Surrogate Motherhood and Infertility

Scott Rae: Welcome to the podcast Think Biblically: Conversations on Faith & Culture. I'm your host, Scott Rae, professor of Christian ethics and dean and faculty at the Talbot School of Theology, Biola University. We're here today with my colleague in Christian ethics, it's actually nice to have somebody else in the fraternity here.

Ken Magnuson: Absolutely.

Scott Rae: Dr. Ken Magnuson, who is professor of Christian ethics at the Southern Baptist Theological Seminary in Louisville, Kentucky. He's been there since 1999. He also chairs the department of worldview and culture, which sounds a bit like a department of philosophy slash cultural engagement.

Ken Magnuson: Yep.

Scott Rae: And also, directs what is known as the common will project on faith, work, and human flourishing. So our interests have coincided pretty significantly over the last few years, because I've been involved in similar projects at Talbot, in the area of faith, work, and economics. So appreciate all your good work in these multiple areas, and I understand how it is to balance bioethics, business ethics, and those disparate fields, and trying to stay on top of a lot of different things at the same time.

But you've been working a lot on a subject that I think a lot of people thought was maybe a closed subject. 30 or so years ago, we kind of thought we resolved all the issues, when it comes to surrogacy, surrogate motherhood. But what I've come to refer to it as pregnancy for profit, for the most part. But that's not really a closed book.

The issue of surrogacy is still alive and well as an issue in the field today, and in broader culture. And so you've done a lot of thinking about this lately. First of all, what motivated you to get into this area? Because, as we've talked, you sort of stepped into the weeds here, and there's a lot to sort out. So what motivated you to dive into this area?

Ken Magnuson: Yeah, it started a long time ago. I was doing some work on infertility and reproductive technology as part of my doctoral dissertation, because I wanted to take a moral issue that is not addressed directly in Scripture and think about how the Bible and our theological reflection informs that, thinking in some sense about what to do when the Bible doesn't tell us directly what to do, with the belief that the Bible speaks into these issues.

And so, I was looking a lot at in vitro fertilization especially, and it has the intersection of so many things. So technology of medicine, of how we understand human personhood, and then marriage and procreation. And then, also, things like the embryo and how we treat human life at its very beginning. So all those things drew me into looking at in vitro fertilization, and I would look at and talk about surrogacy some, but not as much, and partly because it's not as common, and in vitro involves so many things.

But more recently, it was in reading a CT article, Christianity Today article, on America's fertility, surrogacy bump, and I just thought, "This is a really important issue for evangelicals and others to sort out," and clearly, there's many who have jumped into this, and I don't know how informed they are in jumping into it, so it's an important issue.

Scott Rae: Okay, so this article on Christianity Today is sort of what sparked your revival of interest in this. Just for our listeners, the surrogacy bump refers to a sort of play on words, the baby bump in the abdomen, but also the bump-

Ken Magnuson: The growth in surrogacy.

Scott Rae: -increase in the surrogacy industry.

Ken Magnuson: Yes, so they talked about how it was small, but had quadrupled over about a decade, and so, when we see something of a trajectory like that, I think it's really important to recognize that this is something that we need to continue to speak into.

Scott Rae: Okay, so let's sort of start at the basics, here. For the benefit of our listeners who might not be aware of what the surrogacy industry is like, there are lots of different ways to do surrogacy arrangements. Tell us about, what are the different varieties of these arrangements?

Ken Magnuson: Yeah, so I would put it in a couple of different categories. So types of surrogacy would include what some would call traditional surrogacy, or genetic surrogacy. I think you and [Joey Riley] have called it genetic surrogacy in your book, where the surrogate carrier is also the genetic mother of the child. In the traditional terms, and the most famous case of that, would be Hagar in the book of Genesis, where Sarai brings her maidservant to Abram, and he lies with her, and they conceive a child.

In more modern time, it would be the Baby M case out of New Jersey in the mid-80s, where she was inseminated with the husband's sperm, and so there we have traditional-

Scott Rae: Not her husband's.

