“For millennia the class of people with vulvas and uteri etc (let’s call them WOMEN) have been oppressed, discriminated against, subjugated, murdered, raped, abused, assaulted, disfigured, held back, held down and terrorized by the class of people with penises and testicles etc (let’s call them MEN). And why?? Because of that very thing we’re supposed to pretend doesn’t exist or isn’t important; our biological sex. But we must not talk about it. Genitals don’t matter, remember??”
“It doesn’t make any difference what genitals someone has!” A very sneery teenager barked this statement at me during a discussion on gender identity and the recent London Pride parade. We were referencing a group of women who had moved to the front of the parade and carried banners protesting lesbian erasure from the LGBT movement and the swelling tide of transgender dogma which says lesbianism could, even should, involve biological males.
Much has already been written about the reasons for this action [*1]. I’m not a lesbian and it wouldn’t be fair of me to speak for the women involved. However, were I in their place, I would certainly feel betrayed and abandoned by a movement which was supposed to protect my rights and safety. Lesbianism means “Female homosexual”; women who are same-sex attracted. It does not involve males or male genitalia. If even the LGBT community itself…
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I often refer to this phenomenal article written by Lauren Plante MD, a perinatologist who birthed her own children at home. In the past, I have a hard time finding a copy of the text to show others. I am placing it here for ease of reference and encourage everyone to read what Lauren Plante has written.
Lauren A. Plante, MD, MPH, FACOG
The cesarean rate in the US has been rising for decades, and in 2006 hit an all-time high of 31% (Hamilton, 2007.) This record is likely to stand for only a brief time, that is, until figures are released for 2007. Can it really be that one-third of women are unable to birth without high-level technological support? And is there an endpoint in sight? “In the next decade or so the industrial revolution in obstetrics could make Cesarean delivery consistently safer than the birth process that evolution gave us.” (Gawande, 2006, 8) Against such an argument, who could hope to stand?
In a recent essay on the subject of childbirth, surgeon and author Atul Gawande muses on the Apgar score, obstetrical eponyms, and the rising cesarean rate. (Gawande, 2006) Although he lauds the success—often unheralded– of obstetrics in saving mothers’ and infants’ lives, I hear within the paean a threnody for the vanishing art. Skilled obstetricians like those legends of the past, whose names lived on in the maneuvers they devised to usher babies into the world, are vanishing from current practice: goodbye, Lovset; hit the road, Rubin; Mauriceau, it’s been swell, but we’re through.
Gawande makes a case for the standardization of obstetrics. “You seek reliability. You begin to wonder whether forty-two thousand obstetricians … could really master all these techniques … obstetricians decided that they needed a simpler, more predictable way to intervene when a laboring mother ran into trouble. They found it in the Cesarean section.” (7) He suggests that techniques for effecting vaginal delivery—maneuvers to reduce a shoulder dystocia, deliver a breech baby, assist delivery with forceps—are so subject to variations in skill that they cannot be standardized for reliably good outcomes, while the cesarean operation is commonplace and consistent. It is, if you will, the least common denominator: every obstetrician knows how to perform one. While this is a fascinating perspective on the changing of obstetrical practice, for those of us who actually work on a busy obstetrical unit industrialized childbirth conjures up images of the factory floor.
The drive toward fewer delivery options appears at first glance to be supported by upper-middle-class women, who have the least number of social and economic obstacles to autonomy. In fact, cynical staff at hospitals delivering large numbers of well-insured upper-middle-class women often refer to their institutions as baby factories: these are the places in which cesarean rates are highest. It is, after all, a paradox: women with higher incomes, higher levels of education, and commercial insurance have higher rates of cesarean delivery. If cesarean is a response to any perceived risk, why would women at statistically lower risk of a poor outcome have higher cesarean delivery rates? New Jersey has the highest cesarean rate among states, (Denk 2006) but no lower levels of maternal or perinatal mortality. (MacDorman 2007, CDC 1999) What it does have, however, is the highest median household income. (Census Bureau 2007)
Does this paradox reflect a differential understanding of risk? I have seen, over years of practice in maternal-fetal medicine, an odd and somewhat unsettling pride among women who announce that they have a “high-risk pregnancy.” Although the inherent literal meaning of the term high-risk pregnancy is one that entails a greater risk of a poor outcome (for mother or baby,) the subtext seems to be that high risk equals high value. In some cases it is difficult to persuade a low-risk woman to continue her care with a general OBGYN practice instead. “But I’m high-risk,” she says. Does she really mean, “I’m high-status,” or “My baby is high-value,” specifically, more precious than someone else’s? Is it a statement of importance? Does it mean that she is special? Or is it a Disneyfication of a primal human endeavor, longing for the synthetic and dramatized experience in preference to the authentic? These questions are raised, but cannot possibly be answered, in this commentary.
Women who want to be high-risk (read: special) in their designation are nonetheless hugely risk-averse when it comes to the real thing. Obstetricians have tapped into that fear in daily practice. Vaginal birth after cesarean (VBAC), for example, is associated with a very low although measurable risk of uterine rupture. Presented with the figures and asked to sign a consent for VBAC which spells out that risk, most women now decline: the VBAC rate in 2005 was under 8%. (Martin, 2006) Whether this is driven by reluctance of doctors to offer or women to undergo VBAC is impossible to ascertain, but it is clear that fear is contagious. And the indications for the initial cesarean—without which the question of VBAC would never be raised—have broadened considerably: breeches, twins, large babies, small babies, slow labor, even no labor. We now see the phenomenon of perfectly healthy, low-risk pregnant women requesting cesarean delivery upfront, in an attempt to eliminate all potential labor-associated risk for the infant. Even in the absence of any medical or obstetric indication for abdominal delivery, many women now seem eager to go under the knife. Somehow a perspective is emerging that cesarean is the best bet for delivery.
National cesarean rates do correlate—inversely—with both neonatal mortality and maternal mortality rates at the extreme low end of the spectrum. For developing or low-income countries, where access to safe maternity care is an issue, a rise in national CS rates from 0% to 8-10% is accompanied by a drop in stillbirths, neonatal deaths, and maternal deaths. (Goldenberg 2007, McClure 2007.) But across the developed world, or across medium- and high-income countries, there is no additional benefit of further increase in cesarean rate (Althabe 2006.): Slovenia, with a 12% cesarean rate, has the same maternal mortality ratio as the US. Nordic maternal mortality ratios are only a fraction of the American, at a 50% lower cesarean rate. Neonatal mortality does not change in high-income countries across a range of CS rates from 10-40%. (Althabe) Infant mortality rates as low as 4 per 1000 are achieved at CS rates of 15% in a number of countries, contrasting favorably with the US infant mortality rate of 7 per 1000: the American system results in infant mortality nearly twice as high achieved at the cost of twice as many cesareans. It is hard to make the argument on a population basis that abdominal delivery is safer for mothers or babies, at least after a minimal necessary rate is achieved.
Nonetheless, seduced by the promise of pain-free, risk-free childbirth, women and their doctors are driving the cesarean rate ever higher. Rates approaching—or exceeding– fifty percent are now seen in some hospitals (New Jersey Star-Ledger.) This is the normalization of deviance. This is the new normal.
It would be unfortunate enough if the push toward CS were limited to a few upper-middle-class women (“too posh to push.”) But, judging from the South American experience, everyone wants the lifestyle of the rich and famous. Cesarean rates as high as 80% among well-off women in the private sector in Brazil (Kilsztajn 2007) appear to have created prevalent expectations, either among physicians or among other groups of women, that cesarean is the preferred option. (Potter 2008; Behague 2002; Angeja 2006) In at least some cases, poor women have been known to put away their own funds to ensure they will be delivered abdominally rather than vaginally. This would suggest they are concerned about inequitable or unfair treatment unless they deliver by cesarean. In the US, we have heard arguments that women are entitled to autonomy in making their birth choices, and that therefore it is ethical to perform cesarean for no reason other than maternal request. Curiously, this vaunted autonomy stops at the door of the labor room. Women are implicitly allowed, or encouraged, to make only those choices which increase the power of the physician and which decrease their own.
