Surrogacy Is A Form Of Slavery. It Should Be Abolished

One of the entirely foreseeable consequences of the Supreme Court’s 2015 Obergefell ruling legalizing same-sex marriage has been the rise of commercial surrogacy over the last decade, mostly for gay couples who want to raise children. If two men can legally marry, so the reasoning goes, and they enjoy equal rights as a married man and woman, then they should have the right to contract with a woman to carry an IVF-conceived child.

It doesn’t take a philosopher or an ethicist to see the potential problems with this arrangement, yet as a society we jumped into it with effectively zero public debate. Now, more than ten years out from Obergefell, the theoretical dangers of commercial surrogacy are very real, life-or-death problems.

One recent case, largely ignored by the corporate press, not only exposes the stomach-turning perversity of surrogacy but exposes it as a modern-day form of the slave trade that a civilized society should outlaw without exceptions. In what has become a complex and potentially unprecedented legal case, last month the Alaska Superior Court ruled that a California court could dictate the time and place a surrogate mother in Alaska will give birth.

The woman, McKenna West, contracted with a company called Worldwide Surrogacy Specialists last September to serve as a surrogate for a couple in California, identified in court documents only as A.B. and C.D. Twenty weeks into her pregnancy, a routine scan revealed the child, a boy, has a serious but treatable heart condition called hypoplastic left heart syndrome (HLHS).

Upon hearing this news, the California couple demanded that West get a risky late-term abortion, invoking an abortion-on-demand clause in their surrogacy contract. Since no doctor in Alaska would perform the abortion, the couple tried to force West to travel to Seattle for a two-day abortion procedure that would have involved dismembering the boy in utero. They threatened West, a single mother with two children, with a $250,000 lawsuit for breach of contract if she refused.

West refused anyway. She offered to simply cut ties with the couple, absolving them of any financial or custodial obligations, and either raise the child as her own or place it for adoption. Later, she offered to renounce all parental rights if the couple would at least agree to give the child lifesaving surgery.

But the couple rejected all these offers. According to court documents, they have instead discussed palliative care with their doctors—allowing the child simply to die instead of being treated with surgery, which would be required almost immediately after birth in order to survive.

Hoping to give birth at a hospital that specializes in pediatric cardiology, West moved to Texas, and is trying to gain legal custody of the child to ensure he receives the treatment he needs. The boy is due on September 3.

The case demonstrates what happens when human beings, in this case an unborn baby boy, are commodified and sold in the marketplace like any other piece of property. It is fundamentally and necessarily dehumanizing. The California couple believes they have the right to snuff out this boy’s life and that the woman carrying him in her womb has no say in the matter. They have a contract, after all. Money has been exchanged. The abortion clause has been invoked. The child must die.

This isn’t as uncommon as you might think. A similar case made the news in Canada recently when an Ontario couple demanded their surrogate abort the baby because of a cleft lip and possible genetic abnormalities. The woman refused, and the case is now in court. Because it’s Canada, the judge might well force the woman to have an abortion.

It’s easy to see, given scenarios like this, why early abolitionists adopted the slogan “no commerce in man” as part of their campaign against the transatlantic slave trade—and why later the fledgling Republican Party of the 1850s modified the slogan to “no property in man.” The idea was that human beings are not the sort of things that can justly be bought and sold on the market. They are not, and can never be, property. As such, property rights cannot be asserted over them as they might be over other things, and any political order that claims to uphold natural law and just government must reject the notion that there could ever be property, or commerce, in man.

The reasons for this should be fairly obvious. In order to allow for the buying and selling of human beings, whether unborn children or men and women taken from Africa, a society must deny their fundamental humanity and dignity, to say nothing of their rights. Such a society must maintain the elaborate legal fiction that some people may be bought and sold as goods, and that others may own or sell them as such. It must pretend that a clause in a contract can sanction the killing of an innocent child.

The only basis on which this fiction can rest is a yet more pernicious lie, indeed a monstrous one: that those who are bought and sold are not really human beings. They are something less than human, and as such have no rights. They can be disposed of however the “property owner” sees fit, for any reason or no reason whatsoever.

It’s not easy to keep up a lie like that. Eventually it poisons the society that indulges it. Even the colonial planters of Virginia, who relied on chattel slavery for their economic life, recognized this. Slavery, confessed William Byrd II in 1736, was a great evil that, among other things, “ruins the industry of our white people” and necessitates “being severe” with the slaves. Byrd was among those large planters who favored a parliamentary prohibition on the slave trade, which was eventually passed the U.S. Congress in 1807.

Today, we have to rediscover that which we once knew—and had to learn the hard way. Commerce in man nearly destroyed our country, and now it’s back under the guise of commercial surrogacy. It is every bit as dehumanizing and perverse as it was in 18th and 19th centuries, and if we don’t wake up and outlaw it, it will be every bit as destructive.

John Daniel Davidson is a senior editor at The Federalist. His writing has appeared in the Wall Street Journal, the Claremont Review of Books, The New York Post, and elsewhere. He is the author of Pagan America: the Decline of Christianity and the Dark Age to Come. Follow him on Twitter, @johnddavidson.