A Book Review

Surrogacy: A Human Rights Violation by Renate Klein

“Surrogacy,” author and activist Dr. Renate Klein writes in her new book Surrogacy: A Human Rights Violation, “is the commissioning/buying/renting of a woman into whose womb an embryo is inserted and who thus becomes a ‘breeder’ for a third party.” The transaction typically involves “commissioning” or “intended” parents; paid “donors” of biological reproductive material;  compensatedgestational carriers;” IVF medical professionals (including doctors, care staff and technicians); pharmacists and fertility drug specialists, as well as lawyers, surrogacy agency personnel; surrogacy brokers and intermediaries and judicial personnel, including family court judges.

It’s a complex maze in which the woman who “gestates” the human child remains largely invisible.

Dr. Klein debunks the romanticized “Build Your Family” image marketed by the booming fertility industry and purchasing parents and exposes the dark reality of the women paid to gestate and turn-over human babies. A typical transaction rests on a series of lop-sided contracts, prepared by lawyers working for the purchasing parents and for the medical personnel. These legal documents tether the woman “renting” her womb to “nine months of bondage” during which she is legally subject to the detailed medical, health and physical instructions of third parties.  

As Dr. Klein details, surrogates’s lives are no longer their own: surrogacy contracts typically allow the intended parents and their medical team to control what a “gestational carrier” consumes and does 24 hours a day over the course of the pregnancy. The purchasers retain the authority and rights to schedule and attend appointments and testing, control the surrogates physical and sexual activities, and to demand invasive procedures, including abortion of a fetus. 

Dr. Klein amply supports her argument that surrogacy offers a means-to-a-child only for the educated elite with money to spend. While this complex of service and product extracts enormous amounts of money from purchasing parents, it is highly lucrative only for the professionals, not the women indentured as surrogates. The women hired to gestate and turnover babies tend to come from much lower economic circumstances and most often need money. More, they often lack the education and experience to negotiate effectively, much less read meaningfully, the contracts they are required to sign.

Dr. Klein’s volume exposes the emotional and physical harms this thriving industry hides and denies. The dark reality of surrogacy unfolds in Ms. Klein’s detailing of failed implantation, unwanted and “flawed” fetuses, demands for abortion, abandoned babies and unpaid, ill and suffering womb-renters. Even the most ardent surrogacy proponent would be hard-pressed to disagree with Dr. Klein’s conclusion that “the best way to prevent the harm is not to engage in the practice at all.”  

Yet, Dr. Klein’s historically rich account of the opposition movement left this sympathic reader wanting more. The author dates resistance to surrogacy to the 1984 publication of Test-Tube Women: What Future for Motherhood, a collection of 33 essays reflecting on “urgent” reproductive issues following the birth of the first test tube baby, Louise Brown, in 1978. Providing an impressive selection of books and conferences, Klein’s Chapter 6 “Resistance – past and present” consumes 50 pages of her compact 180 page book.

With this length and detail, Dr. Klein unintentionally chronicles how little impact the opposition has had on the burgeoning, international, multi-billion dollar fertility business. Notably, she moves from “resistance” to conclusions – there’s no chapter on accomplishments.

 Klein’s focus on “resistance” flows directly from her conviction that only prohibition of surrogacy can protect women and children from the exploitation that inheres in the practice itself. She argues in Chapter 3 that surrogacy is unethical – but,with respect to the gestating mothers, offers in support only scattered quotations from Andrea Dworkin and a singular reference to “an ethical framework that is based on striving for global human dignity and human rights that are based on a do-no-harm philosophy to your fellow human beings.”

Dr. Klein is passionately clear on why surrogacy offends her personal ethical paradigm, which she links to that of other radical feminists struggling against patriarchal, misogynous, capitalist structures. However, Dr. Klein does not identify or offer a more general ethical context upon which to anchor and build surrogacy opposition. (She does more so with respect to children born from gestational surrogacy and other fertility innovations where she references UN statements regarding the rights of children.)

Dr. Klein’s analogy to slavery does not help. Voluntary surrogate mothers, often with some limited protections from state laws, do not suffer the abuse, exploitation and dehumanization of the human slave. The antislavery movement galvanized an international consensus against human slavery upon the Judeo-Christian ethic that a human being may never be chattel, counted among the financial assets of the slave’s owner. While surrogate mothers are often confined and very poorly treated, their situation is more akin to the plights of sex workers who, like surrogates, monetize sought after aspects of the female human body.

