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American Literature 74.4 (2002) 859-885
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Race, Property, and Personhood
On 24 April 1998, Donna Fasano, a white woman, and Deborah Perry-Rogers, a black woman, underwent in vitro fertilization at a fertility clinic in midtown Manhattan. 1 Six weeks later they both learned of the mistake made that day: while each woman received her own fertilized eggs, Donna was given Deborah's eggs as well. Only Donna became pregnant, and in December 1998, she gave birth to two boys, one of whom, DNA tests showed, was not genetically hers. As the media declared, Donna Fasano had delivered "twins," "one white, one black," but the status of her motherhood was challenged as Deborah and her husband Robert filed for custody of their genetic child. 2 In March 1999, the couples reached an agreement: The Fasanos would give "Joseph" to the Rogerses if the twins would be raised as brothers. "We're giving him up because we love him," Donna Fasano explained to reporters. 3 In May 1999, one day after Mother's Day, as the Washington Post duly noted, the Fasanos relinquished the child to the Rogerses, who renamed him Akiel. 4
The pact between the couples was short-lived, however, and in June 1999 they went to court. The Fasanos claimed that the Rogerses had broken the custody agreement by refusing to allow Akiel to spend a weekend at their home; the Rogerses cited a failure of trust between the couples, based in part on an incident that occurred during a scheduled visit. According to Deborah Perry-Rogers, Donna Fasano had referred to herself as Akiel's mother, encouraging him to "Come to Mommy" and comforting him that his "mommy is here." 5 David Cohen, the Fasano attorney, explained the white couple's perspective: "The Fasanos don't see [Joseph] as someone else's black baby; they [End Page 859] see him as their baby." 6 Or in Donna Fasano's words: "He has two mothers. I am his mother and Mrs. Rogers definitely is his genetic mother." 7 Rudolph Silas, attorney for the Rogerses, countered: "The child can only have one mother, and on that we're very adamant." 8 By the end of summer, the court moved to settle the dispute once and for all by declaring Deborah Perry-Rogers the biological (and hence legal) mother.
While earlier court cases involving reproductive technologies raised similar issues about the authoritative status of genetics versus gestation, the Fasano-Rogers case is importantly unique in the history of assisted conception in the United States: It features the first woman, Donna Fasano, to be defined as both genetic mother (to the white child) and gestational surrogate (to the black child) in the same live birth. 9 In addition, there is Deborah Perry-Rogers, an infertile black woman, whose very infertility is culturally illegible in a dominant imaginary overwritten by notions of hyperreproductive and socially vampiristic black maternity. 10 How she secures her claim to natural maternity is a story of twin contracts: with the fertility clinic that offered technological assistance for genetic reproduction and with the state that sanctioned and naturalized, via the patriarchal marriage contract, her (hetero)sexual activity and the procreative property it might beget. At work in both of these contract relations is the property logic of liberal personhood, by which I mean the formation of social subjects within a modern state that recognizes and confers personhood on the basis of contractual relations—on the ability to enter into and stand as a responsible agent in a contract obligation to both the state (as citizen) and to other citizens (as transactors of labor and property ownership on one hand and as recognized heteronormative married subjects on the other). These domains of contract obligation—of citizen, spouse, and laborer-owner—have operated historically as powerful technologies for the production and excision of proper national subjects, mediating the relationship between the seemingly private world of personal affect, intimacy, and reproduction and the public realm of social exchange, itself evinced by the birth certificate, the voting card, the draft card...