When Pope Francis called for a universal ban on gestational surrogacy—a call that was incorporated into ordinary magisterial teaching in Dignitas Infinita shortly before he died—a chorus of critics serenaded surrogacy. We were told that surrogacy is not “trafficking” in children, but a safe medical procedure that promotes human dignity by giving the gift of life, and the Church’s critique of surrogacy was actually itself demeaning to the dignity of those who believe in conscience that surrogacy is the right way for them to have children. And some even suggested that Dignitas Infinita was the product not of Pope Francis’s considered judgment but “hardliners” in the Vatican opposed to the agenda of “inclusion.”
And yet, recent horror stories of gestational surrogates have substantiated the magisterial teaching that surrogacy contracts subvert the dignity of women and children.
Consider the case of McKenna West, a gestational surrogate who recently gave birth in Texas. McKenna had contracted to carry the child of biological and legal parents, Omar Ahmed and Nausheen Gilkar of California (the Wild West of gestational surrogacy contracts). According to McKenna, the couple had indicated that even though they had a contractual right to “terminate,” they indicated this was not something they would do. Yet, when a twenty-week sonogram revealed a congenital heart defect (hypoplastic left heart syndrome, which can be treated but requires significant surgical intervention), the couple asked McKenna to abort the child. They indicated that if she did give birth, they would not seek medical care for the child. Yet, as a pro-lifer, McKenna was convicted “in my soul and in my heart that I wanted to protect this little boy.” So she fled to Texas where she gave birth, and the child is now under a protective court order, temporarily preventing him from being removed from Texas and receiving proper medical care.
Or consider another similar case that made recent headlines. A Canadian gay couple is suing a surrogate mother for emotional distress. The men had contracted with her to carry “their” child (the embryo is apparently from the sperm of one of them, the egg a donation from an unknown woman). At around twenty-two weeks, a sonogram revealed a cleft palate. Invoking their contract, which had contingencies for birth defects, the gay couple sought to force an abortion. And yet, the doctors determined that the child was otherwise healthy, and the surrogate pushed back. While the “fathers” ultimately agreed to retract their demand for an abortion and allowed the birth to go forward, they are seeking hundreds of thousands of dollars in damages for emotional distress.
What else is a surrogacy contract but the treatment of unborn human beings as chattels to be traded for money and discarded if the “product” is “defective”?
Is it not clear why the Magisterium teaches that children should not be treated as commodities secured through commercial contracts? In both of these cases, the parents paid (we can presume) tens of thousands of dollars to single women in economic need to rent their wombs. The deliverable turned out to be, from their perspective, a “flawed” product. So they sought the equivalent of an Amazon return of a defective item through coerced abortion.
The cases illustrate Dignitas Infinita’s teaching that the dignity of women and children are violated by the surrogacy regime. As McKenna reported, she felt “trapped.” And the all too predictable natural connection she forged with the baby she birthed underlies her attempt to gain parental custody. While she will likely lose that battle, the point should not be lost that this experience has led her to agree with Catholic teaching: It is wrong for the law to treat her body as a mere means to Ahmed and Gilkar’s gain. And of course the dignity of a child is violated when treated as a flawed product to be discarded. Even these children, who survived through the efforts of their surrogates, will have trauma they will one day have to face: Their own parents demeaned their dignity when they sought to end their lives.
Clearly Pope Francis’s call for universal ban should be heeded. Under our system of federalism, states can follow the examples of Nebraska, Louisiana, Indiana, and Arizona to ban or strongly restrict surrogacy contracts. Yet, states like Michigan and Massachusetts have liberalized their laws allowing for surrogacy, and California is a worldwide destination for surrogacy. There is another possibility: Arguably, permissive surrogacy contract regimes are already illegal because they are unconstitutional and in violation of the 13th Amendment.
The 13th Amendment to the Constitution of the United States reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
The original Constitution did not use the word “slavery.” This was, according to James Madison, because it would be “wrong to admit in the Constitution the idea that there could be property in men.” Yet, the Constitution did permit states to treat humans as chattels, and a few provisions implicitly referred to the practice. While some thinkers, like Frederick Douglass, argued that the unamended Constitution was actually antislavery and that it put the curious institution on the path to extinction, abolishing slavery ultimately required the Civil War and the 13th Amendment. Clearly the Constitution abolishes the commodification of human persons under the sanction of law.
What else is a surrogacy contract but the treatment of unborn human beings as chattels to be traded for money, and discarded if the “product” is “defective”? Let the defender of surrogacy explain it to us carefully and slowly. Is the unborn human being property or not? If the answer is yes, then how is that not admitting the idea that there can be property in men, in violation of the Constitution? If they are not property, why not? What other reason would it be than that unborn human beings are persons, endowed with that intrinsic dignity that resists chattelization? And in that case, the entire case for surrogacy and abortion unravels.
Additionally, some constitutional scholars have plausibly argued that surrogacy contracts also violate the involuntary servitude clause of the 13th Amendment, as a sort of peonage contract. Peonage contracts were agreements to perform personal services for which the peon was paid in advance, and then rich landowners could enlist courts to force performance of physical labor if the peon reneged on the contract—a practice that the Supreme Court declared unconstitutional. These cases illustrate that the spirit of peonage lives on in surrogacy contracts, which exploit poor women.
A common pro-choice/pro-surrogacy argument is to deny the personhood of the unborn. The idea is that embryos are property, since they are just parts of the woman’s body, which she owns. But there are obvious problems with this. In the first instance, IVF itself shows that, mereologically, embryos aren’t mere parts since they have an independent entitative status apart from the womb. Indeed, if presence in the womb just made the embryo part of the mother, biological parents would have a negligible moral claim on the surrogate mother. Another problem lies in the idea of body ownership itself. As Leon Kass eloquently argued, there are a number of aporetic questions that that body ownership thesis faces:
What kind of property is my body? Is it mine or is it me? Can it—or much of it—be alienated, like my other property, like my car or even my dog? And on what basis do I claim property rights in my body? Is it really “my own”? Have I labored to produce it? Less than did my mother, and yet it is not hers. Do I claim it on merit? Doubtful: I had it even before I could be said to be deserving. Do I hold it as a gift—whether or not there be a giver? How does one possess and use a gift? Are there limits on my right to dispose of it as I wish—especially if I do not know the answer to these questions? Can one sell—or even give away—that which is not clearly one’s own?
Defenders of the body ownership thesis are fond of retorting to such questions by enlisting John Locke’s famous defense of the idea that each person owns their body as the basis of natural rights. But, rather embarrassingly to secular Lockeans, Locke also argued that God owns each individual person because he made them. The conclusion is unavoidable: Even Locke affirmed that the body is a gift from God and that a person’s dominion (or, better, stewardship) over his body comes with the limits and responsibilities imposed by the moral law.
Still, we live in a society that is so confused about these matters that a prominent Catholic–identifying politician has sought to normalize the artifices of IVF and surrogacy by livestreaming the very expensive self-injection process to hyperstimulate her ovaries to overproduce eggs for surgical extraction and freezing. Whatever that politician’s intentions, Dignitas Infinita teaches us that such behavior is objectively undignified. For, extracting reproduction from the loving embrace of husband and wife in marital union and replacing it with human artifices of needles, drugs, and labs is violative of the dignity of parents and children, since they deserve a “fully human (and not artificially induced) origin and to receive the gift of a life that manifests both the dignity of the giver and that of the receiver.”