Chapter Two—
Surrogate Mothering and the Meaning of Family

Surrogate mothering and contract pregnancy are terms that describe one of two arrangements. Either a woman agrees to be artificially inseminated with the sperm of a man in order to bear a child for him and his wife and is compensated for her services. Or eggs are harvested from one woman, fertilized in a petri dish by her husband's sperm, and implanted in the womb of another woman, who brings the resulting fetus to term and is compensated for her services.

How are we to understand such arrangements and the principles or values they reflect? For some commentators, the important fact about surrogate mothering is that it allows women to assert their bodily autonomy and to claim jurisdiction over their own procreative power. Surrogacy contracts thereby enhance the liberty of women. Moreover, in supplying a womb and, in most cases, the egg that grows there, women provide sterile couples with procreative freedom and options they could not have without them. Since these women thereby offer a service similar to what semen donors provide, principles of equality demand that they be compensated in the same way.^[1] For others, however, pay for pregnancy, and, indeed, its equation with a particularly alienated form of fatherhood, devalues motherhood. Far from reflecting liberty or equality, surrogacy is a form of exploitation in which middle- and upper-middle-class couples fulfill their most fundamental desires by commodifying the

bodies of poorer women and buying their babies as merchandise.^[2] For the most part, the debate over surrogacy has thus proceeded as a debate over the meaning of motherhood and the autonomy and equality of women. For critics of the practice, surrogate mothering violates principles of equality and liberty because of the exploitation and commodification it involves of both women and children. Moreover, its attitudes toward childbirth ignore the special character of women's work and are part of the cultural undervaluing of women's labor in general.^[3] For supporters of surrogate mothering arrangements, however, doubts about the practice reflect a patriarchal ideology that itself violates principles of both equality and liberty because its sole purpose is the control of women's sexuality and capacities for reproduction.^[4] Moreover, surrogacy presents women with new roles as mothers and nurturers, extending these relations beyond those of biology alone.

Despite these different orientations toward the principles and values involved, however, the presumption in each case is that, once we give women their due as equal and autonomous agents and as mothers, we will also know how to understand surrogate mothering. Either it promotes women's liberty and equality or it obstructs them. Either it encourages women's value as nurturers or it denies it. Yet suppose that there is no one correct or appropriate way to understand mothering or the relation between pregnancy, child birth, and liberty or equality. In this chapter, I want to look at the meanings mothering and women's roles have been thought to have in order to suggest that a resolution to the debate over surrogacy may lie elsewhere. Indeed, I want to suggest that the issue of surrogate mothering may have less to do with autonomy, women, and mothering than with the character of family relationships. By raising this possibility, I do not want to point necessarily to a neoconservative version of family values. Rather, both traditional and nontraditional families seem to me to share a meaning that can shed light on the issue of surrogate mothering, as well as on the issues of custody to which surrogate mothering arrangements often lead. To clarify this meaning, I want first to indicate the problems involved in associating the issue of surrogate mothering solely with a focus on women and the value of mothering. I shall then turn to what seems to me to be a crucial characteristic of family relationships, one that our debates about surrogacy has thus far ignored, I think. Because the question of surrogate mothering is associated for most Americans with the case of "Baby M," I shall begin with it.

Surrogacy and "Baby M"

In February 1985, Mary Beth Whitehead and her then-husband Richard Whitehead contracted with William Stern to bear a child conceived from Mary Beth Whitehead's egg and William Stern's sperm. According to the terms of the agreement, Whitehead was to be artificially inseminated with semen collected from Mr. Stern. She was to carry any resulting fetus to term and was not to obtain an abortion except at the wishes of Mr. Stern. Neither Whitehead nor her husband were to "form or attempt to form" a parent-child relationship with any child she conceived under the terms of the agreement; both were to terminate all their parental rights upon the birth of such a child and, moreover, "to sign all necessary affidavits prior to and after the birth of the child and voluntarily participate in any paternity proceedings necessary to have William Stern's name entered on said child's birth certificate as the natural or biological father." In return "for services and expenses," William Stern was to pay the Whiteheads $10,000 upon the birth of a live child as well as all medical, hospitalization, and pharmaceutical expenses not covered by the Whiteheads' insurance policy. If Whitehead miscarried before the fifth month of a pregnancy, she was to receive no compensation other than expenses; if a child were stillborn, she was to receive $1,000 in addition to expenses. Finally, if William Stern died either before or after the birth of a child under the terms of the agreement, that child was to be placed in the custody of his wife, Elizabeth Stern.^[5]

On March 26, 1986, Whitehead gave birth to a baby girl and decided to keep the child, reneging on the terms of the surrogacy agreement. The Sterns went to court and were granted temporary custody on May 5, 1986. Before they could retrieve the baby, Whitehead left New Jersey with her family and the baby and disappeared for three months, after which time the baby was placed in the Sterns' custody. On March 31, 1987, the New Jersey court upheld the validity of the surrogacy contract. It awarded full custody to the Sterns, allowed Elizabeth Stern legally and immediately to adopt the child, and terminated Whitehead's parental rights. On February 8, 1988, however, the New Jersey Supreme Court reversed the lower court on the legality of the contract. It restored Whitehead's parental rights and also granted her visitation rights but allowed the Sterns to retain custody of Baby M following normal custody disputes' standard consideration, which looks to the best interest of the child.

