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Posted in: Motherhood & Custody, Feminism

Published on Feb 22, 2019 by Phyllis Chesler and Susan L. Bender

Written for New York Law Journal

Handmaids for Hire: Should Commercial Surrogacy Be Legalized in NYS?

Surrogacy has now become a way of slicing and dicing biological motherhood into three parts.


In April, the New York State Assembly will vote on a Budget Bill which includes “The Child-Parent Security Act” (A.6959A/S.17A). This is quite an Orwellian title for legalizing surrogacy in New York state.

More than 30 years ago, Chesler viewed the rise of commercial surrogacy with fear and trembling. She immediately saw this as a new kind of custody battle, one that pitted wealthy people against impoverished global women, often of color. Chesler published a book about custody battles—Mothers on Trial: The Battle for Children and Custody—and a book about surrogacy—Sacred Bond: The Legacy of Baby M.

In 1987, Chesler organized demonstrations outside the courthouse in the case of Baby M. Her mother, Mary Beth Whitehead, who chose not to give her up, was breast-feeding the newborn when a court order sent armed officers to remove the baby. At that point, Chesler began to work with Harold Cassidy, the lawyer who represented Whitehead. Cassidy persuaded the New Jersey Supreme Court to ban surrogacy in that state.

To be clear: We do not oppose surrogacy arrangements between friends or relatives in which no money changes hands.

However, commercial surrogacy is baby selling, baby buying, reproductive prostitution, and the commodification of women. It is also matricidal.

Surrogacy has now become a way of slicing and dicing biological motherhood into three parts: an egg donor, who undergoes painful and dangerous IVF procedures; a “gestational” mother who faces all the risks of pregnancy and childbirth; and an adoptive mother or father. This vivisection of motherhood makes it impossible for a birthmother to win custody for any reason. Only the purchasing sperm donor has a genetic and legally enforceable relationship to the child. His partner is the odd person out in terms of the child’s genetic makeup, traits, and appearance.

The mere donation of sperm which may take no more than five minutes to produce trumps the painful, often risky, and time-consuming donation of eggs and the nine months of pregnancy and childbirth.

This is not how New York’s “Protecting Modern Families Coalition” sees it. This group includes the Academy for Adoption and Assisted Reproduction Attorneys, Society for Reproductive Medicine, Equality New York, Human Rights Campaign, Lambda Legal, the Lesbian, Gay, Bisexual and Transgender Community Center of New York City, the National Infertility Association, and the Auburn Theological Seminary. Thus, profit-driven attorneys and physicians, infertility and gay groups, including Men Having Babies have been lobbying the NYS Legislature for many years to legalize surrogacy.

Some feminists also support legalizing surrogacy because they believe that a woman’s right to an abortion is somehow dependent upon her right to sell a baby; that renting one’s orifices for a buyer’s sexual pleasure is like any other job and is not dangerous to the seller’s physical and mental health; that selling the fruit of one’s womb is an ordinary commercial transaction; and that there are no harmful consequences for the baby who has been conceived for the purpose of being adopted.

New York state is now intent on legalizing surrogacy because Third World and European countrieshave increasingly banned commercial surrogacy and the practice has been condemned by both the European Parliament and the United Nations. Foreigners are no longer allowed to hire a surrogate in Mexico, Thailand, India, etc. Crackdowns on human trafficking in terms of surrogacy have taken place in the Philippines and Cambodia.

This Bill, as written, would turn New York state into a site for reproductive trafficking.

Why not adopt children who are in need of families?

True, adoption poses challenges: Adopted children often suffer from psychiatric problems more than their non-adopted counterparts. Adoptive parents are carefully investigated by agencies.

In the past, gay individuals and couples were rejected as adoptive parents. This is no longer true. Today, the Spence-Chapin Adoption Agency in New York City offers gay male and female individuals and gay couples the right to adopt newborns or infants no older than eight weeks but who are probably “black and Hispanic.” Why is this option not being exercised?

Genetic narcissism, racism, and a desire not to be investigated are possible answers.

Some people only want children who share their genes. Many potential parents do not want a child with African features. Another reason for “designer” gene babies: Even newborns may suffer from fetal alcohol syndrome, AIDS, and genetically inherited medical disorders. In addition, we have outlawed the buying and selling of human beings. Legalizing surrogacy means that a purchaser can buy a child.

To some extent, the egg donor is vetted; many people choose white, blonde, “pretty” girls with blue eyes. Is the purchaser vetted? Not really. He can be a pimp, a pedophile, a sociopath, or a busy celebrity who will hand the child off to a servant. Like some biological parents, the purchaser can also be an unfit parent.

In one recent California case (CM v. MC) the buyer was a middle-aged single man who is deaf, does not speak (is non-verbal), and still lives in the basement of his ailing, aging parents’ home.

A woman has the right to an abortion or the right to refuse one—except if she is bound by a surrogacy contract in which the purchaser makes this decision, not the woman.

Cassidy told us that this purchaser did not want triplets and demanded one or perhaps two “reduction” abortions. The gestational mother refused and stopped taking money.

Nevertheless, she was never allowed to see the boys, born prematurely. A guard was stationed outside their hospital room. She was prevented from donating breast milk to them. She has heard nothing about them ever since.

According to Cassidy, the purchaser “said he did not know how to feed or diaper his triplets. The hospital made him take parenting classes for a week, and still did not release them. Instead, it flew three nurses to Georgia to transport the children. He was not ready for them. The nurses stayed and set up a nursery. The head nurse called children’s services. Georgia investigated, but did not remove them. His sister signed an affidavit that he abused and neglected the babies and that he has a history of mental issues.”

Despite a spirited appeal launched by Harold Cassidy in the California Supreme Court and in the U.S. Supreme Court which declined to hear the case.

Chesler also organized a feminist amicus brief in this case signed by Merle Hoffman, Dr. Donna Hughes, Dr. Sheila Jeffreys, Dr. Renate Klein, and Dr. Barbara Katz Rothman, among others. The case against commercial surrogacy as harmful and exploitative to women and children is discussed.

This is only one case. There are more such disasters. And yes, there are also some “successful” stories about baby buying. This still does not make such commerce ethical.

If commercial surrogacy is not exploitation of the poor—then why do wealthy women never serve as gestational mothers for poor and infertile women who could never afford her “services”? Surrogates are always poor women who have few economic options.

In Mary Beth Whitehead’s day, surrogates were paid $10,000 plus medical expenses. Today, they are paid between $30,000 to $40,000 with $5,000 more for each extra baby. Implantations may not work immediately. Thus, this sum comes to $3,300 a month for “work” performed 24/7 for a 12-month period. This amounts to an hourly fee of about $4.57. The lawyers and doctors make a thousand times more in this same time period.

However, we are not suggesting that paying a higher fee for baby selling would render this human rights violation acceptable.

Even if every purchaser of surrogacy is a good person, they are buying the bodies of an impoverished woman—a Margaret Atwood-style Handmaid.

None of the parties know whether this arrangement is harmful to the children who are being conceived in order to be adopted.

No one can predict whether the gestational breeder will develop a life-threatening illness or will remain forever haunted by the child she bore and gave away.

Susan L. Bender is the former President of the Women’s Bar Association of the State of New York, and a member of the Academy of Matrimonial Lawyers. She has served on Bar Association Committees which have reviewed this issue. Phyllis Chesler is Emerita Professor of Psychology and the author of 18 books including “Women and Madness” and most recently “A Politically Incorrect Feminist.” She is a co-founder of the Association for Women in Psychology and the National Women’s Health Network.


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