Mediating intimacy: Black surrogate mothers and the law

Critical Inquiry

Volumn 24, Issue 2, 1998, Pages 525-545

  Grayson, Deborah R ^a  

^a GEORGIA INSTITUTE OF TECHNOLOGY   (United States)

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[No Author keywords available]

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EID: 19744369271     PISSN: 00931896     EISSN: None     Source Type: Journal    
DOI: 10.1086/448883     Document Type: Article

References (79)

1. See Anita Allen, "The Black Surrogate Mother," Harvard Blackletler Journal 8 (1991): 17-31
2. For various accounts of the events in the case as they were reported in the media, see, for example, Andrea Sachs, "And Baby Makes Four: A New Custody Battle Intensifies the Debate over Surrogacy," Time, 27 Aug. 1990, p. 53
3. Susan Tifft, "It's All in the (Parental) Genes: A California Court Rules That Bearing a Child Is Not Motherhood," Time, 5 Nov. 1990, p. 77
4. Scott Armstrong, "California Surrogacy Case Raises New Questions about Parenthood: Mother Seeks Custody, but Has No Genetic Link to the Child," Christian Science Monitor, 25 Sept. 1990, p. 1
5. Dan Chu, Nancy Matsumoto, and Lorenzo Benet, "A Judge Ends a Wrenching Surrogacy Dispute, Ruling That Three Parents for One Baby Is One Too Many," People, 5 Nov. 1990, pp. 143-44
6. Mark Kasindorf, "And Baby Makes Four: Johnson v. Calvert Illustrates Just about Everything That Can Go Wrong in Surrogate Births," Los Angeles Times Magazine, 20 Jan. 1991, pp. 10-34
7. See Kennard's dissenting comments in Johnson v. Calvert, 19 Cal. Rptr.2d, 506-18 (Cal. 1993); cert, denied, 114 S.Ct 206 (1993)
8. On this subject, see Nancy D. Polikoff, "This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian Mother and Other Non-Traditional Families," Georgia Law Review 78 (1990): 468-73
9. On this issue, see, for example, Andrea E. Stumpf, "Redefining Mother: A Legal Matrix for New Reproductive Technologies," Yale Law Journal 96 (Nov. 1986): 187-208
10. Katha Pollitt, "When Is a Mother Not a Mother?" The Nation, 31 Dec. 1990, p. 825
11. and Lisa Sowle Cahill, "The Ethics of Surrogate Motherhood: Biology, Freedom, and Moral Obligation," Law, Medicine, and Health Care 16 (Spring 1988): 65-71
12. Sarah Franklin, "Postmodern Procreation: A Cultural Account of Assisted Reproduction," in Conceiving the New World Order: The Global Politics of Reproduction, ed. Faye D. Ginsburg and Rayna Rapp (Berkeley, 1995), p. 336
13. See also part 1 of a four-part series on infertility published in the New York Times. This article on high-tech pregnancies and the fertility market focuses on clinics and hospitals with specialties in in vitro fertilizations (IVF). This branch of medicine is reported to be part of a "virtually free-market branch of medicine" that is a "$350 million-a-year business." The article describes mostly affluent couples paying upwards of $25,000 or more for procedures, usually IVF, to assist them in conception. Very few insurance companies cover IVF, making most of the financial burden fall on the couples themselves. Prices for the procedure described in the article include a §2,000 to $3,000 fee for egg donors for those women who are unable to produce their own eggs to a median cost of $7,800 for one procedure of IVF that lasts about the length of a menstrual cycle. Since most couples are not successful on the first try, many couples end up trying three to four more times before giving up. See Trip Gabriel, "High-Tech Pregnancies Test Hope's Limit," New York Times, 7 Jan. 1996, p. Al
14. Valerie Hartouni, "Breached Birth: Reflections on Race, Gender, and Reproductive Discourse in the 1980s," Configurations 1 (1994): 73-88; hereafter abbreviated "BB."
