Some Questions for Liberals and Conservatives to Consider.
A heartbreaking case in Texas has given me a chance to reassess how surrogacy agreements, abortion rights, and peonage intersect.
Put simply, a California couple entered into a surrogacy arrangement with a woman in Alaska. A fertilized embryo was implanted into the Alaska-based surrogate. At the 20-week point, the fetus was diagnosed with a congenital heart defect that would require multiple operations to sustain life. Under the terms of the surrogacy contract, the California couple directed the gestational carrier to terminate the pregnancy. The surrogate refused and traveled to Texas, where abortion would have been illegal. The Texas Attorney General intervened, seeking a temporary restraining order to ensure the infant would receive medical care. The baby has since been born. The California couple gave him one name and the Alaska-based surrogate gave him another. A custody dispute now looms, likely to be resolved by Texas courts. Throughout, the infant will face weeks of risky surgeries.
We should all pray for the baby in several ways. He faces extremely dangerous procedures ahead of him. Yet what comes after the surgery will present a difficult, lifelong challenge for this newborn. Who will be his parents? Pro-choice advocates often argue that abortion is chosen to spare the biological parents the grief of losing a child in utero or soon after birth. They contend that terminating earlier helps limit the pain as attachment grows. In this case, the California couple could not terminate because another person was carrying their child. So we encounter a rare counterfactual where the couple elected termination, but the child was carried to term. The biological parents now confront a very different form of grief—one that will likely endure during the child’s life and beyond. And if the child survives, he will one day learn that his biological parents would have preferred him to be dead.
Beyond the moral question, there is a constitutional issue at stake. The Alaska surrogate’s signature on the contract arguably obligates her to undergo an abortion if the California couple demanded it. She told Megyn Kelly that she felt “trapped” by the surrogacy agreement.
In any other setting, a contract that compels a woman to undergo a surgical procedure against her will would be void as a matter of public policy. Yet the very essence of surrogacy treats a woman’s body as a commodity that can be controlled.
There is a common refrain that bans on abortion violate the Thirteenth Amendment. I find these arguments to be laughable. The state has a compelling interest in preserving life and preventing its destruction. Moreover, laws restricting abortion were enacted in tandem with the Reconstruction Amendments. And even the least restrictive means to safeguard life would be to bar abortion.
The surrogacy contracts resemble another relic from Reconstruction: peonage agreements. After slavery was abolished, many freedmen signed “peonage” contracts, under which they were compelled to provide labor to settle debts. This amounted to slavery by another name. The Supreme Court declared such peonage contracts unconstitutional under the Thirteenth Amendment in Bailey v. Alabama.
If a surrogacy contract truly forces a woman to terminate a pregnancy against her will, I believe such a contract would violate the Thirteenth Amendment. Indeed, the very concept of surrogacy runs counter to the Thirteenth Amendment.
I came across an article published a quarter-century ago by a progressive writer arguing that surrogacy contracts exploit poor women and amount to peonage. This argument hasn’t gained much traction, perhaps because wealthy, elite women routinely pursue surrogacy, especially later in life, to have children. As a result, the practice tends to endure.
I don’t think this problem is limited to the left. Conservatives must reckon with both IVF and surrogacy.
Two overlapping themes run through this debate, yet they diverge in significant ways. First, many conservatives are pro-family and favor policies that enable more people to have more children. Second, conservatives are typically pro-life and aim to safeguard life from conception. IVF and surrogacy create tensions between these two goals. With IVF, many embryos are created, and only a subset are implanted. The procedure inevitably involves destroying the leftover fertilized embryos. Furthermore, when an embryo is implanted in a surrogate, there is a risk that the pregnant person will bond with the child and wish to keep it. Or, as in the Alaska case, the couple who supplied the fertilized embryo may wish to terminate their own pregnancy midway. The state then bears the responsibility of physically separating a newborn from the woman who carried him for nine months.
I don’t believe most pro-life thinkers have fully grappled with the implications of both IVF and surrogacy.
