Surrogacy, Same-Sex ‘Marriage,’ and the Thirteenth Amendment
By Robert G. Marshall
The Supreme Court’s same-sex marriage decision affirmed that same-sex couples must have the same “constellation of benefits” as traditionally married people:
“The right to marry . . . draws meaning from related rights of ‘childrearing, procreation.’”
While social elites have embraced the Court’s Obergefell decision, Mother Nature still exhibits a complete indifference to providing for procreation by same-sex couples. Not being deterred by “the Laws of Nature or Nature’s God,” the Court nevertheless proclaimed a “right” to childrearing and procreation for LGBTQ individuals interpreted to legally justify the right of same-sex couples to procure children through commercial surrogacy.
Even though commercial surrogacy advocates claim they are merely reimbursing women for their “services” as gestational mothers, surrogacy contracts which are enforceable in state courts require the actual delivery, not simply the carrying, of a child to the “Intended Parents.” In other words, the payment is finally to obtain the child.
The 1988 New York Surrogacy Task force notes,
“Many Task Force members view surrogate parenting as indistinguishable from the sale of children. . . . Euphemisms like . . . ‘the provision of services,’ developed in part as marketing techniques . . . to obscure the nature of the transaction. The intended parents do not seek a pregnancy or services as the ultimate object of the arrangement; they seek the product of those ‘services’—the child.” (p. 118-119)
Connections Between Same-Sex Marriage and Surrogacy
The 2017 New York State Surrogacy Task Force, reversed its 1988 opposition to surrogacy: “The 2011 legalization of same-sex marriage statewide by New York State and nationwide in 2015 by the U.S. Supreme Court . . . has been followed by claims that ‘marriage equity’ requires the state government to assist married couples to get children by enforcing contracts for commercial non-genetic ‘gestational’ surrogate child-bearing, or even . . . to enforce such contracts for adults other than married couples.”1
For three years the Uniform Law Commission chaired by Sen. Jamie Pederson of Washington State worked on “model” state laws providing for commercial surrogacy. King 5 Seattle TV (4-26-18) reported, that “Pedersen and his husband have four children through surrogacy, but had to work with an out-of-state surrogate in order to pay her.” (They went to California which has liberal surrogacy laws.)2
Pederson noted that the UCC model law came about, “in light of the United States Supreme Court’s marriage equality decision. The new Parentage Act will help protect same-sex couples and their families.”3
Similarities between Slave Women and Gestational Surrogates
The Greek historian Thucydides said several centuries before Christ that “justice exists only between equals in power.”
The class of women eligible to be paid as gestational surrogates in Washington state is structured towards women who have less power and wealth than persons purchasing their “services.” The Washington law does not require that surrogates must speak, read, or comprehend English. And because of amendments to the bill which were rejected by Democrats, the following will be eligible as surrogates: women in state or federal jails or prisons, those receiving public assistance; those who have an intellectual disability, or mental illness; illegal aliens and persons unable to comprehend contracts without the aid of an attorney. Intended parents of the children to be provided can be single, or need not be married to each other.4
The Washington state law which is offered as a model for other states does not require the surrogacy contract to be written in the language of the surrogate carrier!
Visiting Harvard Law Professor Anita Allen writes, “Before the American Civil War, virtually all southern Black mothers were, in a sense, surrogate mothers. Slave women knowingly gave birth to children with the understanding that those children would be owned by others. . . . Affluent white women’s infertility, sterility, preferences and power threaten to turn poor Black women, already understood to be a servant class, into a ‘surrogate class.’ . . . Without a per se ban on commercial surrogacy, it is not clear that poor and Black women can be protected from the risks of surrogacy arrangements.”5
Women offering themselves as surrogates are mostly poor with less education. In the US between 20-50%
“are military wives . . . needing extra income. Most are of modest income, between $16,000 and $30,000 a year. Payment to the birth mother for the surrogacy contract tends to be around $20,000 to $30,000. Meanwhile, the whole process costs about $90,000 to $150,000 for the commissioning parents.”6
Thucydides was a prophet.
Surrogacy and Baby Selling
The Committee report on Washington bill 6037 states, “A person may not enter into a surrogate parentage contract for compensation, and any such contract is void as against public policy.” Yet, the actual law as passed (Sec. 704) provides,
“A surrogacy agreement may provide for Payment of consideration and reasonable expenses; and Reimbursement of specific expenses.”
