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Can a Surrogacy Contract Stop a Surrogate Mother from Having an Abortion?

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In Raftopol v. Ramey, 299 Conn. 681 (2011), the Connecticut Supreme Court opined that “the legislature is the appropriate body to craft specific rules and procedures governing gestational [surrogacy] agreements.” If you recall, “gestational surrogacy” is where the birth mother (I refuse to call these surrogates “carriers” or “vessels” or any other such misogynistic name that essentially degrades and debases women to a form of “rent-a-wombs.” As I’ve said elsewhere, we live in a massively misogynistic culture which falsely parades itself as being pro-women. We are hateful of femininity.) is unrelated genetically to the child she carries. Unfortunately, the States are all over the place when it comes to surrogacy laws. Some states have surrogacy statutes, others have allowed judges to rule on what their surrogacy law will be, other states have no surrogacy law of any kind, and some states have outlawed surrogacy entirely. The federal government has no overarching law on surrogacy which would trump State law. Hence, the mess we’re in. Yet the Connecticut Supreme Court has at least done us the service of raising the issues that State legislatures ought to consider. These issues are important, and I provide them here, with brief comments in places, simply by way of introduction.

The court states: “In jurisdictions that have addressed the issues raised by the use of assisted reproductive technology, it appears that there are three general approaches to the determination of legal parentage. Those three approaches define parentage based on: (1) the intent of the parties; . . . 2) the genetic relatedness of the parties; . . . or (3) giving birth.” This third option is the one that presents problems for gestational surrogacy, for if the woman birthing the child and the woman who provided the egg are both considered “mothers,” well, you get the picture. Who’s maternal rights trump? This is why there is a strong push to get rid of this third option, and we get rid of it by defining the birth mother out of existence and downplaying the nature and purpose of pregnancy, both of which are bad for women and bad for us as a people.

The court continues: “Additional issues that some states have addressed, for example, include whether to recognize compensated gestational agreements. . .” This raises the issue of “baby-selling.” Are we buying and selling human life if we allow gestational mothers to be compensated? Numerous other countries have outlawed commercial surrogacy, only allowing people to engage in what might be called “altruistic” surrogacy.

” . . . whether to limit the availability to married couples, infertile intended parents . . .” Of course, this is where the whole homosexual issue comes up. If a State limits surrogacy to married couples only, many homosexuals will not be happy, to put it mildly. Unmarried heterosexual couples will be quite grumpy as well. This ultimately directs our attention to the children, and points up the adult-centric nature of surrogacy. In other words, how much should we concern ourselves with the parenting environments into which surrogate children will be born? Should we limit our concern to whether the people who want the children are law-abiding, responsible, healthy and clean, and rid ourselves of all questions related to having fathers and mothers? If the “science” is “settled” that it makes no difference to children whether they are raised by a father and mother, by two mothers, by two fathers, by any grouping of people who “love” them, then one can see where the surrogacy policy is headed. But of course, the science isn’t settled, and even if it were, it would be settled in favor of the fact that, all other things being equal, having a father and mother to raise you is best.

“. . . what protections to put in place to safeguard the gestational carrier’s right to make decisions regarding healthcare and termination of the pregnancy until the child has been delivered . . . ” This raises a whole host of practical questions: How well does the gestational mother have to take care of herself during the surrogate pregnancy? Does she have to eat healthy? Must she abstain from alcohol? What if she fails to do so? What if she changes her mind and wants to abort the baby or babies? Can a surrogacy contract contain a provision whereby the birth mother will abort the baby if the baby has certain birth defects? If you cannot force the birth mother to abort, what kinds of damages can you inflict on her for breach of contract?

“. . . whether to require that the spouse of the gestational carrier either consent or be made a party to the contract . . .” Obviously being a gestational mother does not just affect the mother. Husbands may be affected, as well as any children a gestational mother might already have.