Let us enumerate what a full spectrum of childbirth choices entails. Women can give birth at home unaided; at home with family or with trained assistance; in a birth center, either freestanding or hospital-based; in the hospital delivery room with trained assistance; or in the operating room where they are acted upon. But of all these choices, extending across the entire range of reliance upon the medical profession (from none to total), exercising the options at the end of the spectrum where the physician has the least sway will get women the least support. The American College of Obstetricians and Gynecologists calumniates not only women who want a home birth but anyone who advocates leaving that option open. (American College of Obstetricians and Gynecologists, 2008.) Once in the hospital, women who might like to exercise their right to self-determination by choosing vaginal birth after cesarean, or vaginal breech delivery, will have a hard time of it. (Leeman and Plante, 2006) Is it not the opposite of autonomy to support only those choices which increase the woman’s reliance upon the physician?
Industrial obstetrics strips the locus of power definitively away from women. The history of childbirth in America reflects a persistent trend of increased control by physicians and increased medicalization. Childbirth moves, first, out of the home, and now out of the vagina. Stipulate that antibiotics and blood banks are good and necessary things, and that emergencies may, in fact, develop: still, the majority of births will be normal. Or they would be, without interference. The species that cannot birth its young becomes extinct. But fear has pushed nearly all American childbirth into the hospital, a campaign which continues even now that that battle looks to have been won. (American College of Obstetricians and Gynecologists, 2008) Still, despite the implied promise of safety if all the rules are followed—ID bracelets, intravenous lines, electronic fetal monitoring—labor may follow an unpredictable path. The definition of “normal” becomes ever narrower, and toleration of deviance ever lower. The final stage of this philosophy takes the process of birth away from the woman entirely and turns it into a surgical procedure performed by the doctor. Childbirth becomes a manufactured experience, shorn of any real risk or real power, one in which the woman is so far alienated from the capabilities of her body that she is only a package on an operating table for a professional to open.
We’ve seen industrial revolutions before. The classic example gave us cheap toys and manufactured goods. At first the consumer focuses on the price point and on the sheer reproducibility: every Thomas and Friends wooden railway toy is just like every other. When you reduce variation, you get “normal,” by anyone’s definition. The very notion of quality control is rooted in the factory. Economies of scale and industrial production give consumers cheaper product than the handcrafted item, so that just about anyone can afford to buy toys from China. (Unfortunately, cost is an issue for manufacturers too: lead paint is cheaper than the alternatives, so nearly 2 million of those Thomas and Friends wooden trains were recalled for safety concerns last year. Sometimes safety is trumped by other considerations when industry rules.) While industrialization reduces cost and reduces variation, it is not an unqualified good. Should we be so quick to cheer the industrialization of childbirth? (Gawande, 2006)
The industrialization of food production is, perhaps, a harbinger of the industrialization of childbirth. Food production was once local, varied and small-scale, but farms have been taken over by huge conglomerates, and monoculture of a small number of genetically uniform crops has replaced variety. The disappearance of cultivars—that is, the loss of deviants—means that random natural events could wipe out large swaths of the food supply. To draw an even more pointed parallel, meat in America is cheap and widely available because of industrialized animal production. These animals lead narrowly confined lives from conception to death. Reliance on a small number of breeds, confined animal feeding operations, and the production line essentially turn animals into factory products. Industrial animal production has exacted a price in ways that until recently were invisible to the average consumer: the pollution of air and groundwater, the increasing potential for foodborne illness, the escalation of antibiotic resistance which begins in industrial herds but moves into human populations, even the quality of those animals’ lives. Clearly, industrialization has a downside, although we may not notice the drawbacks until all competing models have vanished. While some would object to drawing an analogy between industrial food production and industrial childbirth, I submit that in both cases we see a conversion of a living creature to a commodity, with an emphasis on the end product and a marked disinterest in the natural process over time. Women can be processed through the childbirth machine and handed a baby at the other end, stripping them of their central role at the heart of things, and turning them instead into objects that someone else operates upon.
The paradox is this: women wish to be treated as individuals, and assert for themselves a wish to exert control, yet in the commodification and industrialization of childbirth they are so much more likely to be treated as units of production. I know of one large community hospital revamping their labor floor and planning for a 50% cesarean delivery rate: and just as we learned in the 1989 movie, Field of Dreams, if you build it, they will come. The staffing and scheduling patterns for a 50% cesarean rate, as well as administration plans for hospital length of stay, can’t be turned on a dime. Hospital administrations like predictability, in patient patterns, patient care pathways, and everything else. If we normalize this industrialized approach to childbirth, we are likely to be stuck in it for a very long time indeed—and we can’t look to the medical profession to correct it.
But maybe, just maybe, there’s a backlash coming. An entire generation of American women fed their infants artificial formula because they were told it was modern, convenient, and better for their babies. Decades of medical progress later, two-thirds of mothers at least attempt breastfeeding. (Wright 2001) The women’s movement has challenged the hegemony of the medical profession in the past. (Kaiser and Kaiser, 1974)
As a reaction to industrial agriculture and food marketing, the Slow Food and locavore movements have recently been born. If de-escalation of our food production practices is healthier or more humane, why is intensification of our child production practices better than sustainable childbirth? I’m waiting for the birth of the revolution, or at least, the revolution of birth. Will women who are interested in Slow Food or cage-free eggs find their way to a Slow Childbirth movement? Imagine: educated upper-middle-class women who buy songbird-certified organic coffee and worry about their carbon footprint, just saying no to the quick-fix cesarean culture. If they’re not part of the problem, maybe they can be part of the solution. But the impetus must come from women themselves. Do we really believe that industrial obstetrics is the best model for ourselves and our children? We must clearly understand that real autonomy does not mean cesarean on request, but instead a spectrum of birth options that honor women’s authentic choices. Real autonomy also means, to borrow a sentiment from Gandhi, that women should bring forth the change they wish to see in the world.
Althabe F, Sosa C, Belizan JM, Gibbons L, Jacquerioz F, Bergel E. 2006. Cesarean section rates and maternal and neonatal mortality in low-, medium-, and high-income countries: an ecological study. Birth 33 (4): 270-7.
American College of Obstetricians and Gynecologists. 2008. ACOG Statement on Home Births. News release, 2/6/08. Online at http://www.acog.org/from_home/publications/press_releases/nr02-06-08-2.cfm. Accessed 3/20/08
Angeja ACE, Washington AE, Vargas JE, Gomez R, Rojas I, Caughey AB. 2006. Chilean women’s preferences regarding mode of delivery: which do they prefer and why? British Journal of Obstetrics and Gynaecology 113 (11): 1253-8.
Behague DP, Victora CG, Barros FC. 2002. Consumer demand for caesarean sections in Brazil: informed decision making, patient choice, or social inequality? A population based birth cohort study linking ethnographic and epidemiological methods. British Medical Journal 324 (7343): 942-7.
Centers for Disease Control. State-specific maternal mortality among black and white women—United States, 1987-1996. Morbidity and Mortality Weekly Report 1999; 48: 492-6
Denk CE, Kruse LK, Jain NJ. 2006. Surveillance of cesarean section deliveries, New Jersey 1999-2004. Topics in Health Statistics October 2005 (revised January 2006.) New Jersey Department of Health and Senior Services, Center for Health Statistics, Trenton NJ.
Gawande A. 2006. The score: how childbirth went industrial. New Yorker, October 9, 2006: 1-9, http://www.newyorker.com/archive/2006/10/09/061009fa_fact?currentPage=1, Accessed 3/21/08.
Gandhi, M. 2002. As quoted in “Arun Gandhi Shares the Mahatma’s Message” by Michel W. Potts, in India – West [San Leandro, California] Vol. XXVII, No. 13 (1 February 2002): p. A34.
