Assisted reproductive technologies are often viewed as ‘threatening the moral fabric of society as a whole’ (MARCIA INHORN).
DISCUSS, with examples, how the political and legal systems of different nation states have responded to this ‘threat’.
Introduction
With any biotechnology, acceptance within both the public and authoritative spheres is crucial to its widespread use and dissemination (Inhorn, 2003:20). And depending on the technology, the extent to which it is taken up and accepted can be extremely varied. Assisted reproductive technologies (ARTs) are a prime example of this. Though scientists have been conducting research centered around assisted conception since the 1950s, ARTs were brought the world stage in 1978 when Louise Brown, who was born via in vitro fertilization (IVF), was born in England (Birenbaum-Carmeli and Inhorn, 2009:3-4). Since then their use has only continued to grow and expand across the globe. However, this expansion and growth has not occurred uniformly with some nations embracing ARTs more than others, something anthropologists have taken a tremendous interest in (Inhorn and Birenbaum-Carmeli, 2008:178).
Works concerning ARTs have generally taken one of two routes. Those taking the first route typically argue that these new technologies have completely changed the ways in which we understand kinship, family, relatedness, motherhood, biology, etc. Whereas, those taking the second route more or less take the stance that while there has been some shifting in the way we think about these ideas it has not been as dramatic as the first group might believe. Rather they argue that ARTs have been incorporated and manipulated in ways that reassert traditional notions of these ideas (Levine, 2008:381-2). In either case,
Ethnographic literature emerging from a number of developed societies (the United States, England, Israel, and Japan) shows the new reproductive technologies are often viewed as morally threatening, disrupting not only notions of personhood, parenthood, and family formation, but also the moral fabric of society as a whole. (Inhorn, 2003:20).
And while Inhorn’s statement above rings true in that ARTs have proved to be a threat to existing notions of what constitutes personhood, parenthood, and the family, her inclusion of “the moral fabric of society as a whole” at the end makes it appear as if all of these things are distinct from each other. Whether or not that was the intention of her statement, I would argue that the four things listed above, as well as many others, are all inherently intertwined and, therefore, cannot be easily separated. That is, the moral fabric of society is often perceived as being predicated on and sustained by proper kinship: normal family units produce moral citizens.
In order to illustrate my point, I will focus on surrogacy, which is just one of the many ARTs available. I have chosen surrogacy because it is often viewed as the one of the most concerning forms of ART (Cannell, 1990:674). That is, among other things, surrogacy breaks down and questions commonly held assumptions of family, motherhood, and nature (Teman, 2010:7-8). However, while the concerns and questions surrogacy brings up are fairly consistent across the world, they have been perceived and handled in a variety of different ways. On one end of the spectrum you have countries where surrogacy is banned entirely, whereas on the other end you have countries where very little regulation and law regarding surrogacy has been enacted (Teman, 2010:9-10). This broad spectrum of difference is how I have come to the examples that will be discussed below. Starting with domestic examples, I begin with the U.S. where surrogacy is regulated so that a particular aspect of traditional kinship is upheld at all costs. As for Israel, it provides a clear example of the ways in which religion, kinship, and citizenship often interact. Moving on to the second part of the essay, I look at international examples of surrogacy. Denmark is useful in that provides an example of the emphasis often placed on “proper” motherhood and biology. As for the U.S., it is useful for showing how nations may respond differently to ARTs depending where they are practiced.
Part 1: Domestic Surrogacy
What does a family look like?: California, U.S.
Unlike many European countries, the federal government of the United States has enacted very few restrictions or laws regarding ARTs (Smietana, 2017:2). Therefore, from a superficial point of view, it would appear as if the government does not perceive these technologies as a threat to the moral fabric of American society. However, by allowing ARTs to appear as if they operate freely within the capitalist market system, the U.S. government is able to present itself as being completely unthreatened while simultaneously maintaining considerable control over certain ideas surrounding proper parenthood and family structure, both of which are key pillars of American morality (Becker, 2000:20-21). Also, because of the federal government’s lack of regulation, each state has been allowed to impose its own rules and regulations (Teman, 2010:10). Therefore, in this section, I will focus just on California.
Looking at commercial surrogacy, in which California is a worldwide leader, it is interesting to note that when considering American core values, commercial surrogacy should be seen as a problem in that it brings the family, sex, and procreation out from the depths of the private realm and into the public sphere. Specifically, in the U.S., there this entrenched idea that these matters should be a “refuge from the intrusion of a public domain that consistently threatens our sense of privacy and self-determination,” not a part of it (Ragone, 1996:357). Yet, once again, there is virtually no regulation regarding commercial surrogacy at the federal level though some states do ban it (Teman, 2010:9: Smietana, 2017:2). The question then is why is it accepted? Before I move on to answer this question, I will first point out the fact that California, as well as a few others states, also allow non-heterosexual couples to participate in commercial surrogacy, which can also be seen as a breach of “American family values” (Smietana, 2017:1).