“. . . whether to require that at least one intended parent contribute genetic material, and whether to require mental and physical health evaluations and home studies.” Let’s imagine a scenario. You’ve got a gay man, Jim, and his partner, Larry. They want to raise a child together, the child being the product of Sally’s egg and Thomas’ sperm. They would like Becky to carry and give birth to the child. How does one sort this out legally if Sally suddenly decides that she has rights to the child, it being her egg, and she sues for parentage rights? Alongside this, Thomas also sues because he wants to have parental rights as well, given that it’s his sperm. And does Child Protective Services need to do all sorts of tests to determine whether Jim, Larry, Sally, Thomas and Becky would be fit parents, should they all get some parentage rights in the child?

The court mentioned the Uniform Parentage Act, which discusses a whole bunch of other considerations: “specific procedural requirements for the hearing to validate the gestational agreement, including a residency requirement; joinder of the spouse of the gestational carrier, if she is married; a required finding by the court that the intended parents meet the standards of suitability applicable to adoptive parents and a finding of voluntariness as to all parties to the gestational agreement; . . .  procedures upon termination of the gestational agreement; . . . procedures upon the birth of the child, including the issuance of a court order declaring parentage and directing the responsible agency to issue a birth certificate naming the intended parents as parents to the child; . . . the effect of a subsequent marriage of the gestational carrier; . . . and the effect of a nonvalidated gestational agreement.”

One can see the legal, social and moral thicket into which surrogacy agreements lead us. Given the current ascendancy of radical individual autonomy, worship of sexual expression in any and all forms which the participants desire, and the fragmented and broken nature of our family lives, the issues and questions are going to be framed in a certain kind of way. The Church, of course, has the opportunity to consider these issues and development her own framework for addressing them, based on biblical premises and conclusions. As always, this provides us with opportunities to speak in terms of the redemptive work of Christ. I hope we will take such opportunities, for it is God’s image-bearers, after all, with whom surrogacy has to do.



Written by Michael Duenes

February 2, 2014 at 1:00 pm

What Does Pregnancy Mean?

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During pregnancy, women experience dramatic physical changes and a wide range of health consequences. Labor and delivery pose additional health risks and physical demands.” U.S. Supreme Court, Planned Parenthood v. Casey

“The [Uniform Parentage Act] begins with faulty nomenclature. It identifies the gestational surrogate as the ‘gestational mother.’ The use of the term ‘gestational mother’ throughout [Article 8 of this Act] is inappropriate, as it fosters the false presumption that the gestational carrier is actually the child’s mother. She is not. . . .[I]n surrogacy, the body is merely the vessel through which the services are rendered.” Paul G. Arshagouni, Be Fruitful and Multiply, By Other Means, If Necessary, 61 DePaul L. Rev. 709 (2012).

Surrogacy is an interesting study. I was anticipating doing a research project on the topic this semester, so I did a fair amount of reading on it over the Christmas holiday. Also, my good friend, Jennifer Lahl, has been neck deep in the surrogacy policy arena for some time now, and she was just here in Kansas this week to testify before our state legislature on the subject. The reason I think surrogacy is interesting is that it hits pro-life Catholics, Protestants, and feminists in unique ways, setting surrogacy apart from the more traditional pro-life issue of abortion. As Jennifer remarked to me, aside from the pro-life Catholics, people aren’t sure which “tribe” they want to join up with yet, whereas with abortion, people are pretty well entrenched in their respective camps.

Not only that, but there are various types of surrogacy. In traditional surrogacy, the woman supplies her own egg and is simply inseminated by the man who wants the child. What is becoming more common, and what seems more problematic, is what’s referred to as “gestational surrogacy,” wherein the woman who will carry the child and give birth to the child has no genetic relationship to the child. The egg and sperm are provided by third parties, through the invitro fertilization process (IVF), and implanted in the surrogate’s womb.

But is this problematic? A ton of people don’t think so, many others aren’t sure, and it seems to be only a very few who think surrogacy should be outlawed entirely. We can easily understand people at the two opposite poles. Homosexuals and singles who want children are understandably in favor of surrogacy, particularly gestational surrogacy, as it allows them to have children without an unwanted sex act. Conversely, orthodox Catholics oppose surrogacy in all forms, for surrogacy is violative of the procreative, conjugal sex act which is the only faithful way of producing children, in their view.