Goldenberg RL, McClure EM, Bann CM. 2007. The relationship of intrapartum and antepartum stillbirth rates to measures of obstetric care in developed and developing countries. Acta Obstetricia et Gynecologica 2007; 86 (11): 1303-9.
Hamilton BE, Martin JA, Ventura SJ. 2006. Births: preliminary data for 2006. National Vital Statistics Reports. 56 (7). http://www.cdc.gov/nchs/data/nvsr/nvsr56/nvsr56_07.pdf. Accessed 3/21/08.
Kaiser BL, Kaiser IH. 1974. The challenge of the women’s movement to American gynecology. American Journal of Obstetrics & Gynecology. 120 (5): 652-65.
Kilsztajn S, do Carmo MSN, Machado LC, Lopes ES, Lima LZ. 2007. Caesarean sections and maternal mortality in Sao Paulo. Eur J Obstet Gynecol Reprod Biol . 132 (1): 64-9.
Leeman LM, Plante LA. 2006. Patient-choice vaginal delivery? Annals of Family Medicine. 4(3): 265-8.
MacDorman MF, Hoyert DL, Martin JA, Munson ML, Hamilton BE. 2007. Fetal and perinatal mortality, United States, 2003. National Vital Statistics Reports 55 (6). February 21, 2007.
Martin JA, Hamilton BE, Sutton PD, Ventura SJ, Menacker F, Kirmeyer S, Munson ML. 2007. Births: final data for 2005. Nat Vital Statistics Reports 56 (6). Online at http://www.cdc.gov/nchs/data/nvsr/nvsr56/nvsr56_06.pdf. Accessed 3/28/08
McClure EM, Goldenberg RL, Bann CM. 2007. Maternal mortality, stillbirth and measures of obstetric care in developing and developed countries. International Journal of Gynecology and Obstetrics 96 (2): 139-46.
New Jersey Star-Ledger. 2006. Giving birth in New Jersey. http://www.starledger.com/str/indexpage/environment/default.asp Accessed 3/29/08.
Potter JE, Hopkins K, Faundes A. Perpetuo I. 2008. Women’s autonomy and scheduled cesarean sections in Brazil: a cautionary tale. Birth 35 (1): 33-40.
United States Census Bureau, 2006. Two-year-average median household income by state: 2003-2005. http://www.census.gov/hhes/www/incomeincome06/statemhi2.html. Accessed 3/21/08.
Wright AL. 2001. The rise of breastfeeding in the United States. Pediatric Clinics of North America 48(1): 1-12.
The Motherhouse. That’s the name of the convent where my Aunt Joan, also known as Sr. Marianne, lives out her retirement as a member of the order of the Sisters of St. Joseph. The Motherhouse sits on a forested hill amid many other forested hills in the panhandle of West Virginia. Surrounded by rose bushes, big trees, and statues of The Blessed Mary, The Motherhouse serves as both a retirement home and a retreat center for Catholic nuns and laity to come and feel closer to the Divine. The sisters who live there have spent their entire adult lives serving women and children and now rest in the gorgeous environs where they sing and garden and pray for peace on Earth.
Every time I walk into The Motherhouse, I can’t stop crying. My wounded heart feels safe enough to let go there. I don’t break down sobbing, but my eyes are constantly wet and prone to brimming over every time I speak or have a conscious thought. I’m certain that my emotional state disturbs my aunt, but she’s an old, compassionate woman and has learned to sit with those who mourn without squirming or changing the subject or running away. She doesn’t, however, encourage further and deeper and stronger expression of my grief. So I inevitably reabsorb the tears, suck back the torrent of despair, and pretend I’m done. That’s it. Just a little crying. Not enough to make anyone too nervous or uncomfortable. We can get back to discussing the news or the weather or the garden now. Thank goodness that’s over.
I fantasize about a Motherhouse where I could keep crying for as long as the tears needed to come. A Motherhouse full of women called to facilitate grief. A place where natural grief is supported and honored as an important process that should not be rushed or numbed or suppressed. A place where my 21-year-old self could have gone and received help and encouragement when her mother died of cancer, leaving her lonely and afraid and in so much pain that she truly believed that if she let herself begin to feel her feelings she’d lose herself forever to the tears.
Twenty-six years since my mother died and I still long for a grief midwife. Someone to sit with me and say, “Let go. Surrender to it. Give yourself over to the waves of feeling.” Someone to hold my hand, rub my back, and encourage me to go deeper into my process. Someone to brush my hair back while I wretch from crying so hard while she tells me, “You’re doing great. Keep going. Let yourself feel it. You won’t be given more than you can handle.”
Eighteen years have passed since my father left his body without warning or fanfare, and I’m still looking for a refuge where I can break down into a liquid mess and surrender to the pain of missing him so much, the fear of living out the rest of my life as an orphan, the terror of dying young myself and leaving my own children with the burden of losing their mother while they are still in the process of finishing childhood themselves. My fantasy grief midwives would encourage me to drink tea and keep breathing and eventually they would lead me to a pile of pillows on the bed where I could collapse and wail and let the waves of pain wash through me. When I asked them, “How much longer? When will it end?” they would reply, “You’re doing great. Just stay right with it. It takes as long as it takes.”
Apparently, I’ll never be done grieving, although I often believe I’m through with the worst of it. Most days, the loss of my parents sits in my heart like a sacred, sensitive coal. I carry the small and constant burning pain with a reverence that keeps me compassionate. My grief connects me to the inevitabilty of loss that accompanies all of us through life. My grief is a gift.
During the periods when my grief feels integrated into my wholeness, I counsel those who have recently lost loved ones that the time will come when the pain doesn’t permeate every day, every moment. Sometime in the future–six months, eighteen months, five years from now–the loss will no longer feel like it just happened. Enough time will pour over the wound and other events and thoughts and feelings will take precedence in your life. Trust me. Your time of acute grieving will end.
I tell people that my grief over the loss of my parents no longer defines me but will always be a part of me. It is a holy thread that I have learned to weave into the tapestry of my life. At each new phase of my development, I must find a way for the aching thread of grief to fit into the new design. I can never leave my grief behind, I tell people, but I’ve learned to appreciate the bittersweet beauty of that sensitive part of myself.
Weaving the thread of grief into my life. It sounds so simple, so like the words of one who has moved past the acute, immediate loss of a loved one. What I don’t readily say is that when the moments come to do the weaving, every few months or years or when I step into my aunt’s convent, I pick up the thread of grief and it feels like a live electrical wire. The pain of loss rushes back into me with a current so strong, I couldn’t let it go if I tried. And I do try, with sugar or alcohol or political outrage, because I want to get away. Because I want to numb out and escape. Because I don’t have a safe place to go where it’s dark and quiet and smells good and there are women waiting to hold me and make me feel safe and encourage me to feel the pain.
I fully recognize that I am now an adult and it is my responsibility to create for myself safe ways and places to express my grief. But wouldn’t it be wonderful if those places already existed, were institutionalized in our culture and easy to access? Because when I pick up that live wire of grief, I don’t feel like a responsible, resourceful adult. I’m right back to being that lost and lonely college student, desperate and aching and wishing so hard that someone would notice my pain and lead me to a refuge where my grief would be tended. Where I would be nurtured. Where grief midwives would smooth my tight and worried brow, hold me, and tell me it’s alright to step into the void and feel the pain. Where a group of women called to comfort those who mourn would say, “Let us mother you through the loss of your mother. Let us acknowledge the enormity of your heartache. Let us keep you safe while you pass through the sacred territory of your grief.” I long for The Motherhouse.
(My Aunt Joan has moved on to the realm of the ancestors since I first wrote this piece. I honor her life of service to women and children.)