One way that commercial surrogacy manages to overcome the uncomfortable shift of bringing reproduction and child-rearing in the public sphere is that is it still often framed as an altruistic gift even though the surrogates are being compensated. Furthermore, there is also a deemphasizing of the biological relationship between surrogate and child. Instead, the nurturing role of the intended mother, another central notion of motherhood, is given precedence over nature (Ragone, 1996:360).
Placing surrogacy inside tradition, they attempt to circumvent some of the more difficult issues raised by the surrogacy process. In this way, programs and participants pick and choose among American cultural values about family, parenthood, and reproduction, and now choosing biological relatedness, now nurture, according to their needs (Ragone, 1996:363).
This partial deviation from “traditional” nuclear family ideas can also be seen when it comes to the allowance of gay and lesbian couples to participate in surrogacy. That is, the idea that parents should be of the opposite sex is overlooked in favor of maintaining a different aspect of family structure central to American ideas of morality: the two parent system. A system, in which many studies have shown, gay and lesbian couples actively strive to be a part of (Vandevusse, 2016; Smietana, 2017).
One way to examine this idea further is to look at Judith Butler’s work surrounding the legalization of gay marriage. In her article “Is Kinship Always Already Heterosexual?” she notes that while people’s reasons for getting married are widely varied, a commonly cited reason among gay and lesbian couples is that it produces a family form that is legally recognized by the state. Butler argues that this is problematic in that by legalizing, and therefore legitimizing, certain forms of relationships other forms are rendered illegitimate (2002:17). Also, proper social order, which includes family structure, is directly connected to ideas of capitalism, consumerism, and the nation-state (Becker, 2000:10-20). And when ARTs are left to the control of the market system, cost becomes a major barrier for many people trying pursue surrogacy. This stratification then reproduces ideas of who should and should not have children in that those with enough money for these technologies are typically middle-class, white, heterosexual couples (Becker, 2000:34). Therefore, for these reasons, the state’s control over who can and cannot get married cannot be examined in a vacuum.
Reproduction must be considered as well because when examined closely concerns about who can marry really boils down to concerns about reproduction and who has the right to have children (Haraway, 2002). This stems from the idea that the reproduction of children is seen as the reproduction of a family and that the families are understood as the building blocks of a nation-state. Reproduction reproduces the nation which in itself includes ideas of things such as morality, culture, and what it means to be a citizen.
Alicia Vandevusse also notes that what counts as an acceptable (legal) family is largely influenced by who can and cannot marry further, which she says helps to explain why the two parent model is continually upheld (2016:47). That is, in the U.S., where marriage is only legally recognized between two people, families seen as having more than two parent figures are recognized as illegitimate. In California, couples using a surrogate fill out a pre-birth order, which means that when the child is born their names will automatically be placed on the birth certificate (Teman, 2010:18). This is particularly interesting in that it is similar to the advice given in the Warnock Report, a report of recommendations concerning ARTs compiled by the English government in the 1980s, to couples using donor sperm. Instead of listing the biological father on the birth certificate, it was suggested that the husband of the wife receiving treatment should be listed instead. In either case, the lack of biological connection to one or both of the parents is overlooked in favour of maintaining a system where there can only be two legal parents. These arrangements are seen as “near enough to a natural family to justify a legal lie, but far enough away from being really natural to need that lie” (Cannell, 1990:673).
Furthermore, Vandevusse also points out that when it comes to gay couples, the litigious culture of the U.S. and fear of custody disputes further encourages them to privilege a family model in which there are only two parents (Vandevusse, 2016:22). And even with the 2015 Supreme Court ruling that states could not prohibit same-sex marriage, most same-sex couples are still continuing to participate in second parent adoption because it provides a legal form of kinship recognized by the state. They feel that there has not been enough precedence to suggest that they can act otherwise (47).
Lastly, favoritism of the two-parent system can also be seen with regards to the widespread avoidance of using friend or found sperm donors. There is, however, a trend of couples in the U.S. moving away from choosing completely anonymous donors to choosing identity-release donors. Like with anonymous donors, the names of identity-release donors are concealed but only until the child reaches the age of eighteen when they can then request it (Vandevusse, 2016:48;115). For the parents that choose this option, this produces the best of both worlds in which there is still some emphasis placed on genetic connections but without the threat of custody battles or third party involvement (Vandevusse, 2016:138). The stability that comes with having just two parents is maintained.
Religious Morality: Israel
Like the United States, Israel is one of the few countries in the world where surrogacy is legal. Though that is pretty much where the similarities end in that Israel’s regulation of the practice is entirely different. Because of the government’s Zionist ideology, Israel’s policies regarding ARTs are clearly not only linked to ideas of motherhood and religion but to citizenship as well (Teman, 2010:13; Khan, 2000:129). This is not to say that there no connections between kinship and citizenship when it comes to ART regulations in other countries, just that they are not typically as explicit and obvious. Examples of ways in which other countries link kinship with citizenship will be discussed further in part two.