Protestants, or the plain old non-religious, don’t generally have the Catholic qualms about contraceptives, and thus, may be more or less ambivalent about surrogacy. One of my friends exemplifies this ambivalence a bit, as he wonders what surrogacy has to do with abortion. And that’s probably a continuing question for lots of Christians. After all, abortion is the taking of life, but in surrogacy, the goal seems to be bringing wanted lives into the world. No one is being killed, are they? What could possibly be wrong with people using technology and surrogates to achieve that which would otherwise be so painfully denied them? No one can understand the pain of infertility save the infertile.

Then we have the feminists, for whom surrogacy poses an interesting conundrum. On the one hand, they want women to have the autonomy and authority to “choose” what to do with their own bodies and reproductive systems, even if that includes being a surrogate for someone else. Privacy, choice and equality trump all other values. Yet this means they have to downplay the way that surrogate mothers are treated, namely, as not being mothers at all, but mere “carriers,” or to put it crassly, “breeders.” So we find the schizophrenic feminist position whereby the feminist sponsors an anti-surrogacy film like the Center for Bioethics and Culture’s “Breeders,” while posting flyers at the showing of the film stating that they don’t take a position on surrogacy and don’t support legislation which would ban it.

Yet might surrogacy, particularly gestational surrogacy, be more connected to abortion than one knows? Do all, or even most, of the people engaging in gestational surrogacy through IVF create a single embryo each time they try it? Or do they rather create many embryos and implant more than one of them in the surrogate mother, hoping that some of the embryos will die, and if they don’t, they will be affirmatively aborted (“selectively reduced,” as the euphemism goes)?

And what about the surrogate mothers themselves? The big move now is to avoid categorizing them as mothers at all. The legal literature is fascinating, insisting in many instances that the pregnant surrogate be called a “gestational carrier.” No, we dare not call her a mother, for that would imply that she has some connection and right to the child she bears. But to treat women as mere “carriers” is to denigrate and objectify them. It is to treat their generative capacities as a mere “service” to be ambivalently rendered. Indeed, it’s best if the gestational carrier does what she can to avoid bonding with the child she carries, in anticipation of the child being removed from her at birth. Not only must the surrogate’s femininity be diminished, but the nature and beauty of pregnancy must be blunted and marred as well. Pregnancy is something that encompasses the entirety of a woman’s physical body. There is not one cell of her body that is unaffected by pregnancy. Her emotional and psychological life is also entirely engaged in a pregnancy, for better or for worse. There is a bonding that goes on between child and mother, and rightly so, whether the mother thinks so or not. All of this must be downplayed so that the surrogate can simply render her services and then get on with life.

And what of the children? Surrogacy seems rather adult-centric, catering to the yearnings of adults rather than the best interests of the children. And when money is changing hands, how can we escape at least some complicity with baby-selling? And these days, one fears to question – at least in public – whether creating children to be raised in homosexual households is a good thing. Moreover, when adults need these wombs, by and large, to whom are they going to go? What population of women are going to be called upon to be surrogates, or will it be spread evenly amongst the population?

At the end of the day, however, many people seem to take the position that: “Well, these people are just trying to do something good, namely, bring life into the world and to experience the joys of parenthood. Why not just leave them to it? And surely if a woman does not want to be “dehumanized” by being considered a “rent-a-womb,” well then she can just say ‘no’ to surrogacy, can’t she? What’s the problem? We’ve got bigger fish to fry, like sex trafficking, political oppression, poverty, genocide, economic inequality, abortion, war and the like. Freedom is good; fertility is good. Surrogacy can’t really be a big deal, can it?” And it may not be a “big deal,” relative to other concerns, but does that mean it’s not a “deal” at all? Does that mean we ought not try and ask good questions about it, about the nature and purpose of femininity, motherhood and pregnancy, about the purpose of conceiving and raising children, and about the purpose human sexuality? And if we wonder about what kind of people we are becoming when we go in for surrogacy, might we not at least think about what would make us better people, more the kind of people God intends us to be?


