In the last six months, I have received more requests about surrogacy and possible legislation than any other single topic. Meanwhile, I have watched through social media as a family from my hometown pursues their own IVF and surrogacy journey, years after the tragic loss of their young daughter. The distance between my world and theirs is real. In mine, commercial surrogacy is a form of baby-selling. In theirs, it is an answer to grief. The faithful Christians I grew up with continue to cheer this family on in prayer, and I understand the impulse. Their longing for a child is genuine, and aren’t Christians supposed to be the most pro-child people around?
So I wonder what they would say about Italy and Chile, which in June launched a campaign for a global moratorium on surrogacy? What would they say to UN Special Rapporteur Reem Alsalem, who last October called on all 193 member states to abolish the practice altogether, describing it as “a system of violence, exploitation and abuse against women”? Even the fertility industry that profits from these contracts has retreated to proposing its own “minimum standards.” More and more people are asking the question beneath it all: What, exactly, is being bought and sold?
After years of studying on this issue, one thing has become abundantly clear: An intrinsic moral wrong cannot be solved by a better regulatory framework, and it cannot be judged only by its best-case scenarios. Indeed, with surrogacy, it rests on a contract that commodifies a child as “special property” and severs him from the woman who carried him. Where a donor egg is used, it severs him from his biological mother as well.
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That is far from how most people imagine surrogacy, but it is how the law codifies it. As legal scholar Anthony Sirven has argued, “for surrogacy agreements to be enforceable, courts must treat the objects of these contracts—the IVF-conceived children—as something less than full persons so that the parties can exercise an ownership interest in them, even after they leave the womb.” Such a contract treats people as ownable, he notes, which the Thirteenth Amendment forbids.
The problem deepens when courts defer to these contracts even after the child is born. When the surrogate Melissa Cook bore triplets for a man alleged to be partially disabled and mentally unwell, the children were denied a “best-interest-of-the-child assessment” despite clear signs of neglect, because a contract had already named him their parent.
As federal law has determined, the only legal difference between a surrogacy contract and baby-selling is timing. Implant an embryo before a contract is signed, and it is baby-selling. Transfer the same embryo with a surrogacy contract in place, and it is permitted. It is, at best, a difference of degree, not kind.
It is the same logic Adeline Allen, a law professor at Trinity Law School, names when she likens surrogacy to slavery. The claim that a surrogate merely sells the services of gestation, she writes, is “disturbingly similar to the argument made by nineteenth-century proponents of slavery,” who insisted they dealt not in human beings but in their labor.
Florida’s attorney general reached for the same word this year, calling surrogacy “modern-day slavery,” echoing the 1988 “Baby M” decision, in which the New Jersey Supreme Court voided the first surrogacy agreement it ever heard. It found the payment of money to a surrogate mother “illegal, perhaps criminal, and potentially degrading to women.”
Heavy as that charge is, surrogacy rarely enters a congregation looking like slavery or baby-selling. It often looks more like a story that bioethicist Dr. Ben Mitchell shared at a recent launch event for the Anglican Bioethics Center.
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An unmarried woman at the church became pregnant, and some of the elders approached her to offer assistance and counseling, assuming the pregnancy was unplanned. To their surprise, she shared that it was not the result of sex outside of marriage, but part of a surrogacy agreement: She was carrying her sister’s child, given her sister’s struggle with infertility. The church had never addressed the issue, and the elders were left at a loss. What should Christians teach about surrogacy?
I explore that question more fully here, here, and here, but in brief, the answer begins where the Bible does. God established the “package deal” of marriage, sex, and children, so that bringing in a third party—whether a surrogate or a gamete donor—adds a third person to the exclusive and covenantal bond of marriage. While surrogacy relies on IVF rather than natural conception, it is akin to Abraham’s use of Hagar to produce a child outside of God’s promise.
Moreover, as Katy Faust explained at Christianity Today, Christians are called to defend children, look after orphans in their distress (which is contrary to the intentional creation of a child apart from their gestational even often biological mother), and defend the fatherless. In each case, the modern practice of surrogacy is at odds with God’s vision for the family.
This is why a wrong this deep cannot be regulated, only refused, and for the church that refusal begins with discipleship among the very families we know and love.
This piece originally appeared in WORLD