Also, under the Definitions (Sec. 102) reproductive gamete donors may be paid. The Report does not say what expenses are “reasonable,” nor identify which specific expenses may be included or excluded. Previously, Washington State law only allowed for non-commercial “altruistic” gestational carriers.
Section 712 provides that, “A gestational surrogacy agreement . . . is enforceable. . . . for . . . Breach of the agreement by a . . . gestational surrogate,” when the baby is not given to the intended parent or parents.
The updated law uses the term “child conceived” 28 times and the term for contracts, “surrogacy agreement,” is used 58 times. Every commercial surrogacy contract in Washington or elsewhere has provisions which require the woman (the “mother”) to deliver a baby she carried upon agreement with an “intended parent” or parents providing monetary payments to the surrogate who then must provide the intended parents “a child conceived by assisted reproduction.”
Substitute “Volvo” for “child,” and even news reporters can see this is a sales contract.
In very simple words, Washington Representative Liz Pike, said,
“House Democrats voted to legalize the purchase and sale of human babies in the wee hours of the morning. . . . What have we become . . . selling human babies to the highest bidder?”7
Representative Pike is most likely aware that:
“The eggs of an Ivy League-educated donor would command more money in the market—as would eggs of a blonde woman, or one who plays the cello, or one with a graduate degree, or a model who also does calligraphy;” and, “A typical egg donor receives upward of $10,000, but ‘premium’ eggs from Ivy League graduates and pageant queens can command six figures.”8
Charging more for reproductive cells from Yale grads or blonde women athletes is clearly a market evaluation applied to a human baby and is no different than slave traders who graded slaves for certain qualities. William Goodell’s 1853 The Slave Code reports, “In advertisements of slaves to be sold or to be hired out, their intelligence, their skill, their honesty, their sobriety, their benevolent dispositions are specified and insisted on as items of primary importance in estimating their value.” (p. 27)
Perhaps if we repeat over and over that baby selling is not baby selling, we can convince ourselves of a similar legal fiction. Recall the 1839 US Senate speech of the “Great Compromiser,” Sen. Henry Clay:
“There is a visionary dogma which holds that negro slaves cannot be . . . property. I will not dwell on the speculative abstraction. That is property which the law declares to be property. Two hundred years of legislation have sanctified and sanctioned negro slaves as property.”9
Adoption vs. Surrogacy
Persons seeking a child or children via surrogacy are not required to be screened by a licensed adoption agency for home stability or psychological, financial or social attributes normally evaluated in a home study.
Women who offer up their children for adoption are not paid by prospective adoptive parents to simply become pregnant. All surrogacy contracts offer money or other valuable compensation as an inducement to become pregnant for the “Intended Parent’s” benefit.
In cases of child adoption, approximately 45 states, Washington, DC, and some U. S. Territories identify the type of birth parent expenses the adoptive family is permitted to pay to the birth mother. These are usually limited to “reasonable and customary” expenses, e.g. maternity health care, hospital costs, temporary living expenses of the mother, counseling fees, attorney/guardian legal fees, travel if necessary, for court appearance, or evaluation services.10 But Washington’s legislature, which adopted the “model law” for surrogacy in the fifty states, did not specify the type of expenses that could be compensated under surrogacy contracts.
The United States is a signatory to the 1993 Convention on the Protection of Children, which provides,
“that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law,” and “to ensure that those safeguards . . . prevent the abduction, the sale of, or traffic in children.” 11
Katy Faust of “Them Before Us,” an organization which opposed the Washington state surrogacy bill, pointed to Mark Newton and Peter Truong, a homosexual couple, who traveled to Russia to obtain a child by surrogacy in 2005 by paying a Russian woman $8,000 for the child. The couple later took him around the world for six plus years making their surrogate child available for sexual abuse with at least eight men and filming the abuse for the “Boy Lovers Network” website. They were convicted in a federal court in Indiana and were sentenced to decades in prison. 12
Faust, who opposed the bill, recommended adoption screening for persons seeking a child via surrogacy contracts, that is, “intended parents” using surrogate contracts. This common-sense suggestion aimed at protecting the best interests of a child was completely ignored.13
Incidents of Slavery and the Abolition of Marriage
Senator James Harlen, (R-Iowa), noted in debates on the anti-slavery 13th Amendment:
“Some of the incidents of slavery . . . necessarily abolishes the conjugal realm. . . . Having no rights to maintain and no legal wrongs to redress . . . Robbed of all their rights, and then robbed of their capacity to complain of wrong.”14
The American Slave Code reinforced this point stating that in the South, “Slave-mothers are there licensed by their masters to be ‘breeders,’ not wives;” (p. 91); and, “A slave has no more legal authority over his child than a cow has over her calf.” (p. 98)
Section 711 of Washington’s law tracks Slave Code provisions,
“The woman acting as a gestational surrogate and the surrogate’s spouse or former spouse, if any, are not the parents of the child.”