15. On this point, see Laura Doyle, Bordering on the Body: The Racial Matrix of Modem Fiction and Culture (New York, 1994), pp. 10-34
16. DaHene Clark Hine, "Rape and the Inner Lives of Black Women in the Middle West: Preliminary Thoughts on the Culture of Dissemblance," Signs 14 (Summer 1989): 915
17. George Annas notes, for instance, that the women who bear the children in surrogate arrangements are often "lower-middle-class and lower-class" women (George Annas, "Fairy Tales Surrogate Mothers Tell," Law, Medicine, and Health Care 16 [Spring 1988]: 27). Statistics from the congressional Office of Technology Assessment survey, Infertility: Medical and Social Choices, in fact demonstrate that surrogate mothers tend to be less educated and less financially secure than those who hire them. Only a small percentage of the women waiting to be hired as surrogates have ever attended college, and a large percentage of these women earn less than $30,000 annually.
18. See Office of Technology Assessment, Infertility-Medical and Social Choices (Washington, D.C., 1988)
19. Emily Martin, for example, makes clear in her analysis how frequently women see themselves as separate from their bodies. Among the women she interviewed Martin describes a "fair amount of fragmentation and alienation in women's general conceptions of body and self" of which they "do not seem aware" (Emily Martin, The Woman in the Body: A Cultural Analysis of Reproduction [Boston, 1992], p. 89)
20. See, for instance, Susan Bordo, Unbearable Weight: Feminism, Western Culture, and the Body (Berkeley, 1993)
21. Karen Newman, Fetal Positions: Individualism, Science, Visuality (Stanford, Calif., 1996)
22. Barbara Duden, Disembodying Women: Perspectives on Pregnancy and the Unborn (Cambridge, Mass., 1993)
23. Hartouni, "Fetal Exposures: Abortion Politics and the Optics of Allusion," Camera Obscura 29 (1992): 130-49
24. quot;California Judge Speaks on Issue of Surrogacy," National Law Journal, 5 Nov. 1990, p. 37
25. Legal scholar Randy Frances Kandel argues that in the first two rulings on Johnson v. Calvert by the superior court and the court of appeal, the judges "put the cart before the horse" (Randy Frances Kandel, "Which Came First: The Mother or the Egg? A Kinship Solution to Gestational Surrogacy," Rutgers Law Review 47 [Fall 1994]: 174; hereafter abbreviated "WC"). Kandel argues that in both rulings the courts attempted to resolve the prior issue of whether Crispina Calvert or Anna Johnson or both women could be the natural mothers by first resolving the second issue of whether it was in the best interests of the child for both mothers (assuming the child had two mothers) to have custody rights
26. Dorothy Nelkin and M. Susan Lindee, The DNA Mystique: The Gene as a Cultural Icon (New York, 1995), p. 41
27. See Nelkin, "After Dauben: The Relevance and Reliability of Genetic Information," Cardew Law Review 15 (1994): 2119-28. In this article, Nelkin questions the reliability of court testimony that utilizes genetic evidence. She argues that testimony in the area of genetics should be more closely examined because of its growing appeal in court cases and its impact on legal decision making
28. In fact, as Kandel, Nelkin, and Rochelle Cooper Dreyfus have pointed out, the courts could have used the "best interests of the child" theory to settle the custody dispute in Johnson v. Calvert. This ruling would have been in line with the court's attempts to maintain the traditional nuclear family that Crispina and Mark Calvert seemed to be able to provide. The courts could have also determined that Johnson had waived all parental rights to the child when she signed the surrogate contract. The question, as Kandel so aptly puts it, is, "Why, then, did the courts feel compelled to resolve the 'natural' parent issue using the [Uniform Parentage] Act?" ("WC," p. 178)
