rose-coloured glasses; I know that most surrogacy is imperfect, and that we can all do more to make it better. The rights of the child should be at the forefront of our minds, and surrogates must maintain bodily autonomy if we are to protect the integrity of altruistic arrangements. People should recognise that no one is entitled to a child, no matter the hardships they’ve confronted – it’s not fair, but having a baby is not a right. And ultimately, it is the right of every woman to determine whether she carries a baby for someone else, and we should provide an appropriate framework to ensure her rights are protected. Abolishing surrogacy is not the answer; regulation is the key.
I presented at the Melbourne University Law School’s Health Law and Ethics Seminar in 2019, and you can read my speech: Surrogacy as Motherhood: The Inalienable Right to Choose. You can also read my thoughts on best practice surrogacy and how we can make sure we promote the interests and rights of surrogates and children.