Surrogacy and the Making of Modern Families

June 15, 2015

Not many weeks ago news emerged that Modern Family actress Sophia Vergara is embroiled in a legal battle with her ex-fiancé over possession of the couple’s two frozen embryos. The father is seeking “possession” of the embryos to prevent their destruction. He cannot take “custody” unless the court rules that the embryos are “daughters” eligible for custody, as he claims they are. In a defeating wrinkle, however, Mr. Loeb seems to have contracted with Ms. Vergara to limit what can be done with the embryos without the written consent of both parties. Mr. Loeb asks for the contract to be nullified, naturally, whereas Ms. Vergara believes, in her attorney’s words, “embryos are not children” and thus the contract stands.[1] The irony of this case escapes no one. Here we have a cast member of Modern Family in litigation to halt the artificial making of her own modern family.

Tragicomic as this episode may seem, a multitude of similar cases exacerbated by reproductive technologies are adjudicated legally across the county at any given time that are only and unironically tragic. What goes by the name “surrogacy” has until very recently lingered along the periphery of public consciousness. The practice is the subject of passing remarks among the affluent, particularly the celebrity class, as though it were something that that folks “just do” from time to time, arbitrary as wintering in Vale. The flippancy with which surrogacy is often treated, however, often conceals its deeply troubling moral and social implications. Here I offer a brief account of what surrogacy involves, who it affects, and then conclude by identifying several of the moral challenges it poses to contemporary understandings of family and parentage.

In its most basic formulation surrogacy describes a contractual agreement between “parents” of a child and the gestational (or carrying) “mother.” The typical case looks something like this: a couple who either cannot conceive or who do not wish to conceive themselves find and contract with a young woman willing to carry “their” child to term and upon delivery yield it immediately to the contracted “parents.” The reasons for contracting are numerous and complex, as we’ll see. In truth, however, as many as six different parties could be involved in a surrogacy contract: a donating “mother,” donating “father,” carrying mother, adoptive mother, adoptive father, and the child (or children). Complicated doesn’t quite begin to describe it.

Surrogacy is made possible by reliance upon highly sophisticated reproductive technologies associated with in vitro fertilization. The practice of IVF, in which a mother’s egg is extracted from her ovary, fertilized artificially (i.e., with precision instruments in a laboratory) with the father’s sperm and deposited into the mother’s womb is, shall we say, pregnant with moral complications. Typically, an excess number of eggs are extracted and fertilized unless the parents specifically impose limitations. This means, of course, that “unused” embryos are either kept frozen (at great cost) or are destroyed. Sadly, these “destructions” pale in comparison to the number of embryos destroyed in the course of refining IVF techniques over the past four decades. In any event, here the essential point is simply that IVF technologies make surrogacy possible.

Technologies making IVF itself possible also make possible genetic manipulation. If you haven’t heard much about this feat of medical engineering, you soon will. A lot. Its promise will take the initial guise of preventative medicine, to cancel out the possibility of inheriting genetic diseases like Alzheimer’s or Down’s syndrome. In other words, the goal is to engineer certain afflictions out of the human race entirely. Technologies associated with IVF promise molecular management of the species. Parents may one day have the option to gene-select a child’s skin pigmentation, eye color, stature, athletic prowess, or even intellectual aptitude. Why procreate naturally, ask medical engineers, when you can have the child you most want? Designer babies are perhaps but a few years away. When it finally arrives it will come hidden behind the promise to overcome the Human Condition, as the ethicist Paul Ramsey many decades ago anticipated it might.

So, how does one become a surrogate? Who helps facilitate the contract agreement between parties? Are there provisions applying to the kind of child that will be born? And what about the standard surrogate seeker, how does one even go about finding a surrogate? Consider a few cases:

A young female college student, let us call her Sally, discovers that the generous compensation package for serving as a surrogate would help pay for her college degree and so elects to enter into contract with a couple from New England. She must uphold all the provisions of the contract: maintain healthy diet and exercise, avoid consumption of harmful substances, and keep weekly visitations to her OB. Sally keeps her side of the bargain, and then some. But at about the seven-month mark she becomes plagued with doubt. With each passing week she is increasingly convinced that this is her child developing inside her and thus eventually becomes resolute: she simply will not give the baby up when it is delivered.