The New Jersey Supreme Court found "the payment of money to a 'surrogate' mother illegal, perhaps criminal, and potentially degrading to women." The payment, it said, was for the "the sale of a child or, at the very least, the sale of a mother's right to her child, the only mitigating factor being that one of the purchasers is the father." The surrogacy agreement assumed that an agreement on adoption could be made prior to birth, "even prior to conception," and this assumption violated standing adoption law as well as custody practices. As the court continued:

The surrogacy contract violates the policy of this State that the rights of natural parents are equal concerning their child, the father's right no greater than the mother's. . . . Under the contract, the natural mother is irrevocably committed before she knows the strength of her bond with her child. She never makes a totally voluntary, informed decision, for quite clearly any decision prior to the baby's birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally voluntary. . . . Worst of all, however, is the contract's total disregard of the best interests of the child. There is not the slightest suggestion that any inquiry will be made at any time to determine the fitness of the Sterns as custodial parents, of Mrs. Stern as an adoptive parent, their superiority to Mrs. Whitehead or the effect on the child of not living with her natural mother.^[6]

The court also considered the longtime effects on a child's discovering that "she is the offspring of someone who gave birth to her only to obtain money." And it discussed Whitehead's predicament: "She was guilty of a breach of contract, and indeed, she did break a very important promise, but we think it is expecting something well beyond normal human capabilities to suggest that this mother should have parted with her newly born infant without a struggle. Other than survival, what stronger force is there?" Moreover, it asked, "how much weight should be given to her nine months of pregnancy, the labor of childbirth, the risk to her life, compared to the payment of money, the anticipation of a child and the donation of sperm?"^[7]

Some feminists applauded this decision as a victory for the equality of mothers with fathers and for the right of a mother to keep her children. But for others, it seemed to rest on a stereotypical conception of a woman's biological role, on a particular view of what motherhood involves, and on an attempt to exert ideological control over the significance and scope of women's reproductive capacities. This analysis of the higher court's decision understands it in part in terms of the context of

the historical response to artificial insemination by donor (or A.I.D.), of which surrogate mothering remains a species. On reflection, the analysis turns out to be difficult to dismiss.

The worry that A.I.D. elicited at its start was that it was a form of adultery,^[8] a crime traditionally considered to be much more significant when perpetrated by a woman than when perpetrated by a man. In Jewish law, for example, an adulterous wife must divorce her husband and must not marry her lover, while a husband's adultery is not by itself grounds upon which a wife can seek a divorce. In England until the mid-twelfth century, a husband was allowed to kill both an adulterous wife and her lover. And even though the passage of the Custody of Infants Law in 1839 in England finally granted women the right to retain custody of children in a divorce, this right could be rescinded if the woman were found guilty of adultery. Indeed, in some states of the nineteenth-century United States adultery was not defined in terms of sexual relations between people of whom at least one was married. It was rather defined more specifically as the sexual relation between a married woman and a man who was not her husband.^[9]

Artificial insemination by donor was understood by many as just this sort of relation. In 1921, a Canadian court argued that the real crime of adultery involved "the possibility of introducing into the family of the husband a false strain of blood,"^[10] and it decided that, on these grounds, artificial insemination by donor constituted adultery. In 1954, the Superior Court for Cook County, Illinois, agreed, calling A.I.D. "contrary to public policy and good morals" and defining it as adultery on the part of the mother. In 1960, the Feversham Committee in England found A.I.D. to be a threat to the institution of marriage and society as a whole. Any children issuing from the practice were to be considered illegitimate and the entry of the mother's husband's name in the Registry of Births an offense. "Succession through blood descent," the committee argued, "is an important element of family life and as such is at the basis of our society. On it depend the peerage and other titles of honour and the Monarchy itself."^[11]

Given this general understanding of the disproportionate crime of a woman's adultery and the relation between it and A.I.D., doctors who artificially inseminated women usually did so under the condition that the insemination remain a secret. In his analysis of the practice in 1957, A. M. C. M. Schellen explicitly recommended that sperm donors remain anonymous. Moreover, he insisted that doctors performing insemina-

tions should make concerted efforts to match a donor's physical characteristics with those of the mother's husband and that any children conceived through A.I.D. should never be informed about the way or by whom they were conceived.^[12] Schellen claimed that his recommendations followed at least in part from the continuing ambiguity about the legal status of the procedure, as well as from fears by donors that they would be held legally responsible for any children born by A.I.D. unless their contributions remained secret.

Still, in part Schellen's recommendations also followed simply from the adulterous connotations he seemed to think the procedure possessed. For instance, with other medical ethicists he argued that if a donor's identification were not kept secret a woman undergoing artificial insemination by donor might transfer her affections to the donor or, alternatively, her husband might pursue him in a jealous rage because he thought she had transferred her affections.^[13] Opponents of A.I.D. in fact argued that "the true human love of a woman expressed itself in wanting her husband's child," while the desire for "just a child" reflected an animal urge.^[14] Accordingly, Schellen calls any unmarried woman who wants a child through artificial insemination "guilty of ruthless selfishness" since, by definition, she cannot be motivated by the desire to have her husband's child. Moreover, he claimed, such a woman "can have little true love in her heart."^[15]

What does this set of reactions to artificial insemination by donor mean for the case of surrogate mothering? If the desire to bear any child, as opposed to the desire to bear one's husband's child, is evidence of an animal urge, what must be evidenced by the desire to bear a child one does not intend even to keep? If the artificial insemination of a married woman who wants to bear and keep a child is tainted with the connotation of adultery, how must the artificial insemination of a surrogate be considered? Finally, if a woman willing to undergo A.I.D. to bear a child "can have little true love in her heart," what must be said about the woman who is willing to undergo A.I.D. for money? Schellen himself called surrogate mothering "artificial prostitution," an "ugly" word, he admitted, but one, he thought, well suited to the practice.^[16]

The flip side of understanding surrogate mothering as artificial prostitution is defining what are to count as the legitimate feelings and desires of what might be called "real" women and mothers. If a woman wanting a child with no genetic relation to her husband betrays an animal urge, then real or properly human women and mothers are those

who are solely interested in bearing their husband's children; they are certainly not those who are interested in bearing the children of someone else's husband. Moreover, real women and mothers are those who serve as the fountain of familial affection to whom all instrumental rationality and monetary considerations are foreign. Real women cannot want to enter into agreements that affect the most tender aspect of their being just for the sake of money, and if they are forced into such agreements by circumstances beyond their control it would be unreasonable to expect them to abide by any promises they made.