Marvin Olasky: A Social History of Abortion in America

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abortionritesolaskyI just finished Olasky’s helpful book: Abortion Rites: A Social History of Abortion in America. Published in 1992, it’s a bit dated now, but still a very valuable book, in my opinion. His research raises questions about certain assumptions that pro-lifers tend to hold, namely, “that abortion was rare in the nineteenth century, that tough laws virtually ended the practice [of abortion], that doctors and ministers led the way, and that the anti-abortion consensus remained philosophically intact until the 1960s.” (p. 283). It was particularly disheartening to see that ministers and clergy often aided and abetted the practice of abortion, if by nothing else than silent acceptance of it. “[L]axity in Protestant churches especially was growing in the late nineteenth century…Some ministers had also become more accepting of sin in the name of what soon would be called compassion,… There was precious little appetite for exposing wrongdoing when many members and some ministers wanted their own wrongdoing to be let alone.” (p.165).

By the same token, Olasky concludes that pro-abortion groups are also wrong in some of their historical beliefs. It is not true “that abortion was widely accepted before [the 20th century], that abortion was diffused throughout the population, that abortion became illegal because regular doctors sought to drive out competition, and that abortion rates generally are unaffected by illegality or the development of alternatives.” (p.283). Abortion was largely confined to certain segments of the population (e.g., prostitutes and spiritists), and the rate of abortions did not really increase during the first 2/3rds of the 20th century.

I appreciated Olasky’s honesty in presenting the historical evidence about abortion practices in the U.S. As with all social and cultural practices around us today, the underlying rationales and motivations for our behavior are generally more complex than we imagine, and have been developing and trending over a much longer period of time than just a few decades. In America, abortion attitudes and practices were affected by forces as diverse as urbanization, theological liberalism, the eugenics movement, prostitution, gender egalitarianism, and the changing role of journalists, just to name a few. Further, according to Olasky’s estimates, the number of abortions in 1860s America, relative to the nation’s population at that time, translates, percentage-wise, into about the same number of abortions obtained today. This “similarity of overall abortion/ population ratios surprises many pro-lifers, because abortion then was sometimes doubly fatal and because the nineteenth century has been depicted as a time of ‘no compromise’ anti-abortion laws and strong anti-abortion lobbying by the American Medical Society and by church leaders.” (p.292). Indeed, it did surprise me to find out how many things have not really changed over the last century and a half with respect to abortion rates. This does not mean, however, that abortion was common across all sectors of society, nor that all sectors were accepting of it, as Olasky points out.

Another thing which has not changed is the role that men have played in abortion. I suspect the manner in which men have influenced women to have abortions has changed somewhat, yet then, as now, I believe that many women would not choose abortion but for the pressure and urging of the significant men in their lives. In earlier times, men would impregnate women and then abandon them, leaving them without the social and economic resources to raise the child. Today, fewer women may be without such resources, but the desire by men to have their women rid of the child has not changed.

Olasky further observes that, though laws against abortion do not change the human heart nor wipe out the practice of abortion, they are not thereby useless. They do have instructive power, and they are able to have a limiting or restrictive effect on the number of abortions. Thus, we do well to ignore the common argument of “let’s just change hearts and not worry about the laws.” Yes, heart change is needed, but the labor to implement laws which protect the unborn and which respect and aid mothers at the same time, is not wasted effort.