The child she carried and bore may be legally taken from her by court order [Sec. 712] if she fails to turn over the baby to the intended parents.
Once a gestational surrogate woman signs the surrogacy contract, she can have no second thoughts or change her mind even if she later discovers problematic information about the “intended parent(s).”
Certainly the prevalence and use of Artificial Reproductive Technology (ART) has generated questions regarding just who is the child of whom, but the proposition that a woman who carries and labors to give birth is not a mother of the child is bizarre. Can state lawmakers by legislative fiat prevent the natural biological bonding between the mother and child?
Banning Commercial Surrogacy as an Incident of Slavery
Attorney Jeff Shafer has noted that,
“It’s a strange sort of lying when the state issues a birth certificate that declares a child has two mothers and no father. It’s a lie everyone knows is a lie. . . . When this sort of lying endures as official government policy, it impresses upon the community the public irrelevance of the matter about which it lies . . . it is a public repudiation of natural family ties.”15
Lying about our identity as men and women and the nature of marriage cannot build a just society. Even pagans who never went to Harvard or Yale know that the natural family is the basis of all human social order.
Federal courts should not be allowed to fabricate even more LGBTQ legal rights flowing from Obergefell. It is more than a little ironic that the Supreme Court once again is spawning legal, social and moral chaos in an area so closely related to slavery and treating people as property. In 1968 the Supreme Court held that the Thirteenth Amendment not only made slavery illegal but also any incident which flowed from slavery regardless of race.16
In the Natural Order, children are procreated, not produced or manufactured. The best motives or intentions do not eliminate adverse natural consequences. Whenever commercial surrogacy is part of the public discussion, beaming adults (intended parents) are pictured holding smiling babies. Everyone is happy! Right?
Listen to Brien, a surrogate child cited by the New York Surrogacy Minority Report:
“It looks to me like I was bought and sold. . . . My biological father and adoptive mother were very good to me and I know they loved me. I love them too very, very much. But they did some things that were inexcusable and made me feel horrible. . . . I feel that my parents and my mother did not take my feelings into consideration when they entered into this arrangement. . . . It looks like you [the surrogates and the intended parents] are all good people with good intentions and a lot of love but all the good intentions and love in the world wont [sic] change the defenition [sic] of right and wrong. It won’t change how the kids feel.”17
Neither infertility among heterosexual couples, nor the natural impossibility of fertility among homosexual couples is moral or constitutional justification for states to allow and enforce commercial surrogacy contracts. The marriage vow that a man and a woman take each other in marriage for better or worse, included trials such as infertility.
The Supreme Court’s Dred Scott v. Sanford (1857) erred on slavery and the identity of persons under the Constitution. Plessy v. Ferguson (1896) erred on “separate but equal” treatment of human beings based on race. Obergefell erred on constitutionalizing so-called “marriage” for persons of the same-sex.
The Court’s Obergefell decision gravely harms children by concluding that commercial surrogacy is a constitutional right based on same-sex “marriage.” Stopping the spread of the Court’s Obergefell error is a moral imperative and a legal obligation under the Thirteenth Amendment because all commercial surrogacy abuses women as rented baby incubators and relegates children to the status of property acquired by “contract” enforceable in court.
In 2019, Virginia passed a commercial surrogacy law for individuals or couples supported by both leftist Democrats and conservative Republicans. The introduced bill included the term “ownership of the embryo” four times. As Virginia was a major slave state for centuries this brought legislators uncomfortably close to the reality of what they were doing. So, the original language in the bill, “upon proof of ownership of the embryo,” was changed to read “upon proof of the legal or contractual custody of the embryo.”
This amendment ensured that surrogate children were still property because the words “contract” or “contractual” were used 68 times, and “surrogacy contract” was used 10 times in the law all with the purpose of ensuring that “Intended Parents” could receive what they were paying for, namely a child.