Such reasoning betrays clearly essentialist assumptions about what a "real woman" is. She is one who defines herself as her husband's wife, his children's mother, and the source of family love and care. But this reasoning also bears a suspicious similarity to that of the New Jersey Supreme Court. In a sense, by being unable to comply with the terms of the surrogacy contract Whitehead redeemed herself as a legitimate woman and mother. The payment Whitehead was to receive was payment for the sale of a mother's right to her child. Yet a natural mother cannot know "the strength of her bond with her child" before it is born. Indeed, no force is stronger. Hence, a woman cannot make an "informed decision" in consenting to the sale of her rights prior to the birth of her child, and if she does so consent she must do so only under duress, financial hardship, or emotional self-delusion. The promise Whitehead broke is a promise neither she nor any real or legitimate woman or mother could be expected to keep. Instead, it is one only artificial prostitutes incapable of true human love could keep, and by showing herself unable to do likewise Whitehead merely proved her status as a woman and mother, as incapable of alienating her nurturing responses as natural mothers in general must be.

In part, because they thought the New Jersey Supreme Court's decision contained these sorts of presumptions about women and mothers, some feminists firmly rejected it and supported the lower court's ruling instead. In their estimation, while the higher court focused on the emotional responses of women and dismissed the ability of women to take responsibility for their contractual commitments,^[17] the lower court upheld both the personal liberty of a couple who sponsors a pregnancy to form a family and the surrogate's freedom to choose to perform her services under a contract. If a surrogate father is allowed under the law to sell his sperm, a surrogate mother must, as a matter of equal protection of the law, be allowed to sell her reproductive services. Moreover, the

lower court ruled, monetary damages could not possibly compensate William Stern for the loss of his child, and therefore the court was within the law in ordering specific performance of the original contract.

The lower court may have found no reason to assume that surrendering a child is necessarily more emotionally painful for women than giving up a child born of their sperm is for sperm donors. Alternatively, it may have thought that surrendering his particular child was as emotionally painful for William Stern as surrendering hers was for Mary Beth Whitehead. Yet, despite the support this appeal to principles of equality received from certain feminists, the lower court's reasoning can also be understood to follow from ideas about the autonomy and responsibility of women, the character of real mothers, the thrust of A.I.D., and the meaning of surrogacy similar to those from which the New Jersey Supreme Court's decision can be understood to have issued. Surrogate mothers typically describe their motivations for entering into pregnancy contracts with childless couples as, at least in part, altruistic ones. They depict their actions as attempts to do a good deed for others and to give something of themselves, in the light of which the monetary gain is entirely secondary. As one surrogate mother describes her motivation, "I'm not going to cure cancer or become Mother Theresa, but a baby is one thing I can sort of give back, something I can give to someone who couldn't have it any other way."^[18] Such self-descriptions might be seen as attempts to lift surrogate mothering out of the subhuman domain of artificial prostitution and into the more respectable domain in which women's traditional tenderness and concern for others holds rule. To be sure, these self-descriptions might themselves be understood as evidence of a patriarchal ideology that buys into a specific idea of what women and mothers are supposed to be. Rather than simply representing themselves as autonomous agents with desired services to sell, then, surrogate mothers must themselves hold onto traditional conceptions of women's social role and psychology. They must understand themselves as generously giving of themselves to others rather than as attempting to earn money for purposes of their own.

But the outrage the lower court in the Baby M case evinced when Whitehead tried to renege on the surrogacy contract seems to follow from this same understanding of what constitutes a real woman and mother. The court did not simply uphold the validity of the surrogacy contract. It also vilified Whitehead's mothering capacities and questioned her child-rearing methods, her relations to her other children, and her sanity. In these respects, it relied on the expert testimony of psy-

chologists such as Dr. Marshall Schecter who attributes to Whitehead a "mixed personality disorder." She suffered from a "borderline personality disorder," he claimed, as evidenced in part by her handing the baby out a window to her husband to avoid the baby's being taken by the Sterns, from a "narcissistic personality disorder," as evidenced in part by her dyeing her prematurely white hair, from a "histrionic personality disorder," as evidenced in part by her functioning as the dominant force in her marriage, and from a "schizotypal personality disorder," as evidenced in part by her talking about paying off debts that, in Schecter's opinion, she could not possibly pay off given her and her husband's "present vocational and educational training." When Schecter also claimed that she played "patty cake" incorrectly and mistakenly gave the baby stuffed animals to play with instead of pots and pans, a group of women and feminists released a letter to the press declaring that "by these standards we are all unfit mothers."^[19]

Nevertheless, the vitriolic response of the court, its expert witnesses, and even the press to Whitehead's actions may have stemmed in part from the surprising selfishness those actions seemed to reflect. If surrogates in particular and women in general are meant to be selfless, giving people to whom the monetary compensation for their services is a secondary good, then a surrogate's selfishness in trying to keep the child she bore is deeply troubling. In making an arrangement with a surrogate, a contracting couple implicitly relies not simply on her desire to earn money but on her willingness to help and on her traditional tendency to sacrifice her interests for the best interests of others, particularly her children. Yet in trying to keep the child, a surrogate simultaneously indicates that she really is not interested in the money and also that she is not interested in helping or sacrificing her own interests. Her actions thus cannot be considered those of a legitimate woman and mother but only as the acts of a selfish impostor.

The surrogate mother is thus demonized both coming and going. On the view of women and mothers that both court decisions seem to adopt, a woman's function lies in creating the conditions for the good of others. if she is willing to be artificially inseminated with the sperm of someone other than her husband and if she does not even intend to keep the child thus conceived, then two interpretations of this willingness seem to predominate. On one interpretation, it is evidence of an unseemly and even adulterous economic interest and the woman's status as a respectable being can be rehabilitated only if she reneges on the surrogacy agreement. A woman's connection to her child is not only sacred but socially

required. If she can so easily give it up, if she is interested in not only bearing the child of a man other than her husband but also giving the child up to this other man, she must be something less than a woman and certainly not a real mother.