29. See also Rochelle Cooper Dreyfus and Nelkin, "The Jurisprudence of Genetics," Vanderbilt Law Review 45 (Mar. 1992): 313-48
30. See Nelkin, "After Daubert," p. 2121
31. Quoted in Janet L. Dolgin, 'Just a Gene: Judicial Assumptions about Parenthood," UCLA Law Review 40 (Feb. 1993): 685
32. Marilyn Strathern, "Displacing Knowledge: Technology and the Consequences for Kinship," in Conceiving the New World Order, p. 356; hereafter abbreviated "DK." See also Strathern, Reproducing the Future: Essays on Anthropology, Kinship, and the Kew Reproductive Technologies (New York, 1992). In tension with the emphasis on genes as indicators of parenthood is the language in many surrogate contracts that stipulates that gestational mothers must refrain from smoking, drinking, or engaging in any other activities that might endanger the fetus. Gestational mothers are also frequently required to agree to follow all doctors' orders, including those that force them to submit to invasive procedures or to curtail their normal physical activities. All of these strictures seem to suggest an awareness of how the environment of the birth mother's body is interconnected with the fetus
33. For a more detailed analysis of the rule of intent, see Marjorie Maguire Shultz, "Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality," Wisconsin Law Review, no. 2 (1990): 297-398. For a discussion of the rule of intent as it pertains specifically to Johnson v. Calvert, see Johnson v. Calvert
34. Doyle, Bordering on the Body, p. 21
35. On this issue, Elizabeth Spelman's discussion of people of color and white women as "mere body" comes to mind. According to Spelman, those individuals defined by these categories are typically closely associated with the body and basic bodily functions-"sex, reproduction, appetite, secretions, and excretions"-and as "given over to attending to the bodily functions of others (feeding, washing, cleaning, doing the 'dirty work')" (Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought [Boston, 1988], p. 127). In Johnson's case, the work of her body includes the "dirty work" of gestation and birthing. For discussions of reproductive freedoms, specifically as they refer to the right to procreate
36. see Larry Gostin, "A Civil Liberties Analysis of Surrogacy Arrangements," Law, Medicine, and Health Care 16 (Spring 1988): 7-17
37. Cristyne Neff, "Woman, Womb, and Bodily Integrity," Yale Journal of Law and Feminism 3 (1991): 327-53
38. Charlotte Rutherford, "Reproductive Freedom and African American Women," Yale Journal of Law and Feminism 4 (1992): 255-84
39. For an excellent analysis of the representation of procreation as analogous to authorship, see Mark Rose, "Mothers and Authors: Johnson v. Calvert and the New Children of Our Imaginations," Critical Inquiry 22 (Summer 1996): 613-33
40. Johnson v. Calvert, p. 514. Legal scholar Anita Allen suggests that one way to respond to this issue is to view surrogate arrangements as unenforceable personal commitments
41. See Allen, "Privacy, Surrogacy and the Baby M Case," Georgetown Law Journal 76 (1988): 1759-92
42. In one situation a gestational mother gave birth to twins, a boy and a girl. The family, however, was only interested in the girl and left the boy behind. The gestational mother sued and won the right to retain custody of both children. She later ended up on drugs and lost both children. The children were then placed in foster care. In another example, a child was born HIV-positive. Upon learning of the child's HIV status, the contracting parents refused to accept the baby. In this situation, it is clear that thorough preconception medical and psychological screening did not take place. See also R. Alta Charo, "Legislative Approaches to Surrogate Motherhood," Law, Medicine, and Health Care 16 (Spring 1988): 96-112, and Kasindorf, "And Baby Makes Four."