In terms of education and participation within the professional sphere, Israeli women closely resemble their U.S. and European counterparts. However, there is one somewhat striking difference. That is, the fertility rate of women in Israeli far exceeds that of women in the U.S. or Europe. Again, this links back to the government’s pronatalist and Zionist ideology in which there is an emphasis on the regeneration and survival of the Jewish nation-state. Within this framework, child bearing becomes explicitly linked to nation building (Birenbaum-Carmeli, 2007:24).
Khan explores this line of questioning in her book, Reproducing Jews, where she explores how decisions made by rabbis surrounding Jewishness shaped ART practices within Israeli hospitals (2000). According to Orthodox Judaism, Jewishness is inherited through the mother (Teman, 2010:13). Therefore, when ARTs were first introduced, rabbis were forced to consider exactly what this meant because until this point it was assumed that women giving birth to children were genetically linked to them as well. Once it was determined by Jewish rabbis that Jewishness was conferred through birth from a Jewish womb, regardless of the origin of the egg or sperm, the Israeli government enacted several regulations to nullify threats that could brought about by surrogacy arrangements. That is, there were concerns that a lack of control over surrogacy could lead to non-Jewish people giving birth for Jewish-Israeli citizens, or Jewish-Israeli citizens acting as surrogates for couples from abroad, which would not only be a threat to the Jewish religion, but the the nation as well (Teman, 2010:12-13). So, by regulating surrogacy so that it is only carried out in certain forms, the government actively plays a role in guaranteeing that the children born through this process are not only Jewish but Israeli citizens as well.
As this section has shown, maternity not only matters with respect to religion but to the state as well in that Jewishness automatically confers citizenship in Israel. Therefore, under the pronatalist policy, it is not just important to reproduce children to make the nation-state healthy and strong but to reproduce legitimate types of children and families, which once again goes back to Butler’s idea of who is and is not desirable in the eyes of the state (Khan, 2000: 129). Lastly, it is important to note that while infertility treatments, such as IVF, are state funded and open to women of any martial or sexual status that surrogacy is limited to heterosexual couples (Birenbaum-Carmeli, 2007:25; Teman, 2010:13-14). The goal is to protect “the traditional family.” And like the U.S., this includes the assumption that a family consists of only two parents (Birenbaum-Carmeli, 2007:39; Teman, 2010:13-14).
Part 2: International Surrogacy
As a consequence of the ban many countries have placed on surrogacy, an increasing number of people are traveling abroad for their ART needs (Inhorn and Patrizio, 2012:158). Tracie Wilson argues that this increased prevalence in cross-border reproductive care (CRBC) and the development of reproductive tourism hubs provides proof of the fact that restrictive national policies towards ARTs are often ineffective, but does it? On contrary, I argue that this increase in reproductive tourism only increases governmental restrictions and consequently reinforces kinship structures. While these reproductive hubs do, as she says, “make it possible for actors to circumvent limitations imposed by states,” they are increasingly having to do so in a way that fits within the governments accepted model (Wilson, 2016:50). Specifically, governments are trying to limit the different forms of family structure that surrogacy can create by making the citizenship status of the children produced from these arrangements contingent on whether or not specific forms of kinship have been replicated. In this way citizenship is framed and conferred through the production of what the state sees as an acceptable family form. And in some cases, like the United States, these rules and regulations can be seen as somewhat contradictory to the ones that occur when the process takes place domestically.
In this section I will focus particularly on India, which until 2016 was one of the largest hubs for reproductive tourism. And while a detailed discussion of this next point remains outside of the scope of this essay, one important thing to note about reproductive tourism is that, in recent years, many countries have begun to introduce laws which restrict access to citizens alone (Rapp, 2011:700; Smietana, 2017:2). Therefore, by focusing on the period prior to 2016, I will examine the United States’ and Norway’s responses to their citizens having children in India via surrogacy.
Proper Motherhood Builds a Nation: Norway
In Norway, which has some the stricted ART laws in Europe, commercial surrogacy, anonymous sperm donation, and egg donation are all banned. And while the government often cites the reasoning for these bans as concern for the commodification and exploitation of women’s bodies, there has also been mention of the importance of prioritizing genetic roots and natural relationships. Specifically, there is a focus on maintaining connection between motherhood, birth, and biological connection (Karløkke 2012: 315). This is not surprising in that citizenship in Norway is conferred via jus sanguinis, which means that blood ties are of the utmost importance. Interestingly though, a child’s mother is a defined as the woman who gave birth to them. And until the advent of surrogacy this was not an issue in that this designation was seen as protecting the claim a mother has to her child, not threatening it. Now, even in cases where a Norwegian mother provides her own eggs to a surrogate, the only way the child can be conferred Norwegian citizenship is if their genetic father is a Norwegian citizen (Deomampo, 2014:).