According to the other interpretation, a surrogate who reneges on her pregnancy contract is doubly damned. She has entered into a slightly adulterous relationship and now selfishly wants to keep the product of that union, although she had promised it to others. Hence, if a surrogacy contract is upheld, it may not be for the reasons feminists could support, because it enhances what they understand as women's freedom and autonomy, but rather because the traditional role of women and mothers in providing for the good of others requires that they sacrifice their interests in this instance, as in most others. Indeed, Phyllis Chesler suggests that this notion of women's role is behind many cases besides surrogacy in which biological mothers give up their children because they are told that, given their circumstances and the best interests of their children, they would be selfish if they did not.^[20]

"In a Different Voice"

A particular interpretation of women's natural role, emotional character, and capacity for autonomous choice, together with a particular view of what mothering is, lies, then, at the bottom of the prosurrogacy view of the lower court and the antisurrogacy argument of the higher one in the Baby M case. Either we condemn the practice of surrogate mothering and the couples who seek to gain children through it as an attempt to suspend the natural feelings of women and mothers toward their own children and the meaning of childbirth in general. Or we condemn as unnaturally selfish surrogate mothers who try to keep their children in violation of both their children's own best interests and the strongest expectations and hopes of the couple who initiated the surrogate arrangement. In the first case, a surrogate's autonomy lies in recapturing and acting on the tender feelings of natural women. In the second case, it lies in the voluntary character of a gift relation in which she does her best for others. Still, at the heart of both court decisions is a similar assumption that there is one canonical and proper way to understand women and mothering and one proper and canonical way for women and mothers to be.

An interpretive dogmatism similar to that of the courts seems to pervade the feminist surrogacy debate that looks to women's moral voice.

What has come to be called "difference feminism" tries to show the way in which women's roles as mothers and nurturers serve as a source of moral strength rather than solely as the ground of an emotional weakness impervious to the claims of reason, autonomy, or contractual agreement. Yet this second idea of women and the meaning of real mothering leads to the same attempt to establish a canonical view of who women and mothers are or ought to be as the first view taken by the courts. Moreover, it leads to the same opposition between prosurrogacy and antisurrogacy arguments.

The idea that women's traditional social roles and emotional psychology might be sources of moral strength rather than weakness is the conception most famously connected with Carol Gilligan's In a Different Voice .^[21] Beginning with Nancy Chodorow's account of typical child-rearing practices in which women function as the primary parent for young children,^[22] Gilligan argues that this circumstance means that little boys must model themselves on a largely absent father and in opposition to their primary parent, while little girls model themselves on the primary, mothering parent and grow up in connection with her. Hence, issues for the self-identity of little boys and, later, men are their autonomy and rights as independent agents, while issues for little girls, and later women, are separation and loss of connection.

This difference issues in a difference in the structure of moral thinking. For what Gilligan calls an ethics of justice, which she associates with a masculine form of thought, central questions concern what rights are due to individuals and how the equality between individuals can be preserved. On Lawrence Kohlberg's moral scale, this form of moral thinking occupies the highest rank and women typically score much lower. But Gilligan contends that women simply tend to think about moral issues in a different way: not in terms of preserving individual rights and equality but in terms of preserving human connection. In considering moral dilemmas, women tend to think less about rights than about their responsibilities to both self and others, less about abstract principles of justice than about the good of the concrete other.

In a well-known example of this difference, Gilligan considers the dissimilarities in the answers two children, Amy and Jake, give to the "Heinz dilemma." According to the terms of the dilemma, Heinz's wife is critically ill, but the druggist who is selling the drug that can cure her is selling it at a price too high for Heinz to afford. The question the psychologist poses to the two children is whether Heinz should steal the drug. Jake answers yes and continues, "For one thing, a human life is

worth more than money, and if the druggist only makes $1,000, he is still going to live, but if Heinz doesn't steal the drug, his wife is going to die." Amy, however, answers no. "I think there might be other ways besides stealing it, like if he could borrow the money or make a loan or something, but he really shouldn't steal the drug—but his wife shouldn't die either."^[23]

According to Gilligan, the situation presents itself to Jake as a mathematical problem in which the possible death of Heinz's wife outweighs the druggist's monetary gain. But the horror of the situation for Amy lies not as much in the inequality of possible outcomes as in the druggist's lack of responsiveness to and solidarity with Heinz. "Her belief in the restorative activity of care . . . lead[s] her to see the actors in the dilemma arrayed not as opponents in a context of rights but as members of a network of relationships on whose continuation they all depend."^[24] For this reason, Amy's solution to the problem is one that does not involve restoring the proper relation between life and profit but rather one that involves continued communication, a feel for the complexity of the situation, and a willingness to be both responsible and responsive to all the individuals involved. "The truths of relationship . . . return in the rediscovery of connection, in the realization that self and other are interdependent and that life, however valuable in itself, can only be sustained by care in relationships."^[25]

How does this analysis affect the attempt to understand the meaning of surrogate mothering? At first glance, it may seem to tip the balance of argument against a prosurrogacy position. According to an ethics of care, the traditional role women possess in functioning as the reservoir of emotional connection in families and relationships is not to be considered proof that they are impervious to reason or incapable of maintaining voluntarily initiated contractual agreements. Rather, it is proof of a different voice in morality. This voice, moreover, is one that would seem to strike out against severing a gestational or a genetic mother's bond to her child or indeed demanding, as the Stern–Whitehead surrogacy contract demanded, that she not even form such a bond. Rather, sustaining and strengthening human bonds lies at the core of women's general ethical response to others and holds, as well, of her relation to the fetuses she carries to term.

From this point of view, what is crucial to any pregnancy is the way in which a pregnant woman becomes what Mary Shanley calls a "person-in-relationship." This characterization holds, for her, of all gestational mothers, whether they are also the genetic mother of the fetus or not. The

"embodied" relationship is one of which no one can predict the course and which is "stronger than that between the commissioning parent(s) and fetus or between [the surrogate mother's] own 'intentional self' and the fetus prior to conception." Hence, according to Shanley, a legal rule enforcing a pregnancy contract "would reinforce notions of human separateness and insularity rather than recognize that the development of individuality and autonomy takes place through sustained and intimate human relationship."^[26] As Elizabeth Anderson puts the point in an echo of the New Jersey Supreme Court:

The demand to deliberately alienate oneself from one's love for one's own child is a demand which can reasonably and decently be made of no one. Unless we were to remake pregnancy into a form of drudgery many women who do sign a surrogate contract will, despite this fact, form a loving attachment to the child they bear. . . . Treating women's labor as just another kind of commercial production process violates the precious emotional ties which the mother may rightly and properly establish with her "product," the child.^[27]