43. To highlight a few recent examples: Through the intentional use of artificial insemination, a lesbian couple became the parents of two children. After the dissolution of their relationship and, ultimately, a custody battle for the children, a court ruled that both women should be denied parental and visitation rights. See "Lesbians Denied Custody after Break-Up," New York Times, 24 Mar. 1991, p. A22, and Bettina Boxall, "Laws Mean Lesbian Custody Battles Often Are One-Sided: Under Rigid Definition of Parenthood, Partner Who Didn't Bear Child Usually Has Little Recourse," Los Angeles Times, 27 Jan. 1997, p. Al. In another instance, Mary Frank Ward, a mother of three, went to court to attempt to get additional child support from her ex-husband for their youngest child. The ex-husband, a convicted felon who had battered and eventually murdered his first wife, sued for custody of the child and won. The court argued that because Ward and her oldest daughter were both lesbians and had live-in lovers, her home was a bad influence for her youngest child. A Florida court of appeal upheld the decision by the lower court. Ward, who eventually gave up her fight for custody of her youngest child, recently died of a heart attack
44. See Mireyz Navarro, "Appeals Court Rebuffs Lesbian in Custody Bid: Child Will Stay with Father Who Killed," New York Times, 31 Aug. 1996, p. A7
45. Robert Scheer, "Warped View of What's Fit as Family Life," Los Angeles Times, 10 Dec. 1996, p. B7
46. and "Lesbian Who Sought Custody Dies," New York Times, 23 Jan. 1997, p. A19
47. While scientists are currently able to construct artificial wombs, so far they have only managed it for animals, not humans. Scientists in Japan have developed a technique called extrauterine fetal incubation (EUF1). Using goat fetuses, the scientists have "threaded catheters through the large vessels in the umbilical cord and supplied the fetuses with oxygenated blood while suspending them in incubators that contain artificial amniotic fluid heated to body temperature." The goat fetuses were able to survive in this environment for three weeks, although team physicians had difficulty with circulatory failure in the experiments, as well as encountering other technological problems. While scientists are quoted as saying that the "ideal situation for the immature fetus is growth within the normal environment of the maternal organisms," they continue to pursue the technology for constructing artificial wombs for humans. Arthur Caplan, the director of the Center for Bioethics at the University of Pennsylvania predicts that "sixty years down the line ..., the total artificial womb will be here," arguing that this procedure is "technologically inevitable" (Perri Klass, "The Artificial Womb Is Born," New York Times Magazine, 29 Sept. 1996, p. 117)
48. In the context of a discussion about surrogacy, to make the link between gender and the body, as Carol Bigwood suggests, need not lead to the determination of the category "woman" or "mother" as a fixed or closed biological identity. Instead, the female body in this instance is a body that is "open, sensate, procreativc"-a body not forced into a pseudomale body(lessness) (Rosalind Pollack Petchesky, "The Body as Property: A Feminist Revision" in Conceiving the New World Order, p. 396)
49. See also Carol Bigwood, "Renaturalizing the Body (With a Little Help from Merleau-Ponty)," Hypatia 6 (Fall 1991): 54-73
50. Kenneth L. Karst, "The Freedom of Intimate Association," Yale Law Journal 89 (1990): 628
51. Eva Saks, "Representing Miscegenation Law," Rarìtan 8 (Fall 1988): 40
52. Even the one so-called ideal black mother figure, the mammy, a selfless nurturer of white children (under the supervision of the white mistress), has been portrayed as "careless and unable to care properly for her own children" (Dorothy E. Roberts, "The Value of Black Mothers' Work," in Critical Race Feminism: A Reader, ed. Adrien Katherine Wing [New York, 1997], p. 313)
53. Wahneema Lubiano, "Black Ladies, Welfare Queens, and State Minstrels: Ideological War by Narrative Means," in Race-ing Justice, Engendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality, ed. Toni Morrison (New York, 1992), p. 339
54. See, for instance, Lisa Ikemoto, "The Code of Perfect Pregnancy: At the Intersection of the Ideology of Motherhood, the Practice of Defaulting to Science, and the Interventionist Mindset of the Law," in Critical Race Theory: The Culling Edge, ed. Richard Delgado (Philadelphia, 1995), pp. 478-97
55. Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (Boston, 1990)
56. Barbara Omolade, The Rising Song of African American Women (New York, 1994)
57. Deborah Gray White, Ar'n't I a Woman? Female Slaves in the Plantation South (New York, 1985)