When I see the unquestioning use of the word “cis” I assume I am dealing with someone who adheres to gender ideology. This word is degrading and designed to enforce the idea that sex-role stereotypes are innate. “Cis woman” implies a woman who naturally performs femininity, the set of ritualized submission gestures taught to female-sexed people from birth. You do not seem to understand that there is a difference between sex and gender or that the millenia old system of patriarchy oppresses female sexed people because of our reproductive capacity. When male authority figures like Rick Santorum (who supports transgenderism btw) get on the airways every election cycle and announce that women should be forced by the state to birth rapists’ babies, these men are not participating in gender oppression; they are oppressing women on the basis of sex. Transwomen have never worried about being forced to give birth, going to jail for a suspicious miscarriage, or giving birth at home in a state where that act is illegal. Transwomen’s bodies are not and have never been church and state regulated breeding units. I fight for the class of people oppressed on the basis of biological sex. I call these people female, girls, and women.
If transwomen would like to join this fight in a way that does not eliminate this group of people from having concise words for ourselves and the ability to name what is happening to us (sex-based oppression; males oppressing females), I welcome that help. Instead, many transwomen are upset that female people are not using our resources and energy to fight for the rights of males who declare themselves female. Your questions imply that those of us who fight against global sex-based oppression are doing wrong by the people who say there is no such thing as sex, that female is just a feeling that a person with a penis can have, and that the most important women are the women who are actually men.
Are you asking gender activists questions about how it may be harmful to the class of people who are oppressed on the basis of sex to no longer have a word for ourselves? Are you asking transwomen how girls and women (who live under a constant threat of rape by people with penises) might feel about being forced to have people with penises in our locker rooms, changing rooms, DV shelters, jail cells, etc? Are you asking why men like Rick Santorum and the religious authorities of Iran support transgenderism? Why will the government of Iran kill someone for being gay but happily pay for “sex-change” surgery? Could it be because being gay actually challenges the sexist behavioral caste system called gender while being transgender does not? And on the subject of Iran, are you asking how the women of Iran feel now that half of their national women’s soccer team consists of biological males?
As a female person, I am very aware of what would have been my fate had I been born elsewhere in the world. I agonize every day over what my sisters are enduring globally. No transwoman would have been at risk of being aborted in the womb when a vulva showed up on an ultrasound or being smothered to death for not having a penis or being fed less than bepenised siblings. Transwomen would not have been at risk of being sold to an old man as a rape and breeding slave while the world called it “child marriage.” Transwomen would not have been abducted from school by Boko Haram, raped and impregnated then shunned by the whole village upon returning from that hell. Transwomen would not have been denied education provided only to male children. Transwomen would not be the ward of male relatives, unable to leave the house without being covered head to toe and accompanied by a male over the age of 13. If transwomen would like to join the fight against these and other sex-based atrocities, I would welcome that. Instead, trans activists are more interested in forcing women to adhere to the linguistic demands of males who assert they are female and forcing women to pretend to agree that penises can be female organs.
I support all trans people in their right to perform gender and to believe whatever they believe about themselves and the world. I believe trans people should have freedom of expression and be free of discrimination in housing, healthcare, and employment. I condemn physical violence against trans people. I do not believe transwomen have a right to insist that I capitulate to gender ideology or to compel me to use words I do not believe are true.
Radical feminism is the global movement to end sex-based oppression. We cannot end sex-based oppression without ending gender. Females are not oppressed because of their gender. Gender itself oppresses females.
Amici are a group of prominent feminist academics and advocates from the United States and abroad who have dedicated themselves to exposing the exploitation of, and violence against, women.
They have worked to expose the hidden epidemics of sexual harassment, intimate partner and stranger rape, incest, woman-battering, and human and sexual trafficking. They have educated the public and the legal profession and inspired the legislative and judicial arms of the government to take action in all these areas.
They have documented the practices that have treated women unfairly, unjustly, even heinously, in order to benefit from their unique resources and/or labor.
Their interest in this litigation arises from the fact that commercial surrogacy specifically exploits female-only biology since only women can become pregnant, remain pregnant for nine months, nourish and bond with a desired child-to-be, endure all the physical and emotional discomforts and risks (as well as pleasures) involved in pregnancy, go through labor, and give birth. Amici seek to highlight how this is all completely exploited and degraded in a surrogacy arrangement and the harms that this exploitation causes. Appendix A. lists them in full.
SUMMARY OF ARGUMENT
By its very definition, surrogacy is the commodification of women and their bodies as well as commodification of children. Surrogate services are advertised, surrogates are recruited, and clinics, brokers and lawyers make huge profits. The commercialism of surrogacy raises the specter of a black market and baby selling, of a breeder industry of factory farmed women ala Margaret Atwood’s The Handmaid’s Tale. Surrogacy degrades a pregnancy to a service for sale and a baby to a product for purchase – an “entitlement” for those possessing the financial means to procure one.
It is illegal to sell a body part. To the extent to which surrogacy entails the sale of both a service and a “product” – a living being – it is not only illegal and unethical; it also exploits and harms the birthmother, whether she is genetically related or is the gestational birthmother to the child or children. One cannot legally sell an organ; one can only donate it. Thus, one should not be able to sell the “produce” of one’s womb; namely, the creation of a child. This is baby selling and violates the Thirteenth Amendment to the U.S. Const. amend. XIII, which prohibits slavery or the sale of a human being for money. Surrogacy is reproductive trafficking and/or reproductive prostitution and can also be understood as reproductive slavery. As such, it embodies innumerable harms and abuses to both women and children.
In surrogacy, the rights of the children being produced are simply not considered. Transferring the responsibilities of parenthood from the birthing mother to a contract buyer denies the child any claim to its gestational surrogate mother and to its biological parents if the egg and/or sperm is/are not that of the buyers. The right of children to information regarding their genetic history and any siblings they may have who are the offspring of the biological parents is denied to surrogate children. The child is commissioned by the buyer(s) as a commodity for purchase and subject to the specifications of said buyer.
Commercial surrogacy endangers the physical and emotional health of the woman it exploits and the children that it is selling.
SURROGACY COMMODIFIES AND EXPLOITS WOMEN AND CHILDREN
The surrogacy story works on two levels simultaneously. It accustoms us to the idea that women are objects in the marketplace at the same time that the arguments of surrogacy advocates deny this. Surrogacy advocates assert that we should see women as the owners of their bodies. Pregnancy is a “service” just like factory work or lawn mowing. To this end, they use exactly the same argumentation as prostitution proponents. But if pregnancy is a job, what then is the product? The product of surrogacy is absolutely tangible: it is a newborn baby. If pregnancy is the same as working in a factory, then the child is comparable to a car or a smartphone. The woman bears and gives birth to a child and then hands the product over. At the same time she gives up the child, she receives payment. It is germane to ask, why should this not be considered human trafficking? Gena Corea, The Mother Machine; Reproductive Technologies from Artificial Insemination to Artificial Wombs 275 (Harper and Collins 1985)
The practice of commercial surrogacy has expanded dramatically with every passing year. Aliette Carolan, What Has Fueled the Huge Growth in Surrogacy in the Past Decade? (May 5, 2014) http://www.Acarolanlaw.com/what-has-fueled-the-huge-growth-in-surrogacy-in-the-past-decade; Deborah L Cohen, Surrogate Pregnancies on the Rise Despite Cost Hurdles, Reuters (March 18, 2013) http://www.reuters.com/article/us-parent-surrogate-idUSBRE92H11Q20130318
The media is intoxicated by images of beaming smiles, euphoric new parents, and innocent infants. The reality of surrogacy, however, is ignored because of what it reveals. What is this reality? It is a predatory, profit-driven industry that preys on marginalized and impoverished women, creating a breeder class for wealthier people: the infertile, celebrities, gay men and single individuals. It is about women being subjected to life-threatening health risks to produce custom-made children. It is children being intentionally severed from genetic and biological sources of identity, with no concern for human rights. In essence, it is the ultimate manifestation of the commodification of all forms of life to create profit and fulfill the narcissistic desires of an entitled elite.
