All Ways of Family Building are NOT Equal and Do Not Protect Child’s Rights

By Mirah Riben

There can be no keener revelation of a society’s soul than the way in which it treats its children.
— Nelson Mandela, Pretoria South Africa, May 8, 1995


Is having a baby that results from a loving relationship the same as having a baby being created via a business transaction?

woman with barcode on belly

Are a husband and wife with two kids a house and a dog, a single career woman who decides to be inseminated because time is running out for her to be a mother, a family who decides to foster one or more special needs children, and a gay couple who have a child via surrogacy all equal? Do all of these ways of family building put the needs of the child(ren) before the desires of the adults and are primarily in the child’s best interest? Are all equally accessible to people of all income levels? Is financial means, which allows for multiple options in both controlling reproduction and family building, a good litmus test for parenthood? Most importantly, do all “family building” options protect the rights of children?

Andy Cohen is the executive producer and host of the Bravo nightly series Watch What Happens Live with Andy Cohen, Bravo’s late night, interactive talk show, and hosts a two-hour live show with co-host John Hill twice a week. He is executive producer of the Real Housewives franchise, host of the television dating show, Love Connection, and a New York Times best-selling author.

When Cohen, fifty, single, and worth an estimated $15 million dollars, recently publicly announced that he was about to become the father of a child being born to a surrogate, the announcement was met with cheers of joy and accolades in the Hollywood community and the public.

Why? Why is his renting of woman’s body, buying the reproductive services, cheered? Why does anyone celebrate hiring a woman to act as a human incubator? Men who pay prostituted women for sexual access, even where legal, do not announce it In mainstream society and their friends and relatives do not cheer their choice. If one can afford it and enjoys it, why do we not share their pleasure in paying to use prostituted women girls, men and boys? Why does society condemn one and applaud the other? Yes, it is the impending fatherhood that is being celebrated, but does becoming a father make it so very different and justify the means? Where is the concern of those cheering him on for a child brought into the world to be raised by a man old enough to be his or her grandfather? Does his wealth make that OK, too?

Why has having a baby by any means become socially acceptable and a source of pride and joy? Please stop and think about this before having a knee jerk reaction. Andy Cohen is not adopting a child languishing in an orphanage in order to fulfill his desire to be a single dad. He is creating a human being from purchased gametes and having it gestated in a rented womb. The child will be motherless and live out his or her life knowing only half of its genetic medical history. Why celebrate that? Because it is his choice?

Why celebrate choice when creating a human being who has no choice in the matter? Think about that. Are children just “accessories” as has been suggested to describe celebrity adoptions?

There was a long time in our social history when having a child while single was a shame. Social workers and religious leaders deemed that children needed a mother and a father. One experiencing such a socially unacceptable event as being pregnant outside of marriage was scorned, hidden away, and expected to hand the baby over to married strangers rather than subject the child to being raised as an illegitimate bastard. Those were backward times and it is good that in America we no longer chastise single moms or their offspring. It’s also good that gay, bisexual, and transgender men and women are, for the most part, no longer subjected to hiding their truth.

But is there such a thing as going too far in our acceptance of differences when it comes to children and family creation? Is an “everything goes” attitude that allows men, women, single or coupled, of any age to decide from a menu of options which way to create or obtain a child that suits them, good for the children?

photo of three pregnant womenShould society prioritize the “rights” of adults longing to be parents over those of children? Is having a child – by any means – a “right” at all? In fact, despite the pain of infertility and the very real longing to parent, there is no right to have a child. Gay or straight, black, brown, or white, married or single, there is no right to a child via any means. No right to adopt and no right to pay for and use anonymous reproductive technologies. No one “owes” anyone a child and no one is more “deserving” of another’s child by virtue of having more material advantages.

Let me state unequivocally that it matters not one iota to me what Andy Cohen’s sexual preferences are. While I have concerns for the child a single 50-year-old man plans to raise, I would be equally opposed to the use of surrogacy if he were a married man of 50, or a woman of 30. I come at this issue as a human rights activist all of my adult life. I have been part of or supported sit-ins for civil rights, anti-war marches, gay pride parades, Black Lives Matter, Me Too, and immigration reform that recognizes a path to citizenship and provides a safe haven for refuges.

From that position of concern for social justice and equality, I focus first and foremost on the rights of those humans who are THE most vulnerable among us. More than women, more than people of color, and more than members of the LGBT community – all of whom experience discrimination and special circumstances which make them vulnerable – the most vulnerable humans of all are children. Children of all races and genders from birth until adulthood have zero agency, power, or control of their own. They are helplessly at the behest of adults to care for them and provide for their safety. It is thus that society provides safety nets for children because of their intrinsically vulnerable state. We set age limits on their right to drive and consume alcohol and consent to sexual activity, all to protect them from harm. Does not society need to likewise cautiously weigh the best interest of children being created to meet the desires of adults eager to “have” one?

