85 Race and Parentage
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85 Race and Parentage DOROTHY E. ROBERTS Creating White Babies One of the most striking features of technological efforts to provide parents with genetically related offspring is that they are used almost exclusively by affluent white people. The use of fertility clinics does not correspond to rates of infertility. Indeed, the profile of people most likely to attempt IVF [in vitro fertilization. Ed.] is precisely the opposite of those most likely to be infertile. The people in the United States most likely to be infertile are older, poorer, black, and poorly educated. Most couples who use IVF services are white, highly educated, and affluent. New reproductive technologies are popular not simply because of the value placed on the genetic tie, but because of the value placed on the white genetic tie. The high cost of fertility treatment largely restricts its availability to only the affluent. The expense of these procedures, however, cannot fully explain the racial discrepancy in their use. Many black middle-class infertile couples could afford them. Besides, inability to afford a medical procedure need not preclude its use. The government could increase the availability of new reproductive technologies to the poor through public funding. It would also be possible for black women to enter into informal surrogacy arrangements with black men without demanding huge fees. Yet a stark racial disparity looms in the use of new reproductive technologies. Why? Because of a complex interplay of financial barriers, physician referrals, and cultural preferences. The public's affection for the white babies that are produced by reproductive technologies legitimates their use. Noel Keane, the lawyer who in 1978 arranged the first public surrogacy adoption, described how this affection influenced the public's attitude toward his clients' arrangement. Although the first television appearance of the contracting parents, George and Debbie, and the surrogate mother, Sue, generated hostility, a second appearance on the Phil Donahue Show with two-month-old Elizabeth Anne changed the tide of public opinion. Keane explained: [T]his time there was only one focal point: Elizabeth Anne, blonde-haired, blue-eyed, and as real as a baby's yell. ... The show was one of Donahue's highest-rated ever and the audience came down firmly on the side of what Debbie, Sue, and George had done to bring Elizabeth Anne into the world] From "THE GENETIC TIE," 62 U. CHI. L. REV. 209 (1995). Originally published in the University of Chicago Law Review. Reprinted by permission. Copyrighted Material 524 Dorothy E. Roberts I suspect that a similar display of a curly haired, brown-skinned baby would not have had the same transformative effect on the viewing public. A highly publicized lawsuit against a fertility clinic evidenced revulsion at the technological creation of black babies. A white woman claimed that the clinic mistakenly inseminated her with a black man's sperm, rather than her husband's, resulting in the birth of a black child. The mother, who was genetically related to the child, demanded monetary damages for her injury, which she explained was due to the unbearable racial taunting her daughter suffered. The real harm to the mother, however, lay in the fertility clinic's failure to deliver the most critical part of its service-a white child. The clinic's racial mix-up rendered the mother's genetic tie worthless. It is highly unlikely that the white mother would have chosen black features "if allowed the supermarket array of options of blond hair, blue-green eyes, and narrow upturned noses."2 In the American market, a black child is considered an inferior product.3 Race and the Harm in Surrogacy The devaluation of the black genetic tie also helps to explain the harm in surrogacy. The argument against surrogacy rests on the peculiar nature of childbearing that makes its sale immoral. Some feminists argue that surrogacy impermissibly alienates a fundamental aspect of one's personhood and treats it as a marketable commodity. Surrogacy treats women as objects rather than valuable human beings by selling their capacity to bear children for a price. The relationship between race and the genetic tie further illuminates market inalienability. It demonstrates how surrogacy both misvalues and devalues human beings. The experience of surrogate mothers is not equivalent to slavery's horrors , dehumanization, and absolute denial of self-determination. Yet our understanding of the evils inherent in marketing human beings stems in part from the reduction of enslaved blacks to their physical service to whites. The quintessential commodification of human beings was the...