European Parliament and United Nations Condemnation of Surrogacy
In April, 2011 the European Parliament adopted a resolution on violence against women that condemned surrogacy “as an exploitation of the female body and her reproductive organs.” It goes on to emphasize that “women and children are subject to the same forms of exploitation and both can be regarded as commodities on the international reproductive market, and that these new reproductive arrangements, such as surrogacy, augment the trafficking of women and children and illegal adoption across national borders. Resolution on Violence Against Women, EUR.PARL.DOC (April 5, 2011),http://www.europarl.europa. eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-0127+0+DOC+XML+V0//EN
The United Nations (UN) has warned about the growing trafficking of women that surrogacy creates. As far back as 2009, the United Nations Development Program (UNDP) warned that human trafficking for the purpose of surrogacy is increasing. Indian lawyer Anil Malhotra, an international law expert, writes that “exploitation, extortion, and ethical abuses in surrogacy trafficking are rampant, go undeterred, and surrogate mothers are used with impunity.” Anil Malhotra, Business of Babies, The Tribune Chandigarh, India, December 14, 2008, http://www.tribuneindia.com/2008/20081214/spectrum/main2.htm
As with any other commercial transaction, the surrogacy broker defines the conditions of the sale. Many surrogacy brokers insist that the surrogate be married and the mother of at least one healthy child, be medically fit, psychologically compliant, abstain from sex, cigarettes, alcohol and any other drugs (other than those they compel) during the pregnancy, and must agree to give up her parental rights after the baby is born. Brokers prefer married women since their husbands are not the biological fathers of the surrogate children and so the women are much less likely to want to keep the baby.
Gestational surrogacy, in which the egg used to create the embryo is not the surrogate’s, was established with the development of Assisted Reproductive Technologies (ART) in order to strip the surrogate of parental rights. If a woman has already given birth to a healthy child, she is a proven breeder. The surrogacy and egg trafficking industries are similar to agribusiness’ factory farming of animals. Good breeders are selected and they are controlled, monitored and pumped with hormones and numerous drugs. After they have performed their function, they are discarded.
Regulations vary both nationally and internationally and cater to the surrogacy broker and his or her financially privileged customers who benefit from the commodification of reproduction, and exploit low income and poor women for their reproductive capacities. Surrogacy and egg trafficking have become pervasive phenomena in which women’s poverty and subordinate status in the United States and throughout the world, increase their exposure to gender-based exploitation and physical harms.
The profiteers who commercialize reproduction – brokers, lawyers, clinics and fertility doctors– respond to the accurate characterization of their actions as being exploitive of women by using Orwellian language. They prevaricate that they are engaging in altruism and falsely label egg sellers as donors and surrogates as womb renters or service providers in order to hide the true nature of their business.
It is no coincidence that surrogacy brokers and clinics are concentrated in states where there are large military bases. As with ads for eggs in college newspapers on campuses, military publications such as Stars and Stripes and Army Times are filled with surrogacy broker ads. One could also point out that while the military heavily recruits from the working class and poor demographics, these people are doubly exploited for their reproductive capacities – in this instance by profit-driven private enterprise.
American military wives on low fixed incomes have turned to surrogacy in huge numbers to in most cases double their incomes. Although members of the military constitute less than 1% of the US population, nation-wide, military wives constitute 20% of surrogates. In states where there are vast military bases such as Texas, California and Florida, the percentage goes up to 50%. Journalists Habiba Nosheen and Hilke Schellmann spent two years investigating the use of military wives as surrogates. Interviewed on ABC News, Schellmann said “We found out that there is basically no regulation. This is the Wild West. There are no laws regulating this industry at all, and almost anything is possible.” ABC News also interviewed Colleen, a surrogate military wife. Her husband makes $30,000 a year and is stationed in Iraq. “It truly was a way for me to earn some kind of income” Colleen told the reporter. Colleen says Tricare health insurance, provided to all members of the US military, did not question her surrogate pregnancy and she did not tell them. Astrid Rodrigues and Jon Meyersohn, (ABC News October 15, 2010), http://abcnews.go.com/GMA/Parenting/military-wives-surrogates-carrying-babies-love-money/story?id=11882687
Military wives are a primary target of the American fertility industry. These women represent an ideal supply source for the industry. They are low income (between $16,000 and $30,000 per year) and a proven breeding stock as they tend to get married and have their own children at very young ages. The prospect of doubling their income by serving as a surrogate is a powerful incentive since most surrogates in the US are paid between $20-25,000. Perhaps the most enticing feature of military wives for the business is that they are assumed to be celibate if their husbands are stationed overseas; surrogates are instructed not to have sexual intercourse for the duration of the process (a gross violation of individual freedom and personal autonomy).Lorraine Ali, The Curious Lives of Surrogates, (Newsweek March 29, 2008), http://www.newsweek.com/curious-lives-surrogates-84469
There is reverse exploitation of the women who supply their eggs and those who serve as surrogates. In their quest for designer children, buyers target vulnerable uninformed young women, particularly at elite universities, for their genetically desirable eggs. Lured by appeals to their financial self-interest, many college students struggling to finance their education see ubiquitous ads in social media and campus newspapers for their eggs as a risk-free cash infusion. Offers ranging from $50,000 to $100,000 for “designer eggs” from women with exceptionally good looks (blonde and blue-eyed preferred), high SAT scores, athletic ability, musical talent, and attendance at an Ivy League university, can prove irresistible to uninformed women in need of a major income injection. From the high income buyer’s perspective, why buy from Walmart when you can shop at Tiffany’s? Absolutely no discussion is taking place about this blatant classism, racism, ableism, and elitism which underlie this selective breeding at a price, also known as eugenics.
Once the designer eggs are obtained from the desired gene pool, a body with a proven track record for successful reproductive performance is needed to gestate the resultant embryo. Unlike the women providing the designer eggs, no such concern is exhibited for the characteristics of the surrogate who need only be a good brood mare. High IQs, impeccable academic credentials, musical or athletic prowess are completely unnecessary; here the demand is for passive compliance and demonstrated reproductive capacity. Consequently, the race, ethnicity, intelligence, talents and physical appearance of the woman are irrelevant. David Jones, The Designer Baby Factory: Eggs from Beautiful Eastern Europeans, Sperm from Wealthy Westerners, and Embryos Implanted in Desperate Women, (The Daily Mail, May 4, 2012) http://www.dailymail.co.uk/news/article-2139708/The-designer-baby-factory-Eggs-beautiful-Eastern-Europeans-Sperm-wealthy-Westerners-And-embryos-implanted-desperate-women.html
Thus, the practice of surrogacy raises the specter of eugenics, resoundingly rejected globally after World War II in the wake of the Nazi Holocaust, and is a gross exploitation of healthy young women for genetically desired traits and economically marginalized women as a breeder stock for the wealthy.
COMMERCIAL SURROGACY IS PHYSICALLY AND EMOTIONALLY
HARMFUL TO BOTH WOMEN AND THE CHILDREN THEY CARRY.
There are irrefutable physiological and psychological bonds between pregnant women and developing fetuses regardless of genetic relationship which dictate that surrogate mothers are the real mothers of the children they produce. A pregnant woman is responsible for the life, growth, nurturance, development and health of the maturing fetus. If not for the surrogate, the embryo which becomes a child would not and could not exist, negating the deeply misogynist claim that surrogates are just “containers,” “ovens,” “gestational carriers” and “vessels.” As the body secretes hormones during pregnancy, an organic evolutionary process of attachment commences. Many longitudinal and cross-sectional studies have documented increases in maternal feelings of attachment, particularly after 20 weeks of pregnancy. C.S Carter, Neuroendocrine Perspectives on Social Attachment and Love, 1998 Psychoneuroendocrinology, 23, 779-818.
A pregnant woman who creates the child is not the buyer. A pregnant woman is not a “surrogate” for someone else. She is a pregnant woman whose body causes a child to exist; being forced to deny this biological reality constitutes grievous harm.