Laws do, in fact, limit the ways in which people can obtain children. It’s a crime to steal or kidnap the child of another. Even if a child were found wandering the streets alone, one cannot simply snatch it up and claim ownership or parenthood. Nor is it legal to buy a baby from an expectant mom or mother no matter how overwhelmed or incompetent, neglectful, abusive, or indifferent to her child she may be (though both surrogacy and adoption laws – in many jurisdictions – allow payment of “expenses,” a practice which is far too lax and often only semantically differs from baby buying).

Society also steps in when married couples with children divorce and custody of their children is disputed. When such cases can become contentious to the point where family court judges must rule, every state in America uses the same criterion: the best interest of the children comes before those of any of the adults who may have selfish or other motivation that is not deemed best for their child(ren). Indeed, social services, a.k.a. child protective services, can step in and remove children from any parent(s) deemed unfit. (In fact, they are guilty without any trial or ability to prove their innocence.) This is another example of limitations set on an assumed “right” to parent.

Handmaids from The Handmaid's TaleAdopters are (theoretically, at least) vetted in an effort to screen out potential abusers who might use that means to acquire victims. But surrogacy by-passes all such home studies allowing only the ability to pay as the sole criterion. There are no gatekeepers to protect the children. No courts. No social workers involved in a decision like that of Andy Cohen to become a father by paying someone to risk their life being his handmaid.

Adeline A. Allen found that:

Gestational surrogacy, a contractual arrangement between commissioning parents and the woman who carries the baby in pregnancy (the birth mother), is big business. . . Although it is a deep-seated human desire to have a genetic child, the absence of whom can be deeply disappointing and painful, surrogacy contracts inherently dehumanize the birth mother and child.

Klein, R (2017) says that:

Pared down to cold hard facts, surrogacy is the commissioning/buying/renting of a woman into whose womb an embryo is inserted and who thus becomes a ‘breeder’ for a third party.

These concerns are in part why surrogacy – paid or unpaid – is banned or restricted in many countries. France, Germany, Italy, Portugal, and Bulgaria prohibit all forms of surrogacy; while in the UK, Ireland, Denmark, and Belgium, surrogacy is allowed only when the surrogate mother is unpaid, or only paid for reasonable expenses. Such restrictions are to protect women from being exploited by allowing their bodies to be “rented” and to stop what is akin to ordering and purchasing a baby. Bioethicists and feminists argue that it’s unethical to build businesses that rely on women’s reproductive capacities as breeders. Such bioethicists believe that “selling pregnancy as a service is untenable because it puts a price on human body parts and life. Commercial surrogacy, they note, results in the devaluation of women and children and the eventual degradation of society.”

Stop Surrogacy Now, an organization opposing surrogacy goes further stating:

Surrogacy often depends on the exploitation of poorer women as brood mares. In many cases, it is the poor who have to sell and the rich who can afford to buy. These unequal transactions result in consent that is under informed if not uninformed, low payment, coercion, poor health care, and severe risks to the short- and long-term health of women who carry surrogate pregnancies.

New Beginnings Surrogacy Services LLC, a surrogacy business that matches paying clients with women willing to be paid to provide them with a child, recognizes that:

Pregnancy and child-bearing are emotionally fraught topics. When the process takes place between two individuals privately, much is at stake. Add another individual to the mix as a surrogate carrier, the situation is exponentially complicated. Because of these tangled issues the United States is quickly becoming one of very few countries allowing surrogate pregnancies.

Wombs are not simply interchangeable. Vivette Glover, MA, PhD, DSc, (2011), for instance, discovered that:

The importance of development during the fetal period is well established with regards to the association between the baby’s growth in the womb, and later vulnerability to physical disorders such as cardiovascular disease and other aspects of metabolic syndrome. It is now becoming clear that environmental effects on fetal development are important with respect to emotional, behavioural and cognitive outcomes too. Animal studies have shown that stress during pregnancy can have long lasting effects on the neurodevelopment of the offspring.

The effects of maternal stress during pregnancy have long been extensively studied and recognized. Commercial surrogates are carefully screened to accept that the child they are carrying is not theirs. Surrogates and expectant mothers matched in private adoption are counselled to not think of the baby they are carrying as theirs, creating a huge stress on the physiology of pregnancy, especially for the neonate who has not signed nor consented to any contract and does not understand but suffers from the withdrawal of emotional attachment.

infant brain illustrationThis dichotomy between the physiological hormonal reaction to the pregnancy for mother and fetus and the mother’s attempt to do what she has been told to do create a major and stressful conflict. Body and mind are in battle creating many stressful hormones.