On this view, the care and concern that distinguish women's moral voice act against any commodification of pregnancy or, indeed, children and also against those considerations of autonomy and justice embodied in the notion of contract. Children "enter the world in a relationship," Barbara Katz Rothman writes, "a physical and social and emotional relationship with the woman in whose body they have been nurtured."^[28] This relationship does not rule out the possibility of abortion. Rather, for both Shanley and Rothman, the relationship between fetus and gestational mother is the relevant relationship with regard to either a decision to abort or a decision to carry a fetus to term. The decision-making capacity of the mother, just because she is the person-in-relationship, cannot be rescinded by the state, the father, or the "commissioning" parents. Still, the relationship of care and concern that a mother has for her child does rule out the commercial values associated with surrogate mothering. As Thomas H. Murray writes,

If adults flourish best in enduring, warm relationships, and if caring for children also contributes to the flourishing of adults, then we should encourage practices and policies that support such relationships. To the extent that the dry view of human flourishing implicit in market place values shrinks our perceptions and undermines our support for family life, it threatens not merely children but adults as well.^[29]

But if an ethics of care thus seems unequivocally to oppose the validity of pregnancy contracts, it is noteworthy that the legal scholar Carmel

Shalev turns to Gilligan in her case for the validity of surrogacy contracts. The linchpin of an ethics of care, in her understanding of it, is responsibility for self and others. It is a concern with the network of relationships for which one is responsible and not simply a concern with individual rights. But responsibility includes responsibility for one's decisions in the social context in which they are made. If one takes both notions of responsibility together—responsibility for others and responsibility for commitments made—then surrogacy contracts must, in Shalev's view, be understood as results of the responsible decisions of responsible agents thinking through and in the context of a network of relationships. For their part, the rights involved or the determination of what can and cannot be properly established can be determined only in terms of the responsibilities the contracting parties have adopted:

In the ethic of passion and care, interest is the correlative of responsibility, which focuses on the decision-making process of the person whose contemplated action may affect the interests of others. . . . Autonomy replaces liberty to denote the act of choosing responsibly, acknowledging the social context in which a choice is made and the decision maker's ability to affect others as much as self through any chosen action.^[30]

The feminist controversy over surrogate mothering thus seems to result in the same two positions with regard to surrogacy as the legal one. Moreover, it does so because of a common view of what women's moral voice and relationship to motherhood mean. The association of women with an ethics of care is either the result of an unreflective and even essentialist understanding of women's natural function as mothers or the result of a feminist and reflective understanding of an important moral voice. In either case, however, there remain two alternatives. Either surrogacy arrangements devalue the proper attachment of natural mother and child, as Anderson and the New Jersey Supreme Court believe, or they adequately represent women's responsiveness to the good of others who can therefore rely on their contractual integrity, as Shalev and the New Jersey lower court argue. Either surrogacy arrangements undermine women's moral voice by subordinating an ethics of care to the marketplace equivalencies of an ethics of justice or they enhance women's moral voice by showing the way an ethics of care undergirds relations of responsibility. Both sides appeal to what they take as a canonical conception of women's nature and moral voice. Significantly, however, this appeal does not seem to decide the issue of surrogacy one way or the other. In the remainder of this chapter, I would therefore like to move away from this exclusive understanding of women and mothers to look at the

character of family relationships in general. My idea here is that the debate over surrogacy might be amenable to a kind of resolution if we no longer assume that mothering has only one meaning and, moreover, expand our horizon to consider a dimension of family participation that encompasses mothers, fathers, and children.

Surrogacy Contracts

In her defense of surrogacy, Shalev rejects any equation of an ethics of care with what she considers sentimental notions of motherhood or attachment and associates it, instead, with a conception of responsibility to self and others. Fundamental to this conception, in her view, is the expression of intent. Those individuals who express the intention to become parents—whether through traditional means or through adoption, contracting with a surrogate, or agreeing to artificial insemination—count as the real parents of the child in question and the responsible parties in the web of relationships they create. They must be the decision makers, and their intentions and decisions are the ones that must be supported by law. Because what counts here is the intention to become a parent, responsibility must be decided at conception or as close to the time of conception as possible. In the case of adoption, this requirement means that women who agree to give their children up must abide by their original decisions to do so without the customary option of changing their minds within a certain period of time. In the case of surrogate mothering, the requirement means that pregnancy contracts must be considered valid and courts can require specific compliance.

In this latter case, what Shalev calls the "sponsoring couple" takes over responsibility for the pregnancy itself, as well as for any children resulting from the surrogacy agreement. This stipulation means that in cases in which a fetal abnormality is detected it is the sponsoring couple's decision as to whether or not the pregnancy should be terminated. Shalev denies that this stipulation, one written into the Stern–Whitehead surrogacy contract, violates a woman's constitutional right to an abortion. According to her interpretation of Gilligan, rights can follow only from responsibilities, and responsibilities turn on the network of relevant relationships. These relationships differ crucially enough in the case of surrogacy from those in the case of a nonsurrogate pregnancy to alter the constitutional issues at stake:

The surrogate's constitutional privacy consists in her personal authority to make a reproductive decision that specifically anticipates the dissociation of

biological from social motherhood, supplemented by her capacity to enter legally effective contractual relations that determine the allocation of the child-rearing responsibility, regardless of gender and biological connection. The sponsoring parents have similar authority to make reproductive decisions and effectuate them by means of contract.^[31]

It is a consequence of Shalev's view that sponsoring parents cannot themselves renege on pregnancy contracts in the event that a baby is born with significant deformities. They can, of course, give the child up for adoption, as can any couple with regard to an infant they do not want, but the sponsoring couple remains legally responsible for the child until that time.^[32] Still, it also seems to be a consequence of Shalev's view that a biological father cannot be required financially to support a child he has fathered unless he specifically agrees to or intends to function as the child's father. Child support might be legitimately required of fathers (or "deadbeat dads") who initially have either explicitly or tacitly expressed their intentions to enter into a father–child relation. Nonetheless, under a "consent–intent" conception of parenthood it does not seem that fathers can be legally compelled, as they are under some current law, to support children whom they fathered through sexual intercourse with their mothers but never intended to father.