The symbiotic relationship between a pregnant woman and fetus encompasses nutrition, sleeping and waking, sound, movement, language, hormones, and epigenetics. The pregnant woman’s body is the sole source of nutrition for the fetus, a fact that has life-long consequences for human beings. Even flavors of the foods a pregnant woman eats are passed into the amniotic fluid. Studies have documented that mothers who consumed garlic, carrots or anise before an amniocentesis test gave birth to babies who preferred or at least tolerated such foods after they were born. J.A. Mannella, A. Johnson and G.K., Beauchamp, Garlic Ingestion by Pregnant Women Alters the Odor of Amniotic Fluid, 120 Chemical Senses, 207-209 (April 1995). The fetus’ sleeping and waking patterns are synchronized with the mother’s. J.Worth, C.I. Onyeije, A. Ferber, J.S. Pondo and M.Y. Divon, The Association between Fetal and Maternal Sleep Patterns in Third Trimester Pregnancies, 186 Am.J.of Obstetrics & Gynecology 924(May 2002). Newborns recognize their mother’s voice and even her language. Pregnant women also sing to their babies and teach them language; some mothers accustom their fetuses to music – all of which newborns can recognize after birth. Pregnant women also experience hormonal changes which orient them towards their fetuses. R.Feldman, A.Weller, O. Zagoory-Sharon and A Levine, A., Evidence for a Neuroendocrinological Foundation of Human Affiliation: Plasma Oxytocin Levels Across Pregnancy and the Postpartum Period Predict Mother-Infant Bonding, 18 Psychological Science 965(2007). Called the “love and bonding” hormone, oxytocin, released during pregnancy, reduces the woman’s blood pressure, blocks stress hormones, and aids in relaxation. It surges during labor and facilitates bonding between mothers and newborns .D. Maestripieri, Biological Bases of Maternal Attachment, 10 Current Directions in Psychological Science 79(2001).Epigenetics is how genes are expressed and are influenced by the environment. Epigenetics is distinguished from genetics which is the actual DNA sequence. Studies demonstrate that stress has a major effect on fetuses; when a pregnant woman is under stress it directly impacts the child resulting in lower IQ and impaired language abilities. D.P. LaPlante, et al., Project Ice Storm: Maternal Stress Affects Cognitive and Linguistic Functioning in 5 ½ Year-Old Children, 47 Journal of the American Academy of Child, Adolescent Psychiatry 1063(2008).
An entire field of study – fetal origins – has been established in which scientists are developing a radically new understanding of our prenatal experiences and how they exert lasting effects from infancy through adulthood, regardless of the genetic connection between the pregnant mother and the developing fetus or the lack thereof. The research reveals that pregnancy is a crucial staging ground for our health, ability, and well-being throughout life. As a matter of fact, both the pregnant woman and the fetus exchange their DNA through the permeable placenta.In her groundbreaking book Origins: How the Nine Months Before Birth Shape the Rest of Our Lives (Paul, Annie Murphy, 2010, Origins: How the Nine Months Before Birth Shape the Rest of Our Lives, New York: Free Press)author and journalist Annie Murphy Paul extensively documents scientific findings on how a single exposure to an environmental toxin may produce damage that is passed on to multiple generations; how conditions as varied as diabetes, heart disease, and mental illness may get their start in utero; why the womb is medicine’s latest target for the promotion of lifelong health, from preventing cancer to reducing obesity. The fetus is not an inert being, but an active and dynamic creature, responding and adapting as it readies itself for life in the particular world it will inhabit. The pregnant woman is not merely a source of potential harm to her fetus, as she is so often reminded, but a source of influence on her future child that is far more powerful and positive than has ever been known. Pregnancy is not a nine-month wait for the big event of birth but a momentous period unto itself, a cradle of individual strength and wellness and a crucible of public health and social equality or inequality.
Commercial Surrogacy ignores the reality of the bond that forms between the mother and the child. This willful ignorance has negative consequences for both the mother and the child.
Commercial surrogacy subjects women to psychological abuse which may lead to Post Traumatic Stress Syndrome (PTSD). Drew Rosielle, MD, The Trauma of Surrogacy, Pallimed Hospice & Palliative Medicine (March 8, 2011),http://www.pallimed.org/2011/03/trauma-of-surrogacy.html. In fact, the actual loss is compounded by the demand that the birthmother “feel” nothing, to in fact deny what she is feeling, mimicking mental illness. For a surrogate to undergo pregnancy through IVF, carry to term, deliver and relinquish the child, she must exhibit a large degree of dissociation from her natural feelings, to deny what her body informs her, and to detach from her emotional and physical investment in the child. Phyllis Chesler, Sacred Bond: The Legacy of Baby M (Times Books, 1988); Claire Snowdon, What Makes a Mother? Interviews with Women Involved in Egg Donation and Surrogacy, Birth, Birth Issues in Perinatal care June 1994, at 77-84
These are neither simple nor natural tasks even after pre-selection psychological screening, extensive “counseling” (one could say brainwashing) during pregnancy and after relinquishment. All of this is contrary to the natural instincts of motherhood and to the best interests of children. This phenomenon is similar to biological birthmothers who suffer the loss of a newborn, infant, or child whom they are forced to relinquish in a custody battle and similar to teen birthmothers who, in the past, were forced by their parents to relinquish their “illegitimate” child.
Since the surrogate is treated as a “container” for the embryo, she is not expected to become attached to the child. Her feelings after the separation are seen as a passing affliction. In the US surrogacy industry, women are coached to be detached from the children they carry. Surrogacy agencies follow women during their entire pregnancies “to ensure that they understand whose child they are carrying and giving up,” writes scholar Olga van den Akker. 2007, Psychosocial Aspects of Surrogate Motherhood, Human Reproduction Update, 13, 1: 53-62
In the US, it is standard procedure for surrogate mothers to attend support groups arranged by the agencies where they learn how to be pregnant without becoming attached to the developing child. They also function as training and groupthink camps where women learn which feelings are “acceptable” and which are not. A woman who expresses herself in an unacceptable way may be reported to the agency reminiscent of informants in dictatorships. Rosemarie Tong, The Overdue Death of a Feminist Chameleon: Taking a Stand on Surrogacy Arrangements in The Ethics of Reproductive Technology, (Kenneth D. Alpern ed, 1992)
Surrogates all over the world, regardless of whether they feel surrogacy is good or bad, describe the techniques of turning off their emotions. First and foremost, this has to do with creating a mental distance and can be done in various ways, using techniques such as ignoring, turning off, or transferring feelings to someone else. In Helena Ragone’s study, skin color is a major factor used by surrogates to distance themselves from the child. Black and Mexican women therefore prefer to carry white and Asian children. Ragone writes: “My preliminary findings suggest that the majority of gestational surrogates do not object to, and may actually find it desirable to be matched with a couple from a different racial background. One of the reasons for this preference is that racial/ethnic difference provides more ‘distance’ between them, a degree of separation the gestational surrogate is able to place between herself and the child.” Helena Ragone, Surrogate Motherhood: Conception in the Heart (Westview Press 1994).
The most widely used form of thought control is to repeat: “It is not my child.” Repeating that the child belongs to someone else is the industry’s most common way of manipulating surrogates. Just as prostitutes dissociate their bodies from their selves, surrogates dissociate the developing child from themselves. In order to mentally construct the child as someone who belongs to someone else, the surrogate makes her body into the property of the buyer.
Surrogacy contracts require surrogates to not form a mother-child relationship despite the fact that this relationship is biologically inherent to all pregnancy throughout its duration. All such contracts treat women as if they are inanimate objects – machines – not whole persons who bond, love, have emotions or any sense of moral, ethical, and emotional commitment to the children they bear. Given the bond that develops in the womb and how stress affectsthe development of a child in the womb the artificial severing of that bond has the potential to harm not only the mother but also the child’s emotional well-being.
In addition to the psychological havoc that commercial surrogacy can cause, it is also physically dangerous.