The one-sided legal contract that binds surrogates to conditions such as having to abort under certain circumstances, does not take into account that both the host mother and newborn suffer separation trauma. The pregnant woman’s body produces hormones that create bonding and milk that will go unused. The fetus becomes accustomed to the sounds, smells, heartbeat, and rhythm of the womb in which he grows and then experiences separation trauma.

The lifelong harm of newborn separation trauma is well documented.

It takes about 45 minutes for an infant separated from her mother to go into shock. [Primal Wound rage at the separation]. After rage comes despair then shock. This helplessness turns to hopelessness and a belief that the world is not safe. One cannot trust. Defenses against any future reoccurrence of these traumas [possible abandonment] are being put into place, many of which are almost impossible to eradicate from the psychological/neurological system.1

Dr. John Krystal, Editor of Biological Psychiatrynotes an awareness of “the profound impact of maternal separation on the infant” and adds that: “We knew that this was stressful, but the current study suggests that this is major physiologic stressor for the infant.”2

Dr. Sunderland (2015) explains that if separated, the infant has no language to ask why, express loss-abandonment, and goes on to explain that adolescents and teens who experience early relational (pre-language) separation are “way overrepresented” in counseling.

Catherine M. Lynch PhD, JD notes:

Minutes after birth, a baby can pick out his or her mother’s face – which he has never seen – from a gallery of photos…Their cries of pain are authentic. Babies react to the voices of their mother immediately after birth in a way they do not to the nurses present. Babies turn their heads and wriggle toward the mother’s breast following the scent of their mother’s milk. The baby has in no way, emotionally nor psychologically, separated from this mother: to the baby the mother is still “part of the Self, that core-being or essence of oneself which makes one feel whole.

Lynch also reports:

We assert that in the short term after birth, the loss of the birthing mother is suffered as a trauma: that babies are not psychologically nor emotionally separate from the mother, nor are they ready to separate physically from their mother. We testify that this premature maternal separation trauma’ is experienced as a profound loss of self as the baby instinctively sees their mother after labour, to see the nipple and suckle but instead experiences the mother, that part of the baby’s sense of itself as vanished, and felt as a kind of death.

We testify that this foundational profound experience of loss has long-term effects: in fact, life-long effects because the loss has occurred before long-term conscious memory has formed to help process the experience.

In addition, surrogacy, such as that employed by Andy Cohen, involves more than “just” purchasing the services of a “carrier” woman’s womb for nine months. It involves purchasing eggs. Both of these transactions pay people to risk their health and their lives in order to produce children with unknown genetic medical history, thus risking the lives of the children who have no say in any of it. Some amount of harm can be reduced by allowing the child to have a relationship with or at least know his or her surrogate mother. Allowing surrogacy ignores this documented damage.

Children born as a result of any anonymous third-party reproductive technology such as purchased egg or sperm are intentionally created orphans without any way to find their biological kin. Even if DNA can help them unravel their health risks, they are at risk for committing unknowing incest, especially when an infertility clinic services thousands of clients in the same geographic area. After all, one might easily feel an attraction to someone with similar traits or features.

Should a humane society put the rights of helpless youngsters first and foremost before those of any adults? Will we look back on this time in our nation’s history with the same disdain we now view the ostracization of single mothers and members of the LGBT community? Where do children’s rights fall in relation to the rights of all these others?

The 1989 UN Convention on the Rights of the Child (CRC) provides more rights for children than our U.S. Constitution but the US is the only nation not to have ratified the UNCRC and neither document addresses a right not to be contracted for or created via the sale of their genetic material or the rental of the womb they are gestated in nor a right to know their progenitors and their genetic medical history.

Will we continue down this path and invent artificial wombs, further denying neonates’ needs and creating human commodities? Are we totally obsessed with capitalism, consumerism, and entitlement of those who can afford to buy whatever they want that we are willing to ignore the harm? Or will we reverse this path and put the rights of children first and truly become a great and humane nation instead of a nation that caters to those who can afford to buy whatever they want –  even a human child?

1. Nancy Verrier, Coming Home to Self
2. Infant separation trauma has neurological effects documented by Allan Schore.

Mirah Riben is the author of two internationally acclaimed books, The Dark Side of Adoption (1988) and THE STORK MARKET: America’s multi-billion dollar unregulated adoption industry (2008), and more than 200 published articles.

Originally posted on Dissident Voice