Is Surrogacy Next on the Right-Wing Chopping Block?
Is Surrogacy Next on the Right-Wing Chopping Block?
The Christian Right wants to ban much more than abortion -- and a recent statement from Pope Francis suggests that gestational surrogacy may be in its sights.
My daughter is a joyful, inquisitive, smart and sometimes bossy six-year-old who loves doing arts & crafts, creating outfits for her dolls, and building fairy houses for worms in the backyard. She is a lucky kid, with two parents who love and provide for her, a big backyard in the suburbs, and a great, integrated public school system.
To Pope Francis, however, she is the result of a “deplorable” act: gestational surrogacy.
Of course, everyone, pope or not, is entitled to their own opinion. But this is not a mere theological dispute, because the Pope also issued a call to ban surrogacy around the world. Not content with making a moral point, he wants governments to carry out his wishes. He wants families like mine not to exist.
Here’s what the pope said earlier this week, in a statement that was mostly about the challenges facing the world – violence in Ukraine, Gaza, Myanmar, Sudan, and elsewhere; climate change; poverty – but which also included this passage:
The path to peace calls for respect for life, for every human life, starting with the life of the unborn child in the mother’s womb, which cannot be suppressed or turned into an object of trafficking. In this regard, I deem deplorable the practice of so-called surrogate motherhood, which represents a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother’s material needs. A child is always a gift and never the basis of a commercial contract. Consequently, I express my hope for an effort by the international community to prohibit this practice universally. At every moment of its existence, human life must be preserved and defended; yet I note with regret, especially in the West, the continued spread of a culture of death, which in the name of a false compassion discards children, the elderly and the sick.
To my surprise, this statement – not a new doctrine but a strong, seemingly unprovoked reiteration of an existing one – devastated me. I would rather he spit in my face than denigrate my daughter in this way. It’s as if she’s some sort of abomination. How dare he?
But then I realized: this could actually happen.
Practical Theopolitics
Notice how the statement glides effortlessly from moral condemnation to a call for surrogacy to be legally banned. Doctrinally, this is hardly new; for around a millennium, it has been Church teaching that there is no such thing as the “secular.” Christian morality governs every aspect of human life, are applicable to every human on the planet, and are grounded in objectively true “natural law” which is as real as the physical laws of the universe. Every moral question has one right answer, and Church teaching contains it.
Even so, the statement moves so effortlessly from moral condemnation to a demand that the practice be banned, one might not even notice the elision. There’s not even a gesture toward the possibility that different faith communities, and secular ones, might reach different moral or political conclusions; or that pluralism might be its own morally positive value; or that tolerance of individual ethical reasoning might be, for some of us, a positive religious or ethical virtue; or that there should be a division between church and state.
Not a word.
This elision of the moral and the political has had real-world consequences of late, up to and including the overturning of Roe v. Wade. In the 1970s and 1980s, conservative Catholics brought anti-abortion principles into the heart of the Christian Right (even though Protestants had previously ridiculed them) and made embroys, blastocysts, and fetuses subjects of American law whose rights may trump those of the mothers carrying them. Initially frustrated by the Supreme Court, a network of conservative Catholic activists, including the now somewhat-infamous Leonard Leo, spent decades transforming the federal judiciary and installing conservative Christians (including Justices Thomas, Gorsuch, Alito, Kavanaugh, and Barrett) in positions of power within it. The results are well known.
To be quite clear, this is not some anti-Catholic conspiracy theory, because there is no conspiracy. Justice Amy Coney Barrett, former Attorney General William Barr, and many others have spoken quite openly and proudly about what they see as their moral-political mission, and how Church teaching and American values relate to one another; in Justice Barrett’s first law review article, for example, she wrote that “Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty,” even if the law called for it. And Barr has written that the principles of natural law are immutable and universally applicable, and that America is doomed if it diverges from them.
And now, armed with over $1 billion in new funding, and the highest honor awarded by Opus Dei, Leo has expanded his ambitions well beyond abortion. Once again, the agenda is not secret but spoken plainly. “The secularists are fine with Catholics in the public square so long as we don't, you know, practice our faith,” Leo said in 2022. “They want us to draw the curtains at home and keep it in the pews, and it remains to be seen how long they'll accept even that.” He described his adversaries as “barbarians, secularists and bigots.”
So what about surrogacy?
True to form, the conservative-dominated United States Conference of Catholic Bishops – which has lambasted the pope when he has taken more tolerant positions – quickly repeated and amplified this one. If recent history (and USCCB statements) are any guide, surrogacy is likely to take its place in the Christian Right’s post-Roe agenda, alongside banning contraception, same-sex marriage, transgender existence, and no-fault divorce.
But gestational surrogacy could jump to the front of the line, since, unlike contraception and divorce, it has never been found to be a constitutional right. There are no precedents to overturn – just laws to be passed. My prediction: while only three states prohibit surrogacy today, I predict that number will triple by the end of this year.
So this is what haunted me. Families like mine will be banned from ever existing, in states across the country, even though many of us have religious (and non-religious) beliefs that gestational surrogacy is a positive ethical act.
Let’s turn to that question next.
