31 White Law and Lawyers: The Case of Surrogate Motherhood
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31 White Law and Lawyers: The Case of Surrogate Motherhood PETER HALEWOOD Much has been written on surrogate motherhood as an application of biotechnology which challenges conventional understandings of equality and the family. Surrogacy also challenges conventional notions of embodiment. Indeed, the law has responded to surrogacy by bracketing off the surrogate mother's embodiment-her factual experience of pregnancy-from the legal facts relevant to deciding disputes over custody arising from surrogacy arrangements. For example, even where the so-called surrogate is pregnant with her own fertilized ovum, she is defined not as the "biological" mother but as the" surrogate" mother, thus denying the biological and experiential fact that she is the mother. Surrogacy raises issues of embodiment along multiple axes. For example, when the surrogate mother is a woman of color and the contracting parents are white, the intersectionality of race, class, and gender makes the equality analysis more complicated. Where, for example , the surrogate is African American but both egg and sperm are from a white couple, making her neither genetically nor even racially connected to the fetus she carries, novel and important moral, legal, and political issues arise. The basic point is that women of color are subjected to discrimination along intersecting trajectories of race and gender and that this intersection is not recognized by anti-discrimination law because of its conventional top-down perspective, which has produced an analysis based on either race or gender that does not recognize the dual identity of women of color. But the fact of this dual identity is a fact of embodiment: this duality is the lived concrete existence of women of color. A liberal might argue that commercial surrogacy represents nothing more than a legitimate , marketable property interest in one's reproductive capacity. That is clearly a disembodied analysis, for it does not recognize that in surrogacy arrangements it will always be a female body and female reproductive capacity that are being purchased, often by the elevated earning power of a middle-class, white couple. Following this logic, many feminists have argued that surrogacy will always effect a degradation of women by commodifying their bodies and identities. For this reason, Margaret Radin has argued that reproductive capacity should be market-inalienable personal property-meaning that a woman's reproductive capacity is her property, but not property she is allowed to sell. Such regulation would protect the authenticity of female personhood. From "White Men Can't Jump: Critical Epistemologies, Embodiment, and the Praxis of Legal Scholarship," 7 YALE J. L. AND FEMINISM 1 (1995). Originally published in the Yale Journal of Law and Feminism. Reprinted by permission. Copyrighted Material 196 Peter Halewood In the famous Baby M case, Mary Beth Whitehead, a working-class white woman, contracted as a surrogate mother to bear a child conceived from her ovum fertilized by the sperm of the husband in the middle-class contracting couple. After giving birth, Whitehead decided to break the contract and keep the child. The New Jersey Superior Court held that the contract was not illusory and that Whitehead was bound by its terms.1 The liberal analysis of this problem assumes the classic free-contract abstraction and agnosticism about the concrete details of the parties' experiences. The"father" was a consumer ; Whitehead was a child "producer" in a mutually beneficial contract. The surrogate's relation to her pregnancy was analyzed in market-oriented terms, denying the unique relationship of the surrogate to the fetus inside her body. If the analysis focuses on her embodied relationship with the fetus rather than on the cold, hard legal facts of contractual transfer, the surrogate could be said to have a property interest in the experience of pregnancy greater than the rights assigned between the parties under contract. If one focuses on embodiment as an index of legality here, the transfer of Whitehead's reproductive capacity is no longer neutral. It is deeply significant to an analysis of equality and exploitation that in surrogacy it is always a woman's body at stake-never a man's. This obvious fact curiously disappears in a liberal, sex-neutral contract analysis. Here the normativity of law does conceptual violence to Whitehead's narrative about what happened to her, removing her dignity and erasing her history. She did not rationally contract away a disembodied intellectual service-her case was simply an unfortunate attempt by a middle-class couple to remove from her one of the most intimate forms of physical integrity and experience of...