But such laws illuminate an important aspect of our understanding of the meaning of a family. The idea is that, in the absence of an explicit agreement that transfers legal and financial responsibility from one parent to the spouse of the other, biological parents should help support their children once they have them, whether or not they wanted or intended to have them. Moreover, this idea seems to rest on the notion that families, even nontraditional families, constitute sets of relations that are not always intended or chosen. We do not choose our children or our parents any more than we choose the person with whom we fall in or out of love. We do not become pregnant just because we decide or intend to do so; nor can we yet either control the sex of our children or pick their personalities. To be sure, we are able to realize some intentions with regard to some of these factors, and emerging birth technologies promise even more intentional control than we have had thus far. To a certain extent, we can decide when not to be pregnant by using various methods of birth control or by having an abortion. We can even abort fetuses if their sex is not the one we wanted. We can decide to have little to do with the people who turn out to be our parents, and we can narrow the range of possibilities for falling in love. We can also take positive action to fall in love or become pregnant, and we can rely on the medical pro-

fession or single associations to help if we are having trouble. Finally, we can even choose to have a child without becoming pregnant.

Still, none of these strategies results in or even promises total control over the situation. And this lack of ultimate control seems, in fact, to correspond to a significant aspect of our understanding of family. For while Shalev's conception of contracting to be a parent rests on the intentions and control of sponsoring parties, at least part of what it seems to mean to have or belong to a family is just to lose control. Families are less things that we create or contract into than relationships or the consequences of relationships that happen to us both as parents and, perhaps more obviously, as children.^[33] As parents, our responsibility for our children, whether we discharge it by raising them as best we can or by trying to secure a better home for them than the one we can supply, does not depend on our original intention to have or not to have them. It depends only on the children's existence and this seems to be the state of families in general. Whether we intend them or not, exercise our procreative rights or not, give birth to the children we imagined or not, the salient fact about a family is not the intentions—and thus not the contractual control—that may or may not initiate it. Rather, the salient fact about a family relationship is the fact that it simply exists.

It is important to be clear about what sort of consideration is being advanced here. Anderson's opposition to surrogate mothering arrangements condemns the forms of valuation such arrangements impose on women's reproductive labor and children. On her view, surrogacy commodifies women's labor because it both subsumes it under production-line values appropriate to the creation of salable merchandise and underestimates the value owed to the ongoing relationship between mother and fetus. Hence, surrogates are supposed not to form the kinds of attachments to their fetuses that are proper and part of our social practices surrounding pregnancy. For their part, the children of surrogates are denied what is due them: namely to be loved and cherished by their parents. As Anderson puts her point, "the fundamental calling of parents to their children is to love them. . . . Parental love can be understood as a passionate, unconditional commitment to nurture one's child, providing it with the care, affection, and guidance it needs to develop its capacities to maturity."^[34] A surrogate mother, in contrast, uses her child only for "personal advantage" while the commissioning parents treat it as a commercial product.

But if families are relationships that happen to us rather than entities that we intend or can contractually control, as Shalev assumes, it seems

equally odd to legislate the proper form those relationships are supposed to take. Certainly, a mother cannot know what her bond to her child will be before it is born, as the New Jersey Supreme Court argued. But the bond with her infant seems only the beginning of what a person cannot know. She cannot know how the existence of the child will change her relationship to its father, her work or career, her parents, or herself. Nor can she know that changes in these relationships will be determined by the strength of her attachment to the child. It may be the opposite. If a surrogate mother cannot know that she will not feel a powerful bond with the fetus she is carrying or with the child to whom she gives birth, neither can a mother who intends to keep her child know that she will feel such a powerful bond.

Of course, she may "intend" to feel a connection, and it may be either "proper and correct" that she does, as Anderson maintains, or specifically proscribed, as the Stern–Whitehead pregnancy contract demanded. In neither case, however, are family relationships dictated by what philosophers or contracts find proper and correct. Rather, it seems to be a crucial aspect of their meaning that they spill out beyond anything we can control, intend, or imagine. In one case, the strength of a surrogate's bond with her newborn infant may make it impossible for her to surrender it as agreed upon in a preexisting pregnancy contract. In another case, the continuing strength of the surrogate's commitment to other goals may mean that it is not difficult at all.^[35] But if at least part of the meaning of family relationships is that they go beyond our intentions, then these results would seem to be consistent with that meaning and to preclude the law or philosophy from issuing any one set of criteria for the appropriate content of the relationships at stake.

In the conflicting attitudes we have explored toward surrogacy and mothering, the proper relation of a natural or birth mother to her child has been understood to be one of four different possibilities: (1) an attachment that cannot be sundered even under contract because of the proper feelings of real women and mothers; (2) an attachment that requires sundering under certain situations, among which surrogacy is included, for the good of the child to which a proper mother is committed; (3) an attachment that, even in a surrogacy arrangement, attests to a pregnant woman's ethics of care and sense of self-in-relationship; or (4) a lack of attachment in a surrogacy arrangement that attests to the pregnant woman's ethics of care and sense of self, autonomy, and responsibility. But if by family we mean a set of relationships that happens to us, then why must mothering have only one meaning? Rather, all four

of these possibilities would seem to be possible permutations of human relationships and possible interpretations of the meaning of motherhood, our sense of self, and the ideas of autonomy and responsibility. None of the permutations can be foreseen or prohibited by philosophy or contract, just as none of the interpretations can be excluded by philosophical or legal principle.