 Dr. Klein’s alternate analogy fits better: the similarity between reproductive surrogacy and sexual prostitution. Unlike slavery, both surrogacy and prostitution enjoy support from a broad range of communities. While a correct Judeo-Christian ethic would oppose these forms of female objectification, no consensus has emerged, especially in partnership with secular sources, that either should be fully prohibited. To the contrary, famous celebrities and politicians have all purchased children through surrogacy with little or no criticism.

Sadly, as Dr. Klein reports, despite some isolated surrogacy prohibitions in limited geographical areas, we find ourselves in boom times for surrogacy, enriching the matrix of agents who actively manipulate public opinion. In its current partnership with child-seeking gay male couples, the fertility/surrogacy industry plays upon human longing for children with promises of problem-free family building.  The plight of the impoverished and exploited surrogates is neither documented, studied, acknowledged oraddressed. Even jurisdictions solidly opposed to surrogacy in past years, are showing significant shifts in public opinion toward favoring surrogacy, at least in some circumstances

Notably, Dr. Klein’s objections focus on the prevailing surrogacy arrangement, involving a human mother to achieve a human birth and turnover. Klein acknowledges that the industry seeks a more efficient gestational option and has high hopes that artificial wombs will replace the human female surrogate.  

While I am sure that Dr. Klein and other surrogacy critics do and will oppose gestation of the human child by non-human means, I am less sure that, without a broad ethical framework, they can offer morally compelling opposition. The arguments upon which they have relied for nearly 50 years have not succeeded in the prohibition they seek; such arguments will have limited, if any, application to non-human gestation.

Let me note here that I do not disagree with Dr. Klein and the other critics – I believe that surrogacy should be illegal and I recommend her book without qualification for a compelling history of the opposition movement.  I was an original supporter of and signatory to ‘Stop Surrogacy Now’ and, like Dr. Klein, acknowledge the tireless contribution of Jennifer Lahl and the Center for Bioethics and Culture in forming, organizing and mobilizing this coalition.

 Yet, Dr. Klein’s book, the limited achievements of Stop Surrogacy Now and the fast-paced development of reproductive technologies cry out for a broader, far-reaching, cross-technological and ethical foundation upon which we can discuss not just the injustices of surrogacy, but the commercializing and dehumanizing of human reproduction and birth, developments which “affect our very humanity” as bioethics expert Leon Kass would say. Just what, we must decide, makes human reproduction essentially human

We’ve answered this question throughout human history upon an ethic of male-female love: creating a biological, sexual joinder, resulting in the natural conception of a child interior to the female lover’s body, resulting in the natural transition of the male to father and female to mother, as parents known to and knowable by the human child.

The female human body, as Dr. Klein discusses in the context of gestational surrogacy, is gifted with hormonal psycho-physical mechanisms which infuse reproduction with the emotions that create deeply human bonds. The child is born into a total physical dependency on the woman with whom he has bonded and relies, a woman with whom he has exchanged cells and has come to know intimately during gestation.  

 With surrogacy, egg extraction, embryo creation and implantation, genetic testing and engineering, for example, the love model of human reproduction is rapidly being replaced with commercial production of human offspring. We can literally build a child from component parts with biologically correct environments; and the technologies for adding detail and preference and option advance each day. All of the deeply human mechanisms of the female body for creating a human child in the context of human bonding are being eliminated by technology and legal contract.

At some point in this process, the human child becomes a manufactured product; the gestational womb, a rental space; the child’s genetic makeup, an exercise in priced selection. Dr. Klein’s focus on the surrogacy component recognizes that something has gone so far amiss that for the surrogate mother and the child she births and turns over pursuant to the terms of a commercial contract, reproduction becomes dehumanizing by ignoring and even denying the very processes which make a birth essentially human. 

Dr. Klein is absolutely right that regulation of surrogacy will not and cannot restore the humanity to the reproduction process. But both surrogate mothers and the children they gestate and sell are entitled to process whichrecognizes, honors and retains as far as possible that which makes and keeps reproduction essentially human.

 As Dr. Klein’s book demonstrates, we need an articulated ethic from which the Rights of a Human Birthing Mother and the Rights of a Human Child by Contract can emerge to preserve the essential humanity of human reproduction.  A human female reproductive ethic must set a standard to which ALL substitute, commercialized forms of human reproduction must conform.  Let our procedures and reproductive technologies be defined by our essential humanity, not become the tools by which our humanity is dismantled.