Another historical practice which comes in for detailed review is the way in which many women at risk for abortion, or who had already had an abortion (or had given birth), were cared for in practical ways by volunteer institutions. Many homes and organizations for women were established, and women were loved, cared for, and challenged to make spiritual changes in their lives in order to choose a better path for themselves. The importance of this cannot be overestimated. As Olasky says, “the anti-abortion forces examined the needs of populations disposed to abortion and found ways to keep some women from falling into the roles, situations, and beliefs that made abortion likely.” (p. 298). They did not save everyone, nor did they expect to. But what they did do was love women and their babies close up. They invested time and energy in their lives. It was actually quite astounding to see the tangible ways that people were able to make a difference, without the help of government aid. The eventual “professionalization” of social work certainly damaged much of the good work that was being done on the volunteer level. Yet “the practice of compassion, a century ago and today, means giving a woman undergoing a crisis pregnancy a physical home and a spiritual rock. It means the adoption of hard-to-place children. It means counseling and standing by desperate women. . . Yes, the slow pace of such efforts means that many lives have been lost also, but opponents of abortion need to realize that all have never been saved, even when law was firmly on the anti-abortion side.” (p.300).

Olasky provides a heartening question for pro-lifers to ask. Not, “why haven’t we been able to stop abortion?” But, “why aren’t things worse?” (p.302). I think this is right. Many work tirelessly and faithfully, in a variety of social, political and religious contexts, to make a difference in the lives of unborn babies and their families. Their efforts are not in vain. “The goal of today’s pro-lifers should be to repeat a nineteenth-century past in which abortion was successfully fought by moderate means under conditions that were spiritually far from ideal.” (p.306) We must continue our work of persuasion, continue to cry in the wilderness that all babies from conception onward are unique and special humans in the image of God, continue to press for just laws that protect the unborn and dignify their mothers (and fathers), continue to find and establish practical means for loving mothers and their babies, continue to expose lies that are told by those who would sacrifice our unborn children to the modern version of Molech, and always remember that it is “not by might nor by power, but by My Spirit, says the Lord.” We must also remember that God is wise, compassionate, just and merciful. He gives grace and strength, and He seeks and saves those to whom we show His love. He also provides resources for His children so that they can indeed demonstrate love in practical and sacrificial ways. May we pray for His resources, that we might win the more.


Written by Michael Duenes

July 20, 2013 at 3:09 pm

If You Actually Want to Give Birth to Your Child, It’ll Cost You!

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natural-childbirth-142I have in the past remarked that it would difficult to find a culture that has outwardly promoted “feminism” and “women’s right” more than ours, while at the same time actually treating women with contempt and disdain. There are many ways to demonstrate this, but it came home to me again yesterday as my wife was commenting on a New York Times story about the cost of giving birth. (American Way of Birth, Costliest in the World). One woman without maternity coverage was told by her local hospital that her birth would cost somewhere between $4,000 and $45,000. It isn’t shocking that the hospital didn’t have a clue about the cost, since one of the massive problems with our health care system is that nobody know what anything costs because prices are not allowed to play their proper role. But I digress. The cost we’re looking at in America is, on average, over $10,000 to give birth. I’m low-balling this, and that’s an average. It’s also a travesty.

Further, the radiology department wanted to charge this woman just shy of a grand to get an ultrasound, which she was ultimately able to bargain down to $655. Moreover, the article informs us that “[i]n 2011, 62 percent of women in the United States covered by private plans that were not obtained through an employer lacked maternity coverage,” like the woman above. Here in the land of “feminism” it cost more than double the highest cost in Europe, and triple the highest cost for a C-section.

The article goes on to chronicle the manner in which we pay for maternity care in America, showing it to be highly inefficient and cost-intensive. It also discusses the fact that if states have to foot the bill under government health plans, many states are going to go broke: “Medicaid, the federal-state government health insurance program for the poor, pays for more than 40 percent of all births nationally, including more than half of those in Louisiana and Texas. But even Medicaid, whose payments are regarded as so low that many doctors refuse to take patients covered under the program, paid an average of $9,131 for vaginal births and $13,590 for Caesarean deliveries in 2011.” But you can check this all out for yourself over at the Times.