Nationality is embedded in Norwegian semen; Norwegian eggs are positioned as ‘belonging’ to Norwegian birthing mothers alone, or, put another way, citizenship resides not in eggs but in the womb (Deomampo, 2014:218).
Therefore, based on these definitions of motherhood and citizenship, it becomes clear why citizens participating in surrogacy arrangements abroad becomes a real issue.
As Deomampo notes, traveling abroad for surrogacy and obtaining birth certificates used to occur without much issue for Norwegian citizens. However, as the number of people participating in this process began to increase the government felt it was necessary to reevaluate the process (2014:219). In 2006, the government revised their citizenship law to make it explicit that jus sanguinis was necessary for citizenship whether born at home or abroad (Kroløkke, 2012:319). This provides a good illustration of the point in that laws and regulations regarding reproductive technologies often appear after they have been introduced to society. By maintaining the idea that motherhood is conferred by giving birth from one’s own womb, the Norwegian government works against transnational surrogacy by labeling the mothers of the children born via this method as illegitimate. This is especially problematic when single women pursue surrogacy as in the case of of Kari Ann Volden.
In 2010, twin boys were born via an Indian surrogate to single mom Kari Ann Volden, a Norwegian citizen. Conceived with an Indian donor egg and Danish sperm, the twins were denied citizenship based on the fact that they shared no genetic connection to a male citizen of Norway and were not born from the Norwegian mother’s womb. Therefore, in the eyes of Norway, Kari was not their mother. This essentially made the boys stateless in that the Indian government did not recognize them as Indian citizens because children born via a surrogate are seen as belonging to the intended parents and not the woman who gave birth to them. In an attempt to persuade the Norwegian government to grant the boys citizenship through adoption, Volden initially lied about her genetic connection to them by saying they were biologically hers. However, this only hurt her case in that once the Norwegian government discovered her lie, Volden’s image as a proper mother was further soured and adoption was denied (Kroløkke, 2012). Therefore, as this case shows, in Norway “belonging to a nation depends, in part, on belonging to a family,” though that family cannot be just any family, rather it must be one that upholds motherhood in a morally acceptable way (Deomampo, 2014:213).
A Different Kind of Family Abroad?: The United States
As seen in part one, where biological kinship can pushed to wayside in favor reproducing a two parent system, circumstances change drastically when U.S. citizens engage with ARTs abroad. Biological and genetic ties once again become the major factor in legitimizing kinship relations.
In the United States, citizenship can be conferred either through being born on U.S. soil (jus solis) and/or of blood relations (jus sanguinis). Therefore, when a child is born abroad to U.S. citizens their citizenship status hinges on having a biological connection to at least one of their parents. And like with Norway, an increasing number of U.S. citizens traveling abroad for ART services has spurred the government to create guidelines that further emphasize biological links between child and parent. As of 2009, any parent applying for Consular Report of Birth Abroad (CRBA) became required to provide “clear evidence” of a biological link in cases where donor gametes and/or a surrogate was used (Deomampo, 2014:215).
Looking at the case of Patricia, it can be seen that while the importance of a biological link is stressed, many other things are left open up to interpretation, which creates a myriad of issues. After engaging in a surrogacy arrangement in India, Patricia was forced to go through second parent adoption because only her husband was biologically connected to their son, who was conceived via a donor egg. She chose not to put her name on the CRBA because she was afraid that she would be required to show proof of a biological link that she did not have and her son would therefore be denied citizenship status (Deomampo, 2014:217-218). Looking back to the first section at how surrogacy in practiced in California, this is a shift in that had she gone through the surrogacy process in the U.S. she would have been able to fill out a pre-birth order and have her name on the birth certificate with no issue (Teman, 2010:18). However, because of the government’s increased emphasis on the biological link between parents and children born via surrogacy abroad, she withheld her name to avoid hassle and setbacks in securing her son’s citizenship.
Conclusion
Overall, while the examples in this essay help illustrate the ways in which surrogacy challenges assumed ideas of kinship, they also show how governments implement rules and regulations in an attempt to neutralize the threat these changing relations pose to the countries’ moral values, which then consequently renaturalizes many of those assumed kinship ideas. I began by examining the actions, or lack thereof, taken by the U.S. and Israeli governments in response to surrogacy practice within the countries themselves. And while each government had a unique response, they both worked to maintain particular forms of what is considered to be the “traditional” family. Finally, in the case of reproductive tourism, I aimed to show how both the Norwegian and American governments use the citizenship status of children born via surrogacy abroad as a bargaining chip to maintain particular forms of kinship.
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