Are we mothers only if we can take up a certain social and emotional relation to our fetuses (and even abort them only because we know what is best for our "relationship")? Are we mothers only if we value our children in some proper way and know how to guide them to maturity? Is there a difference between these pronouncements and those of a Schellen according to whom only certain kinds of motherly love are human or of a Schecter according to whom only certain ways of playing children's games are expressions of adequate mothering? There seems to be an obvious danger in pronouncements such as those that Anderson and Shalev make that only certain feelings and relations will qualify as motherly or womanly and that, if one does not have these, one is either the artificial prostitute that Schellen originally condemned or simply irresponsible. Anderson writes:

Children are properly loved by parents and respected by others. Since children are valued as mere use-objects by the mother and the surrogate agency when they are sold to others, and by the adoptive parents when they seek to conform the child's genetic makeup to their own wishes, commercial surrogacy degrades children insofar as it treats them as commodities.^[36]

But parents have children for all sorts of reasons and value them in all sorts of different ways, whether they expected to or not. Was it improper for parents of earlier generations to want children in order to guarantee help on the farm or sustenance in old age? Is it improper to have a child to increase the chance of finding a bone marrow match for another of one's children?^[37] And even if these roles counted for or against wanting children, could the parents involved not value them in other ways as well? And might not a woman be a very different kind of mother to the children she lives with, those she gives up for adoption, and those she bears for others?

These considerations seem to confirm the idea that what is importantly at issue in the question of surrogacy is neither the strength nor the proper direction of a woman's or mother's emotions. Nor is the issue one of finding the one conclusive answer to the meaning of mothering or care in general. Rather, the more crucial issue may be the strength, nonintentional nature, and multiple character of family relationships in general.

Because we recognize that these sorts of relationships can evade our intentions, we do not require couples to remain married, even though they have signed a contract to do so. On this ground alone, it is unclear how we could hold surrogate mothers to a higher standard.^[38] But it is also unclear how we could prohibit surrogacy contracts as a mode of improper valuation. Certainly some modes of relating to children or to our responsibility toward them are morally and legally unsustainable. Notable here is child abuse. But it is not clear that surrogacy does not reflect one of the many morally sustainable variations in human relationships and family connections.

If we cannot prohibit surrogate mothering on the grounds that it reflects an improper mode of valuing children, nor, for similar reasons, is it adequate to conceive of contract pregnancy as simply an ordinary form of contract. Given the unpredictability of family relationships, any contract pregnancy can spill over the legal barriers with which we surround it. What are we to do, therefore, when a surrogate, whether the biological or gestational mother, tries to keep the child she formerly agreed to relinquish and the "sponsoring parents" refuse to relinquish their intention to have it? What about Baby M? In this case, custody remains with the Sterns but Mary Beth Whitehead has liberal visitation rights. If we begin with the idea that family relationships are unintended and that we must begin with respect for some of the different paths that mothering, family relationships, and nurturing roles can take, then we might take this resolution to be supportable. Indeed, why not admit that the child might have two mothers and even two fathers and that all the parties involved might learn to cope and even flourish with that arrangement? It would not have been one they intended, but they might get on with it nonetheless.

This sort of solution seems to be the one a Vermont court used in settling the adoption case of "Baby Pete." In this case, a woman became pregnant by her husband in the midst of divorcing him. Claiming that her current boyfriend was the father, she severed her parental rights and gave the child up for adoption without the actual, biological father's knowledge. Upon discovering that his former wife had given birth to a son, the father sued to regain custody. The court and the parties involved compromised. The adoptive mother retained physical custody and now shares legal custody with the biological father.^[39]

In general, this sort of solution might be our guide, for it seems to comply with much of what we consider a family to be, something, pace Shalev, that is either entirely unintended or, in any case, surpasses any

intentions we could have had. At the same time, it also takes seriously a conception that Shalev endorses, namely that we need not sever old relationships to guarantee the strength of new ones. What the advent of open adoption, surrogacy, and new birth technologies seem to ask us to reject is not any way of valuing the sanctity of family life but merely that partial account of families according to which they properly consist only of biological parents and their children.^[40] Where this situation is not possible it must be outwardly imitated by closing adoption records, keeping semen donor identities secret, and so on. But why might one's family not be defined as that group of people who have a special concern for one, those that do have the "calling" or commitment to one that Anderson thinks anyone bringing a pregnancy to term must have: namely, the "passionate, unconditional commitment" to nurture one and to provide one "with care and affection"? Some part of this idea is certainly involved in our colloquial use of "family" to refer to our closest friends. In the general case, the set of people with a special concern for one may be one's nuclear family, whether biologically related to one or a family "by adoption." Or the set of people might be slightly larger, including both of one's remarried parents with their present partners and assorted former stepparents as well. But in other cases, the set of people might involve one's custodial parents and one's biological parent or one's custodial parents and one's gestational mother who served as their "surrogate," or even one's mother, her partner, and their sperm donor.

The point here is that neither law nor moral philosophy should determine which family relationships we can have to which people, as the lower court tried to do in the Baby M case. Rather, they should be trying to understand and facilitate the family relationships that we already have. That is, our guiding question might be how the laws and principles to which we adhere can help us cope with family relationships we may have never intended but that turn out, for various reasons and in various ways, to be integral to who we are. These relationships may not be those simply between parent and child. Rather, if I am a surrogate mother who wants to maintain a relationship to the child I bore for another couple, a relationship I might not have intended to establish at the outset of the contract pregnancy but which I now take as seriously as I take my life, the function of law in this case might be that of helping me with a relationship with the sponsoring couple and, likewise, helping the sponsoring couple with a relationship to me. If I am the biological father of a child whose mother put it up for adoption without my intending or knowing of its existence, the law might help me deal with the relationship

that has grown up between the child and its adoptive parents, and, likewise, it might help them deal with my relationship to the child so that all of us are able to retain a place in his or her life. None of these complex relationships between parent and child or sets of parents might have been intended. But if law or moral principle has any role in this predicament, it would seem to be to help us muddle through the network of family relationships that has happened to us, since this is both what a family is and, moreover, what we shall have to do in any case.