58. Angela Davis notes, for example, that "in the eyes of the slaveholders" black women were "'breeders'-animals, whose monetary value could be precisely calculated in terms of their ability to multiply their numbers." In addition, according to Davis, since slave women were classified as "breeders" rather than mothers, "their infant children could be sold away from them like calves from cows" (Angela Y. Davis, Women, Race, and Class [New York, 1983], p. 7)
59. Ikemoto, "The Code of Perfect Pregnancy," p. 483
60. Allen provides a very careful analysis of why slavery and surrogacy are not the same thing. See Allen, "Surrogacy, Slavery, and the Ownership of Life," Harvard Journal of Law and Public Policy 13 (Winter 1990): 139-49
61. Norplant, for instance, has been used as a criminal penalty against women of childbearing age who have been convicted of child or drug abuse. In addition, legislation has been proposed in Louisiana and Kentucky, to name just two states, that would offer financial incentives to women on welfare who "voluntarily" agree to use Norplant. Ironically, while access to publicly funded abortions is limited in most states, all but two states, California and Massachusetts, fund Norplant through Medicaid. See, for instance, Deborah Krauss, "Regulating Women's Bodies: The Adverse Effect of Fetal Rights Theory on Childbirth Decisions and Women of Color," Howard Civil Rights-Civil Liberties Law Review 26 (1991): 523-48
62. Martha A. Field, "Controlling the Woman to Protect the Fetus," Law, Medicine, and Health Care 17 (Summer 1989): 115-29
63. Lawrence J. Nelson, Brian Buggy, and Carol Weil, "Forced Medical Treatment of Pregnant Women: 'Compelling Each to Live as Seems Good to the Rest,'" Hastings Law Journal 37 (May 1986): 703-63
64. Veronika E. B. Kolder et al., "Court-Ordered Obstetrical Interventions," New England Journal of Medicine, 7 May 1987, pp. 1192-96
65. Nancy K. Rhoden, "The Judge in the Delivery Room: The Emergence of Court-Ordered Cesareans," California Law Review 74 (1986): 1951-2030
66. Attorney Deborah Krauss notes that in instances where the pregnant women is a "member of a racial minority or disadvantaged economic group," physicians are more likely to obtain court-ordered obstetrical interventions (Krauss, "Regulating Women's Bodies," p. 531). Eighty percent of the patients who were forced to undergo court-ordered cesarean sections were members of minority groups. Teaching hospitals play a critical role in this situation. Every documented request for a court-ordered intervention involved women who were patients at teaching hospitals or who received public assistance. See Krauss, "Regulating Women's Bodies," p. 531
67. Quoted in Kasindorf, "And Baby Makes Four," p. 13. In this article Kasindorf also reveals that the United States Congress has ignored antisurrogacy legislation placed before it
68. Collins, "Shifting the Center: Race, Class, and Feminist Theorizing about Motherhood," in Representations of Motherhood, ed. Donna Bassin, Margaret Honey, and Meryle Mahrer Kaplan (New Haven, Conn., 1994), p. 59
69. See Stanlie M. James, "Mothering: A Possible Black Feminist Link to Social Transformation?" Theorizing Black Feminisms: The Visionary Pragmatism of Black Women, ed. Stanlie M. James and Abena RA. Busia (New York, 1993), p. 44
70. See also Collins, "Shifting the Center" and Black Feminist Thought, and M. Rivka Polatnick, "Diversity in Women's Liberation Ideology: How a Black and a White Group of the 1960s Viewed Motherhood," Signs 21 (Spring 1996): 679-706
71. James, "Mothering," pp. 44,47
72. See also Carol Stack, All Our Kin (New York, 1974)
73. Petchesky, "The Body as Property," p. 398
74. On this point, see Hortense J. Spillers, "Mama's Baby, Papa's Maybe: An American Grammar Book," Diacritics 17 (Summer 1987): 65-81. Clearly, this old adage as it is described in Spiller's title has been reversed in Johnson v. Calvert, which seems to be a case of "Papa's Baby, Mama's Maybe."
75. Franklin, "Postmodern Procreation," p. 334
76. Patricia J. Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge, Mass., 1991), p. 226
77. See, for instance, Brackette F. Williams, "Classification Systems Revisited: Kinship, Caste, Race, and Nationality as the Flow of Blood and the Spread of Rights," Naturalizing Power: Essays in Feminist Cultural Analysis, ed. Sylvia Yanagisako and Carol Delaney (New York, 1994), pp. 201-36
78. See also Donna J. Haraway, "Universal Donors in a Vampire Culture: It's All in the Family. Biological Kinship Categories in the Twentieth-Century United States," Modest-Witness@Second-Millennium.FemaleMan©-Meets- OncoMouse™: Feminism and Technoscience (New York, 1997), pp. 213-66
79. See, for instance, Winthrop D.Jordan, White over Black: American Attitudes Toward the Negro, 1550-1812 (Chapel Hill, N.C., 1968)