This year, 2019, is the 400th anniversary of the establishment in 1619 of Virginia’s legislature, the oldest established and continuously operating legislature in the world. The first slaves were brought to Virginia in that same year, 1619. This is an irony apparently lost on the legislators seeking to accommodate the new flesh peddlers.
States have legalized “surrogacy contracts” for couples and individuals, same-sex or not. The comparison between “incidents” of commercial surrogacy with Southern chattel slavery should be treated by the United States Justice Department and federal prosecutors as illegal incidences of Slavery forbidden by the Thirteenth Amendment.
1. Revisiting Surrogate Parenting, a 2017 New York State Task Force, p. 129.
3. Parentage Act Updates sdc.wastateleg.org/pedersen/2018/03/12/sen-pedersens-legislative-update-2018-session-ends.
4. Bill as passed: lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Passed%20Legislature/6037-S.PL.pdf; amendments that failed: app.leg.wa.gov/billsummary?BillNumber=6037&Year=2017.
5. Anita L. Allen, The Socio-Economic Struggle for Equality, The Black Surrogate Mother, 8, Harvard Black Letter Journal, Vol. 17, Spring, 1991
6. Allen, Adeline A. “Surrogacy and Limitations to Freedom of Contract: Toward Being More Fully Human”, Harvard Journal of Law & Public Policy, (Vol 41, No. 3, 2018) pp. 784-785.
7. “Senate Bill 6037 allows for paid surrogacy in the state of Washington,” Clark County Today, 2-28-18 clarkcountytoday.com/opinion/republican-lawmakers-enraged-by-passage-of-the-uniform-parenting-act/#.W0zF_dVKipo.
8. Allen, Adeline A. “Surrogacy and Limitations to Freedom of Contract: Toward Being More Fully Human” Harvard Journal of Law & Public Policy, (Vol 41, No. 3, 2018) p. 793; Margie Fishman, The News Journal, Published 1:55 p.m. ET June 16, 2017, Two dads, two babies and a $150,000 journey, delawareonline.com/story/news/2017/06/16/two-dads-two-babies-and-150-000-journey/375671001.
9. William Goodell, The American Slave Code, in Theory and Practice, Its Distinctive Features Shown by Its Statutes, Judicial Decisions, and Illustrative Facts, Salisbury, Beeton and Company, Printers Bouverie Street, and Primrose Hill, Fleet Street, London, 1853, p. 20-21.
11. Article 1, Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, hcch.net/en/instruments/conventions/full-text/?cid=69.
12. Katy Faust, 2/12/18, Disaster Surrogacy Cases Sanctioned by Washington State’s SB 6037, thembeforeus.com/disaster-surrogacy-cases-sanctioned-washington-states-sb-6037/; Nick Ralston, Named: the Australian paedophile jailed for 40 years, Sydney Morning Herald, June 20, 2013, smh.com.au/national/named-the-australian-paedophile-jailed-for-40-years-20130630-2p5da.html.
13. Katy Faust, Them Before Us Founder Testifies Against Uniform Parentage Act, January 22, 2018, thembeforeus.com/us-founder-testifies-uniform-parentage-act.
14. The Congressional Globe, April 6, 1864, page 1439.
15. Jeff Shafer, Obergefell and the Right to Other People’s Children, First Things, 9-21-17, firstthings.com/web-exclusives/2017/09/obergefell-and-the-right-to-other-peoples-children.
16. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439-440 (1968).
17. The 2017 New York Surrogacy Minority Report, p. 120, Brian C., Son of a Surrogate blog, posted August 9, 2006, viewed on May 25, 2016 at, http://sonofasurrogate.tripod.com.
Robert Marshall served 26 years in the Virginia House of Delegates and was the chief house sponsor of the 2006 voter-approved Virginia Marriage Amendment and a ban on late-term abortion. He recently wrote Reclaiming the Republic: How Christians and Other Conservatives Can Win Back America (TAN Books). Previously, he coauthored Blessed Are the Barren: A Social History of Planned Parenthood (Ignatius Press). Finally, don’t miss Bob’s Civics Lesson for Catholics in the Catholic Culture Podcast Episode 17.
This article has been reprinted with permission and can be found at catholicculture.org/commentary/articles.cfm?id=776.