Since the publication of Gilligan's book, feminists have wondered whether its conception of a woman's moral voice does not define what are to count as normal female attitudes in a way as restrictive for women as any of the traditional stereotypes. To the extent that critics of surrogate mothering seem to sanction only certain sorts of womanly or motherly sentiments or forms of attachment, this worry seems justified. But if we emphasize, instead, the notion of an ethics of care as sustaining and nurturing many different forms of human commitment and solidarity, then I think we can understand it to concur with the view I am advocating here. Contested surrogacy agreements as well as contested custody arrangements indicate the extent to which relationships thwart our original expectations. In certain cases such as wife-battering, child abuse, and parental neglect, we require the legal system to enforce restraining orders and set restrictions on the possible contact between members of a family. But the circumstance that the law must restrict relationships in these cases does not mean it should either restrict them or define them in all others. Controversies over custody in surrogacy cases, as well as in divorce and adoption cases, often set two sets of competent parents against one another. Perhaps what we require of the law (or philosophy or, indeed, child psychology) in these cases is not some way of deciding which is the more legitimate relationship. Rather, since both already exist, although in different ways, what we may need is help in sorting through their complexity and making them work.

The sort of solution I am advocating for cases in which a surrogate mother reneges on her contractual agreement with a sponsoring couple thus also provides a plausible framework, I think, for resolving other recent custody disputes. In the Jessica Deboer case, the Michigan Supreme Court, after a lengthy and complicated legal battle involving both Iowa and Michigan courts, decided against the legitimacy of the relationship between Jessica Deboer and her adoptive parents with whom she had lived for the two and half years she had been alive. It decided, instead, for the sole legitimacy of her genetic relationship to her biological par-

ents, even though her biological mother had initially agreed to the adoption.^[41] In the Kimberly Mays case, a Florida court decided for the legitimacy of the relationship between Kimberly Mays and her custodial father and against the sole or even compelling legitimacy of her biological parents with whom she had never lived because of a mix up at the hospital where she had been born fourteen years ago. Finally, a Virginia court decided against the legitimacy of the relationship between a boy and his lesbian biological mother, granting custody to the boy's grandmother instead.

What is curious about all of these cases is not only their contradictory outcomes but the idea that the court should be involved in determining which of two relationships is the sole legitimate one in order to bring them under the sort of intentional and contractual control they have already superseded. If we begin instead with the definition of a family relationship as that which is essentially out of intentional or contractual control, then in none of these cases would the function of the legal system be to pass judgment on the legitimacy of one relationship over another. Rather, it would be to find a way of accommodating different legitimate claims, securing the different kinds of genetic and custodial relationships that already exist—as long, of course, as these relationships do not involve a history of neglect or abuse.

In advocating this sort of solution, it is important not to ignore the difficulties it involves. The idea of supporting all the different legitimate family relationships that exist need not extend to cases in which parents have voluntarily surrendered their parental rights and, hence, in the terminology of adoption, "abandoned" their children.^[42] Once an adoption has been finalized with the consent of both birth parents, the adopting parents can be secure in the knowledge that it is on the way to establishing a family. Still, a more perplexing problem seems to arise with the idea of joint custody, insofar as it is often hard enough to agree with one's partner—presumably someone one trusts and likes—on what is best for one's children. It will be potentially much more difficult if physical and legal custody are split as they are in the Vermont solution or if "sponsoring" parents must consult or even listen to a surrogate mother they neither trust nor necessarily like. This problem does not seem to admit of a general answer. But a distinction that Jürgen Habermas makes between two functions that law might play seems relevant. One function seems to be illegitimate. This is law as a "system mechanism" under which it invades preexisting relationships by requiring them to conform to general regulations in the interest of an efficient operation of the

economy and governmental bureaucracy.^[43] Prime examples of this function of law are those parts of the social welfare system that, whatever their benefits, also require the reorganization of family relationships and other group solidarities to meet general bureaucratic criteria for dispensing services. But we might also extend this conception of law to cover the way in which family law enters into and defines legitimate family relationships by severing the parental or visitation rights of nonabusive parents and overturning standing adoptions or custodial arrangements without consideration for the family relationships that exist.

The other function of law Habermas terms law as institution. Here, it does not enter into the substance of relationships as much as guarantee their compliance with established legal rights. Hence, it would seem to be a legitimate function of law to promote the safety of women and children in families and to limit visitation rights where they involve child abuse. But it remains an illegitimate function for law to decide what constitutes a family or a compelling relationship. Why should it be the instrument through which we try to regain the control we thought moral theory or contractual agreement would give us? Why should it not, instead, facilitate the variety of relationships in which a child and his or her various sets of "parents" might already be involved?

Attempts to resolve the debate over surrogate mothering start from the assumption that mothering is to be understood in one "correct" way. Real mothers behave only in certain ways, possess only certain attitudes, and are subject only to certain emotions. Philosophical analysis and explicit contracts are to tell us what these correct contours of mothering are, and our analysis of legitimate family relationships will follow from these legal and philosophical determinations. But this account of mothering, philosophy, and the law seems unable to integrate an important part of what we consider a family to be. If families are relationships that overflow our intentions at every turn, then philosophical or contractual determinations can neither produce nor eliminate them. Nor is it clear how they might determine which are legitimate. Rather, family relationships seem to resist the intrusions of philosophy and law because they include a kind of limitless variety and are subject to constraint only at the boundaries of injury, neglect, and risk of death. But if this resistance holds, then law and philosophy might rather help us with the family relationships we have and with the potential joint custody of children with different sets and kinds of family relationships.

In the next three chapters, I want to extend the idea of accommodating legitimate differences from custody disputes over children to disputes over the meaning of principles we share. If the case for accommodation in certain custody disputes rests on the dubious legitimacy of the law's attempts to decide between two sets of equally competent and caring parents, then perhaps the question that arises in some of our other public debates is whether the competing sides in these discussions are also equally legitimate. If they are, can we, in a multicultural, diverse society, sometimes envision joint custody for certain of our norms and values as well as for our children? In Chapter Three I shall be specifically concerned with the meaning of principles of equality and equal opportunity as these principles figure in the current debate over affirmative action policies. While critics of these policies now assert exclusive claims over the meaning of these principles, interpreting them only in terms of a principle of strict racial, gender, and ethnic neutrality, I shall be arguing that their interpretation might, more plausibly, acknowledge the equal legitimacy of an interpretation that stresses the participation and integration of all races, genders, and ethnicities in the institutions and practices of American society.