The short terms risks are the risks that all pregnant women face regardless of whether they are genetic or gestational (surrogate) birthmothers. Egg sellers face some but not all of these risks. These risks can include ovarian hyperstimulation syndrome (OHSS), ruptured cysts, ovarian torsion, bleeding, pelvic pain, infection, mood swings, premature menopause, kidney failure, stroke, and even death. OHSS affects women undergoing IVF who take injectable synthetic hormones to stimulate production of unnaturally massive numbers of eggs in the ovaries (women normally release one egg per month versus superovulation’s forced production of dozens of eggs). OHSS can also result from taking oral fertility drugs such as Clomid and Serophene. It causes rapid weight gain, severe abdominal pain, vomiting, shortness of breath, cessation of urination, chest pains, severe abdominal bloating, diarrhea, fluid collection in the lungs, tissues and abdominal cavity, blood clots, dehydration, digestive system malfunction and can result in death. Mayo Clinic Staff, Ovarian Hyperstimulation Syndrome, (August 3, 2017), http://www.mayoclinic.org/diseases-conditions/ovarian-hyperstimulation-syndrome-ohss/symptoms-causes/dxc-20263586
Egg sellers are preferred in surrogacy arrangements in order to legally and psychologically minimize the birthmother’s legal claim to the child. Egg sellers risk future infertility and cancer, most commonly ovarian, breast, and endometrial. Furthermore, both surrogates and egg sellers are pumped with drugs such as Lupron which is not FDA-approved for fertility use. Lupron is a drug that was developed for men with advanced stages of prostate cancer. Lupron produces the onset of menopause, potentially with incapacitating and long-lasting effects. Given the cozy relationship between Big Pharma and the FDA (the head of the FDA, Robert Califf, has extensive years-long ties to Big Pharma – the tip of the iceberg), there has been no interest on the part of either to investigate the drug’s safety or adverse effects. This, despite the fact that as far back as 1999, the FDA received adverse drug reports about Lupron from over 4,000 women. There have been no prospective or clinical studies on Lupron’s safety for ART patients. Lynne Millican, They Say Lupron Is Safe, Hormones Matter (May 13, 2017), https://www.hormonesmatter.com/they-say-lupron-safe/
There are no regulations of surrogacy brokers or infertility clinics as they relate to surrogacy in California from which this case arises. The statute merely authorizes enforcement of surrogacy contracts. In fact, it enforces the contracts regardless of what abuses are heaped on the woman and regardless of whether enforcement is contrary to the children’s best interests. There are no long term studies conducted on the health risks it produces, and no patient follow-up. A 2007 Institute of Medicine Report stated that “One of the most striking facts about in vitro fertilization (IVF) is just how little is known about the long term health outcomes for the women who undergo the procedure. Workshop Report, Assessing the Medical Risks of Human Oocyte Donation for Stem Cell Research, (2007) https://www.nap.edu/read/11832/chapter/2#4 Moreover, it is almost never stated that in the U.S., the failure rate of IVF is extremely high – 70% – according to the Centers for Disease Control & Prevention. Centers for Disease Control & Prevention, National Center for Chronic Disease Prevention & Health Promotion, Division of Reproductive Health 2007 Report Assisted Reproductive Technology Success Rates: National Summary & Fertility Clinic Reports (CDC December 2009).
High rates of multiple births produced by the implantation of several embryos – there are no caps to the number that can be implanted in the US – and infection resulting from IVF, place both surrogates and babies at high risk for complications. When problems arise during the pregnancy, the wellbeing of the child is given precedence over the health of the woman – money talks. Care of the surrogate ends with the birth of the child even when the woman who bears the child suffers lasting effects. Anecdotal evidence has been mounting for years from testimonies of women who have been surrogates or sold their eggs, information from clinics, documentaries, whistleblowing health care professionals, feminists, academics and journalists.
Women renting their bodies as surrogates or selling their eggs cannot give informed consent since they are not supplied with complete information. They are not told that no long term studies have been conducted on the health risks involved. Many, if not most, are not aware that there is no regulation of surrogacy or egg selling in the United States. They are not told that there is no national registry to provide a centralized repository for records, patient follow-up, and long term studies. Many are naively unaware that the commercial fertility industry has every reason to minimize the health, emotional and psychological risks given the enormous profits generated.
The number of surrogacy disasters could fill a book but just a brief summary of a select few serve to illustrate the harms surrogacy inflicts on women and their children.
1. A surrogate, Brooke Lee Brown, age 34, died on October 8, 2015 while carrying twins for buyers from Spain. Brown of Burley, Idaho died from either placental abruption or amniotic fluid embolisms. She was a mother of 3 boys and had served as a surrogate multiple times. The twins also died. Mirah Riben, American Surrogate Death: NOT the First, Huffington Post (October 15, 2015), http://www.huffingtonpost.com/mirah-riben/american-surrogate-death-_b_8298930.html
2. A surrogate identified only as Nancy from Ontario, Canada came extremely close to death in October 2015. She developed high blood pressure then congestive heart failure before she was put in a medically induced coma to save her life and those of the triplets she was carrying. Nancy told Canada’s National Post “Did I feel like an employee? Damn straight I did,” said the mother of five, who asked that her full name be withheld because of ongoing legal action. “Like a piece of trash. They used me and just threw me away like I was nothing.” Tom Blackwell, This Ontario Mother Wanted to Help Another, (October 15, 2015), http://nationalpost.com/g00/health/this-ontario-surrogate-wanted-to-help-another-mom-have-kids-it-was-a-decision-that-nearly-killed-her/wcm/24d8b74c-a7de-
3. Natasha Caltabiano, a 29 year-old surrogate from the UK, died on December 31, 2004 of abdominal aortic aneurysm. After giving birth to an eleven pound baby she died of a ruptured aorta 90 minutes later. She was a mother of two and engaged to be married. Her mother told the Daily Mail “Surrogacy caused Natasha’s death. People must realize that childbirth isn’t something you enter into lightly. It’s still dangerous but that is something surrogate agencies don’t go into.” Daily Mail, Surrogate Mother Dies After Giving Birth (January 29,2005), http://www.dailymail.co.uk/news/article-335871/Surrogate-mum-dies-giving-birth.html
4. The first known surrogate death occurred on November 12, 1987 in Texas. Denise Mounce was 24 years-old and her death was reported in The Record as “the first surrogate death.” Chesler, id. at 64.
5. In 2011, Carrie Matthews, a mother of four from Colorado, signed a surrogacy contract with a couple from Austria. The couple took the baby after Carrie gave birth and refused to pay her over $14,000 they promised to pay her upon delivery. Adding to the serious financial harm, the hospital where Carrie gave birth sent her a bill for $217,000. She also suffered grave physical harm, nearly dying after giving birth to twins. She developed pre-eclampsia and a syndrome which causes low platelets and elevated liver enzymes. The broker, Hilary Nelman, later pled guilty in a baby-selling ring that recruited surrogates then when they were in their second trimester of pregnancy, the fetuses were put on the market claiming that the buyers had backed out then sold the babies for $100,000 to $150,000 after they were born. Mikaela Conley, Surrogate Mom Stuck with a 200,000+ Medical Bill (October 27,2011), http://abcnews.go.com/blogs/ health/2011/10/27/surrogate-mom-stuck-with-a-200000-medical-bill/
6. In 2013, an Australian couple, Wendy and David Farnell, contracted with a surrogate in Thailand. The surrogate, Pattaramon Chanuba, became pregnant with twins, a male and female. An ultrasound revealed that the male fetus had Down syndrome. He would also be born with a congenital heart condition. The Farnells took the healthy baby girl back to Australia with them but left the boy “Baby Gammy” with his surrogate mother in Thailand. It was subsequently revealed that David Farnell had previously been convicted of molesting two girls yet he was still allowed to keep the purchased female surrogate baby. Paige Taylor, Gammy’s Dad Sex Offender David Farnell Granted Custody,(April 15, 2016), http://www.theaustralian.com.au/news/nation/gammys-dad-sex-offender-david-farnell-granted-custody/news-story/11bda4f050f12da08aade51f4c613b4b
7. In 2014, a surrogate became pregnant with twins in the UK and learned that the female fetus had Congenital Myotonic Dystrophy, a form of muscular dystrophy. The purchasing mother took the healthy baby boy but refused to accept his twin sister, telling the surrogate known as Jenny “She’d be a f-ing dribbling cabbage! Who would want to adopt her? No one would want to adopt a disabled child.” Jenny then took the baby girl named Amy. The surrogate’s partner Mark had to retrain for another career and take a pay cut so he could spend more time at home taking care of the disabled child. Mark said “How could we possibly sign over to somebody showing a disregard of the child’s health?” Jenny said “Amy is 100% our daughter.” Inderdeep Bains, I Don’t Want a Dribbling Cabbage for a Daughter, Daily Mail UK(August 26,2014), http://www.dailymail.co.uk/news/article-2734374/Surrogate-mother-twins-gave-birth-disabled-girl-told-woman-intended-child-didnt-want-dribbling-cabbage.html
Courts must take into consideration the special vulnerability of women in a patriarchal world where inequality, injustice and subordinate status are pervasive. For millennia, women’s human rights have been abused and ignored with impunity. As developments in biotechnology facilitate the commodification of women and the reproductive process we must remain vigilant about ways in which a woman’s human rights to dignity, to health and to a relationship with the children she bears are deliberately violated by an unscrupulous profit-driven surrogacy industry. These are significant rights and their deprivation through surrogacy arrangements should be examined by this Court. For these reasons the petition of Certiorari should be granted.
