The call to better regulate surrogacy highlights the need to reduce possibilities for exploitation and other harms. Jessica Allen’s experience as a surrogate reminds me that surrogacy will always be unpredictable. Yes, we need better regulation (in Canada and elsewhere). But surrogacy won’t be simple.
Superfetation, a rare occurrence in human pregnancy
On October 25, the New York Post reported about a surrogacy that went wrong in an unexpected way: Allen conceived while gestating an embryo for another couple. For the duration of the surrogacy, everyone assumed that the implanted embryo had split in two. What occurred instead was superfetation, where two embryos separately gestate. Usually the embryos result from different menstrual cycles. In Allen’s case, one embryo was implanted from the commissioning parents (the Lius), and the other was conceived with her partner.
Expected anxieties
Allen’s story exhibits anxieties with surrogacy that we have come to expect. For example, Allen reports that she was denied a chance to see the children after delivery (by cesarean section). This denial violated her her contract, which allowed her an hour for visitation. For another example, the Lius decided they didn’t want the child genetically related to Allen and her partner. The child that was “theirs” had their genes. This attitude exemplifies the devaluing of gestation as an identity-conferring relationship, despite fluid boundaries between pregnant person and fetus during gestation. Bioethicist Angel Petropanagos has termed the favouring of genetic material as geneticism.
Revealed anxieties about managing surrogacy
The Allen-Liu case reveals problems with the bureaucracy that often accompanies assisted reproduction, especially in commercial arrangements facilitated by agencies. Surrogates and children become objects to be managed. At the same time, surrogates are expected to bear the burdens of risk when pregnancy takes an unexpected turn.
Example 1: The surrogate bears financial risks for “mistakes”
The Lius sought compensation from Omega Family Global, the surrogacy agency, for the “mistake” in thinking that the second embryo was “theirs.” Doctors had not informed Allen or the Lius that the embryos were developing in separate sacs.
The Lius took home two babies that were supposed to be identical twins. Because one baby did not look like them, they sought a genetic test. The Lius asked Omega Family Global for $18,000-22,000, which (from Allen’s claims) the surrogacy agency tried to seek from her. Allen was contracted to earn $30,000 from the surrogacy, and she received a $5,000 top-up for gestating two embryos.
I don’t have the expertise to comment on the legitimacy–legal, moral, or otherwise–of the Lius ask for compensation. Rather, I am interested in what their seeking compensation reveals about how Allen and her role as a gestational laborer are valued. If there was a mistake, it was the agency’s or clinic’s. Allen followed the IVF doctor’s advice, and the terms of her contract, as to when and how she could engage in sexual activity with her partner. Yet she is being cast as bearing the financial burden of liability.
As I argue in my most recent publication, “Hannah Arendt and Pregnancy in the Public Sphere,” reproduction is inherently unpredictable. As much as we subject reproduction to human control, we can never predict fully the outcome. What I had in mind was the identity of the child and concerns around selecting embryos, but the Allen’s story makes the case for my claim too. Further, the push to make her liable speaks to the increasing force of a neoliberal depiction of a surrogate who is an independent contractor who assumes all the risks of contracting out her labor/body.
Example 2: Babies in limbo, babies as commodities
Allen and her partner faced difficult getting “their son” back. Based on my reading, Allen would have wanted the child with her genetic material back regardless of whether the Lius wanted to keep him. But in this case, the child was a ward (or sorts) of the surrogacy firm. The Lius, the legal parents, refused to take responsibility for him.
Here is a comment from Allen:
“I told the agency in no uncertain terms, ‘We want our son,’ but we would still be responsible for the bill if we kept him. It was like Max [now named Malachi] was a commodity and we were paying to adopt our own flesh and blood. A caseworker from the agency also said we owed her a further $7,000 for expenses she had incurred for the bureaucracy and for looking after our son.”
For the moment, I will put questions about ownership and genetics aside. Malachi didn’t have “features” wanted by the Lius and was thus discarded. Omega Family Global treated him as an unwanted byproduct of an otherwise successful surrogacy. This byproduct needed to be off-loaded, while also recuperating costs.
The here problem isn’t commercialization
While commodification is a problem, I don’t think that the main issue in this case is commercialization. There’s a lot of complexity, especially around the privileging of genetic ties and around legal parenthood. I want to highlight an underlying problem that this case reveals: Human beings as entities that are subject to managerial control.
The risk of treating surrogates as objects to be managed exists whether surrogacy is paid or not. I support more government oversight of surrogacy in Canada, but regulatory frameworks should not treat surrogates or children as abstract objects to be managed. Stricter contracts, even if provisions aren’t enforceable (i.e., if surrogates agree to abstain from penetrative heterosexual activity), won’t solve the problem.
Better legal arrangements and administrative structures are only part of the solution to avoiding cases like Allen’s. No matter how well-crafted (and supportive) surrogacy regulations may be, pregnancy is unpredictable. Surrogacy involves unpredictable biological processes. It also creates fragile relationships whose shape cannot be determined, though relationships can be fostered or undermined. We need to center relationships between unique subjects in our analyses and regulation of surrogacy, not the bureaucratic management of abstract participants.
Transparency, accountability, health and well-being, and minimizing risks of harm can be goals of ethical regulation. We can better regulate surrogacy, but it will never be a simple endeavor.