An impoverished recruit from the Yucatan peninsula, Maria, is matched with a couple seeking a surrogate. She will make more carrying this child to term than she could make in five years of full time labor. Like Sally, she must uphold all the contract stipulations to the fullest, and she does. But at month eight she is notified that the contracting couple has suddenly separated and according to contract the pregnancy must be terminated immediately. Maria is Catholic and did not imagine this couple would ever ask her to terminate the fetus. She finds herself at a personal impasse.

Although these two narratives are fictitious, cases similar to them—many far more horrifying—are recurrent and transnational. And I do mean transnational. Recruiters (or “handlers”) for law firms facilitating surrogacy contracts are stationed in countries across Southeast Asia, Africa, Eastern Europe, and Central America. Naturally these recruiters target poor or disenfranchised women. Once signed, the surrogates are more or less trapped; most (if not all) contracts protect the “parent(s)” and provide very few protections for the surrogate. No surrogate may abort a child at will without significant financial penalty. For the nine-month gestation period the surrogate is bound to satisfy all the parents’ wishes.

Surrogacy law lags far behind the practice. Only six states have statutes banning or voiding surrogacy contracts altogether. All other states regulate only loosely, adjusting applicable rules as unique cases arise. The state of Oklahoma, for example, only prohibits the “trafficking of children.” Legality thus depends entirely on how the arrangement is framed—couples must seek to “adopt,” not “purchase,” a child. Surrogacy laws across the country are surprisingly lax.

As you have already begun to detect, there is a deeply troubling moral underside to surrogacy. First, surrogacy contracts exploit the poor to benefit those in positions of power and advantage. It does not matter here that the surrogate enters the contract “freely.” Were she not poor she would not feel forced to enter a tilted contract in the first place. She is not the legal “possessor” of the child, so if the “parents” request termination, she is powerless to resist. Which raises the second point: surrogacy amounts to womb rental. This phrasing may sound overly crass, but it is the most fitting description of what the contract establishes; the mother is agreeing temporarily to rent out her womb for compensation. And with this a third problem: many, many women who do not anticipate developing an affectionate bond with the child during its gestation do in fact come to hold rather visceral bonds with the child. So here we have a “mother” who brings a child without her own genetic material into the world feeling tangibly bound to it, even to the point of loving and adoring it. Why? Because in utero the “new-one” and the mother experience one another in powerful ways.[2] Forming such a natural bond is precisely how God designed it and thus entirely unavoidable. Surrogates very often do not anticipate coming to love the life they help bring into the world, and so it comes as no surprise that a significant number of these young women put up a tremendous legal fight to retain custody of the children they contracted to give up. Can a surrogate “care” for her developing baby with only her head and without her heart, to simply do her contractual duty, dispassionate to the new-one drawing upon her very life and breath? The answer clearly is No, and indeed she shouldn’t have to.

In its current form surrogacy abolishes vital distinctions of parental progeny and drains pregnancy itself of meaning. Theologically, parentage is not established by chromosome or contract, but by corporeal care. My two sons happen to be of my biological progeny, but they are my sons because I father them. Surrogacy necessarily blurs these distinctions. Scripture likewise refers to the womb in almost sacred terms; it is a site for the indescribably magical, a place of human becoming. The prospect of commodifying the womb is wholly unthinkable, and not because it is scientifically “backwards,” but because the womb is a nest of care and nurture—the earliest locus of mothering. The womb is where mother and child first come to know one another in ways that surpass knowledge. No matter how detailed or clairvoyant, surrogacy contracts cannot adequately anticipate future changes of heart, either for the parents or surrogates, and thus must ignore how bonds of affection may deepen or wither.

Surrogacy legitimates itself as a practice only by ignoring the often troubling and disastrous repercussions it carries for women and children.

[1] It is unknown whether Vergara and Loeb intended to use a surrogate for their embryos.

[2] For more on this experiential relationship between mother and child I refer you to James Mumford’s very excellent book Ethics at the Beginning of Life (OUP, 2013). The happy neologism “new-one” is especially helpful.

Matthew Arbo
Matthew Arbo is Assistant Professor of Biblical and Theological Studies at Oklahoma Baptist University.

Matthew Arbo

Matthew Arbo has a Ph.D. in ethics from the University of Edinburgh, currently serves as a research fellow in Christian Ethics at the ERLC, and has taught at Southeastern, Midwestern, and Southern Seminary in Christian Ethics and Public Theology. He has formerly held a bioethics fellowship at the Paul Ramsey … Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24