Michael P. Laffey
Counsel of Record
Messina Law Firm
961 Holmdel Road
Holmdel New Jersey 07733
August 23, 2017 Counsel for Amicus Curiae
15 feminist academics and advocates
LIST OF AMICI
AMICI FOR SURROGACY CASE
1. Dr. Francoise Baylis is Canada Research Chair in Bioethics & Philosophy at Dalhousie University Faculty of Medicine in Halifax, Nova Scotia. She has received the Order of Canada and the Order of Nova Scotia, is a Fellow of the Royal Society of Canada, and a Fellow of the Canadian Academy of Health Sciences. Her research is concentrated on women’s health and Assisted Reproductive Technologies (ART).
2. Dr. Paula Boddington is a philosopher and currently a Senior Researcher in Ethics at the University of Oxford. Over her career, she has taught and researched medical ethics, ethical issues in genetics, and feminist philosophy. She is a volunteer befriender with the UK-based charity Parents Against Child Sexual Exploitation (PACE).
3. Dr. Phyllis Chesler is an Emerita Professor of Psychology and the distinguished author of sixteen books, including classic feminist works such as Women and Madness and Sacred Bond: The Legacy of Baby M. She is a co-founder of the Association for Women in Psychology and the National Women’s Health Network.
4. Kajsa Ekis Ekman is a Swedish author, journalist and founder of Feminists Against Surrogacy. She is the author of Being and Being Bought: Prostitution, Surrogacy and the Split Self.
5. Clarissa Frankfurt, JD, is an international human rights attorney focused on feminist issues. She is based in Fribourg, Switzerland and has also practiced and studied law in Germany and the United States.
6. Dr. Maureen Hannah is a Professor of Psychology at Siena College and a licensed psychologist. She has published numerous books and articles addressing relationship dynamics, couples’ therapy, and domestic violence.
7. Dr. Michelle Harrison is a physician, academic, and pioneer in women’s health and women’s rights. She protested the exploitation of women in Baby M and testified on behalf of surrogate Anna Johnson, with articles and Op-eds in the Wall Street Journal and others. Dr. Harrison founded a home and school for orphaned girls in India and advocates for their protection.
8. Merle Hoffman is a women’s healthcare pioneer, writer and publisher. Two years before Roe v. Wade, Hoffman established one of the first legal abortion centers which is now one of the nation’s largest healthcare facilities. She also founded Choices Women’s Mental Health Center which specializes in the treatment of battered and abused marginalized women of color.
9. Dr. Donna Hughes is the Eleanor M. and Oscar M. Carlson Endowed Chair in Women’s Studies and a Professor of Gender & Women’s Studies, Sociology and Anthropology at the University of Rhode Island. She specializes in research, teaching, and policy on human trafficking and other forms of exploitation and violence. She is Editor-in-Chief of Dignity: A Journal on Sexual Exploitation and Violence.
10. Dr. Sheila Jeffreys is a British feminist scholar and Professor of Political Science at the University of Melbourne in Australia. She is the author of ten books on the history and politics of sexuality.
11. Dr. Renate Klein is an Australian academic, writer, publisher and feminist health activist. Klein is the author and editor of fourteen books, many of which explore reproductive technologies and the medicalization of women.
12. Dr. Barbara Katz Rothman is a Professor of Sociology at the City University of New York (CUNY) where she serves on the Doctoral Faculties in Sociology, Women’s Studies and Public Health. She teaches and writes in the area of bioethics with an emphasis on issues relating to pregnancy, motherhood, and the mother-child relationship.
13. Mary Lou Singleton, MSN FNP, is a midwife and family nurse practitioner whose medical practice, Enchanted Family Medicine, provides integrative primary health care to newborns, children, adolescents and adults.
14. Kathleen Sloan, MA, is an American feminist leader focused on the reproductive and sexual commodification of women and its violation of their human rights. She has been a leader of the feminist anti-surrogacy movement in the US for the last decade.
15. Dr. Bronwyn Winter is Associate Professor at the University of Sydney. The dominant themes of her research and teaching concern gender, sexuality, race, religion, and the state in relation to international discourses regarding human rights and violence in a “globalized” world.
“What we see in extreme transgender activism is what in previous generations would have been considered unthinkable: modern social outcasts, instead of being turned into the government and pop culture-abhorring Goths or punk rockers of the past, are instead now being repurposed to actually support official government lines and agendas regarding gender, the breakdown of families, and the erasure of sexual distinctions and associated protections. The aggression of the outcasts, which used to be turned against the state, is now being turned against enemies of the state and anybody that opposes its new reality warping transgender theories and laws. Trans-cultists are quickly beginning to resemble the brainwashed children in George Orwell’s 1984.”
What had happened was that Gloria walked in the front door of Synanon [for drug counselling] and they had gamed her right off. Someone, on purpose, had walked past her as she sat waiting to be interviewed and had remarked on how ugly she was. The next person to parade past had informed her that her hair looked like something a rat slept in.
Gloria had always been sensitive about her curly hair. She wished it was long … What the third Synanon member would have said was moot, because by then Gloria had gone upstairs to the tenth floor [to kill herself].
“Is that how Synanon works?” Fat asked.
Bob said, “It’s a technique to break down the personality. It’s a fascist therapy that makes the person totally outer-directed and dependent on the group. Then they can build up a new personality that isn’t drug…
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“Much of the current left wing liberal enthusiasm for cross-gender bathroom access, legalized brothels and commercial surrogacy requires an objectified view of women (and their resources) as a set of “services” that men should be able to acquire without any attendant commitment to them.”
Women’s bodies have always been have always been the focal point of patriarchy. Liberals and conservatives alike have both worked to ensure women don’t have bodily autonomy. As a result of patriarchy, women’s knowledge of and control over their own bodies has been wrested from us. We are forced to depend on male legislators, a male-dominated medical establishment, and Big Pharma, and woman-centered knowledge and practices, like self-abortion, menstrual extraction, other alternative forms of birth control, and woman-centered birth practices, are no longer common knowledge. While feminism has fought for women’s reproductive rights — for access to things like abortion and the pill — Mary Lou Singleton says we need to look beyond rights, and towards sovereignty.
WLRN’s Edition 16 podcast focuses on the money behind the medicalized transgender movement and the impact that the movement has on the lesbian community. We were inspired to these subjects by the canceled Left Forum panel that was set to explore them in detail. Our interviewees were all involved in that panel, and WLRN is proud to give them a platform after Left Forum silenced them.