I raise the issue because what I see all around me is politicians, pundits, and sundry other “women’s rights” advocates shouting from the rooftops that we need more access to abortion and contraceptives. We simply must have this, and it should be very affordable, if not free, for all women. But when it comes to a mother actually having her child, rather than having him or her killed, suddenly it costs an arm and a leg. Where’s the indignation? Where’s the outrage? There are few things, if indeed there is anything, that are more inextricably bound to being a woman than having a baby. It’s utterly unique to women, women who we as a culture claim to hold in such high esteem. But it seems we don’t hold the having of babies in high esteem. No, if you want to do that, you’re gonna have to pay, and through the nose. If we want to encourage women to have their babies, and to not look at childbearing as a “punishment,” this seems like it might be a good place to start. Maybe in the Church.

Somebody can tell me if I’m missing something, other than the relative silence about women having to pay five figures to do something that is so central to human existence, and which often does not require a lot of techno-gadgetry.


Valentine’s Day: “What To Expect When No One’s Expecting”

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PutinThe Weekly Standard reports that, on average, Russian women are having 13 abortions for every 10 live births. You don’t need a math degree to know what that means. Even Vladimir Putin has figured it out, which is ostensibly why he’s invited Boyz II Men to Russia for Valentine’s Day. The article surmises that Putin wants “to encourage love-making and . . . baby-making to offset Russia’s demographic disaster.” Jonathan Last, in his book, What to Expect When No One’s Expecting, has said, “Russians are so despondent about the future that they have 30 percent more abortions than births.”

In an article entitled: The Incredible Shrinking People, The Economist reports: “Russia’s demography befits a country at war. The population of 142m is shrinking by 700,000 people a year. By 2050 it could be down to 100m. The death rate is double the average for developed countries. The life expectancy of Russian males, at just 60 years, is one of the lowest in the world. Only half of Russian boys now aged 16 can expect to live to 60, much the same as at the end of the 19th century.” In terms of working force, the piece states: “Over the next seven years Russia’s labour force will shrink by 8m, and by 2025 it may be 18m-19m down on the present figure of 90m.” The article goes into various reasons why Russians are not having babies, ranging from “the collapse of the Soviet Union” to the lack of health care to “the curse of the bottle.” The author concludes: “The only solution to Russia’s demographic problems appears to be immigration, . . . but the Russian public is hostile to it.”

Aside from Margaret Thatcher’s dictum – “Eventually you run out of other people’s money” – there’s a cautionary tale here. No, I do not believe that the U.S. is in anywhere near the dire straits the Russians find themselves, and we certainly do not have their historical baggage. But to assume, as The Economist seems to, that such external factors as the collapse of a government or alcoholism are the root of problem, or that immigration is the “solution,” appears misguided. What leaps out is the utter silence as to why the Russian people have taken on such a death spiral. What is it about their character that causes them to abort so many babies, to sire so many children out of wedlock, or to forego having children at all?

Surely the legacy of the Soviet Union, and perhaps other historical forces, is the spiritual barrenness that reigns in the hearts and minds of so many Russian people. The gospel of Jesus Christ does not merely bless individuals, but also spreads like leaven through individuals into marriages, children, schools, churches, local institutions and associations, the professions, and into government. Thus, as Douglas Wilson says, the blessings of the gospel are cultural as well as individual. God redeems and improves cultural and national life for those who honor Him. This does not mean that Russia is devoid of godly people, but it does mean that high rebellion against God over long periods of time brings certain things in its train. And this is true no matter what people or nation we are speaking of. The demographic problems facing the U.S., which are as real, though not as advanced, as the ones facing Russia, are the fruit of the same tree: the failure to trust that Jesus is good and faithful, that His Word is absolutely true and satisfying, that marriage is primarily about Christ and the Church, and that the words, “be fruitful and multiply” are a blessing from the Lord, always and everywhere.

The solution is spiritual and moral, not primarily economic or demographic. Confidence in Jesus brings brings a zest for life and expansive notions of its goodness and spread. It causes people to “enlarge the place of their tent” and to “let the curtains of their habitations to be stretched out.” It causes them to “lengthen their cords and strengthen their stakes.” (Isaiah 54:2).


Written by Michael Duenes

February 13, 2013 at 11:44 pm