2. Factual Morality
In describing gestational surrogacy as it is practiced today, the pope’s was profoundly wrong, deeply offensive, and, I think, dishonest.
To be sure, the practice of gestational surrogacy is indeed susceptible to abuse and exploitation, with women renting out their bodies as a way to escape poverty – or worse, being pressured to do so by their families. The practice must be closely regulated to ensure the safety, dignity, and autonomy of women who choose to be surrogates – and to ensure that they are actually making that choice.
But simply because a system may be exploited does not mean that it is itself exploitation. And our experience was nothing like the hellscape that Pope Francis describes. We worked with a female- (and mostly queer-) owned agency in Oregon. There were numerous, detailed legal agreements in place to protect our surrogate’s rights (all of which we paid for, of course). There were numerous checks in place to monitor and protect her health, which was prioritized above all else. We met with our surrogate before, during, and after the pregnancy, and had a warm, lovely relationship with her. Even today, we are still in touch occasionally. Moreover, after her experience with us, she chose to be a surrogate a second time, both for the financial benefit and because, she said, it was so good to be able to help us build a family.
In other words, nothing that the statement says about surrogacy was actually true in our case. My daughter was not an “object of trafficking.” There was no violation of the “dignity of the woman and the child.” There was no “exploitation of situations of the mother’s material needs.” There was a consensual agreement between adults that is, frankly, none of Pope Francis’s or the government’s business. Not only was no one harmed, but on the contrary the relationship we built together carried moral, spiritual, and emotional benefits, as well as financial ones. It was not transactional; it was personal. Speaking as a rabbi, it was one of the most beautiful, morally positive, and religiously uplifting periods of our lives.
Again, I am under no illusions that every surrogacy relationship is like this, and would support all kinds of rules and regulations to protect vulnerable women. I also share the feminist concerns about the “use” and exploitation of women’s bodies in principle as well as in practice, and can respect a personal, principled opposition to surrogacy on that basis – just as I can respect a personal, principled opposition to abortion. But such positions should be based in reality, not ignorance, and should not be imposed upon other people who have reached different moral conclusions. Just as pea-sized embryos are not “babies,” so too surrogacy is not “trafficking.”
Surely Pope Francis must know all this. Whatever the merit of his philosophical argument, his factual claims are obviously wrong. And if he knows this, that makes his statement profoundly dishonest. This is not a charge to be made lightly, of course, but it would not be new; other popes have uttered falsehoods regarding women, same-sex relationships, sexual abuse in the Church, and a host of other subjects.
Again, it’s one thing to make a moral statement about a given act. But to say, as a factual matter, that surrogacy is a ‘grave violation of dignity’ based on ‘exploitation of situations of the mother’s material needs’ is simply inaccurate, just as it was inaccurate to say that, as a factual matter, a certain stereotypical and warped depiction of some gay lives is what all gay lives are like. (Parenthetically, the gestational surrogate is not the biological “mother”; my daughter’s other biological parent was an egg donor. But of course, the Catholic Church doesn’t validate that either.) Moralizing is one thing, making willfully wrong statements of fact is another.
And the final insult: that gestational surrogacy, which brings life, builds families, and creates more love in the world, is part of a "culture of death.” That statement can only be sustained if one is so lost in the ivory towers of Thomist theology as to be blind to the reality of the lives that surrogacy enables. My child is part of a culture of death? The world would be better off if she had never been born?
I have written warmly of other statements by Pope Francis. His remarks on climate change the excesses of capitalism, and the rights and dignity of same-sex couples have broken new ground in the Church, much to the consternations of conservatives who have worked tirelessly to oppose him. Indeed, it may be that this uncalled-for statement was itself meant to shore up support among such conservatives after a controversial statement that gay couples may be “blessed” (though not wed) in church.
But none of that justifies these dangerous lies about the ways families like mine have come into existence. It was a nasty, mean sucker punch of a papal statement, and I think it will lead to even nastier legislative action, as we’ve seen happen in regard to trans populations over the last year. To my surprise, it actually hurts.
But a funny thing just happened. Just as I finished that last paragraph, my daughter ran into my office. “Daddy, will you play with me?” she asked. I gave her a hug and said yes.
Hi everyone — The newsletter crossed a nice threshold this week, with over 1,000 subscribers having signed up in the first four months of its existence. That is really gratifying! Thanks for subscribing, for paying for subscribing, and even just for reading.
My long-form analysis of the Trump Constitutional Crisis has been published (at last — I’ve been working on it for awhile) in Rolling Stone. I did my best to put everything in one handy place.
And at the other pole of my work, the audiobook of The Secret that is not a Secret has just been published — read by yours truly! You can listen to a short clip here. On January 21, I’ll be doing a chitchat about the book in Montclair NJ with Forward Chief Editor Jodi Rudoren and Rabbi Julie Roth — details are here. There’s a nice interview with me up now at Havurah magazine.
Hope you’re holding up alright. Exploring silence and shared solitude with 50 folks at the Adamah Meditation Retreat was really nourishing for me. Even in the depressive gray of January, luminous awareness (whatever that is) is accessible. See you next week.