Ken Magnuson: Not with her husband's. With the infertile couple, and taking his sperm, William Stern, and Mary Beth Whitehead was inseminated with that, and so that would be traditional or genetic surrogacy.

Scott Rae: Okay, so just close the loop on that. What happened in the Baby M case?

Ken Magnuson: That was a huge case that got not only national attention but worldwide attention, because Mary Beth Whitehead, in the end, decided she wanted to keep her baby, and give back or not receive the $10,000, and so she was granted some days with the child, and she ended up, essentially, kidnapping, or taking the child, and fled, and it was, I think, about a three month search.

Authorities found her in Florida, and in the meantime, the couple who had commissioned the child, the Sterns, sued for custody, and so the authorities brought the child back. A lower court had ruled that the surrogacy contract was valid and the child would be awarded to the Sterns, but the New Jersey Supreme Court, interestingly, overruled on some points, including saying that Mary Beth Whitehead is the mother of the child, and so it was a custody issue, and they turned it over to family court.

They awarded custody to the Sterns largely because of what they deemed to be a more stable environment, and so, it was just a big mess. And as a result of that, a number of countries around the world and states in the U.S. banned surrogacy. And it's one of those problems. It's very difficult for a mother to carry her child and then give up her child. And that was shown and highlighted in that case.

Scott Rae: So you think that the New Jersey Supreme Court actually was correct in ruling that Mary Beth Whitehead was the mother?

Ken Magnuson: Certainly, and interesting thing, there, is that, in that case, she was not only the surrogate mother but also the genetic mother of the child, right?

Scott Rae: So, yeah, just to make this clear to our listeners, it was her egg, and she carried the baby to term and gave birth to the child.

Ken Magnuson: Yes, absolutely. And so, what's really fascinating, and this may be getting ahead of ourselves a little bit, but what's really fascinating is that later courts have ruled that even a surrogate who's carrying a child that's not from her egg, that is coming from either the couple who have commissioned the child, or some combination with a donor egg or sperm, and the surrogate is only the gestational carrier. Courts have ruled that she is a biological parent. She is a biological mother of that child, and so that's without that genetic connection. It shows something of an understanding of how important pregnancy or gestation is.

Scott Rae: So yeah, I think it's important to recognize that she is a biological mother, not the biological mother.

Ken Magnuson: Right. So they recognize the woman who contributed the egg and the surrogate both as biological mothers.

Scott Rae: Folks, if you think this is getting complicated, we're just getting started, so hang in there.

Ken Magnuson: That's right.

Scott Rae: So traditional surrogacy is one kind.

Ken Magnuson: Yes.

Scott Rae: What else?

Ken Magnuson: Then, another form would be, we might call it gestational surrogacy, where the surrogate has no genetic relation to the child. It's not her egg that is used, so it would most commonly be the commissioning parents, the husband and wife's sperm and egg, often used with in vitro fertilization, and then they transfer the embryo to the surrogate. It could be a donor egg, it could be a donor sperm, but she's just the, "just" in quotation marks, the carrier of the child. So it's gestational surrogacy.

Scott Rae: I love the part you bring out in your paper on this. The quote from Friends, Phoebe, who was a surrogate in the show. How does she describe her relationship?

Ken Magnuson: So, she says, so this was her step-brother and his wife, and she's the gestational carrier, and she said, "I'm just the oven. It's totally their bun."

Scott Rae: I love that. Okay. And you coined some other ... There's some other arrangements. So what are some of the other permutations on this?

Ken Magnuson: So, besides that sort of category, we can look at another category where there's commercial surrogacy, where the surrogate is paid for her services, usually also, well, her medical expenses would be covered, and then sometimes, also, lost wages due to pregnancy. And so commercial surrogacy is awarding her financial compensation. In altruistic surrogacy, the surrogate is simply ... She would receive medical expenses, but she's doing this for, often, a friend, or a family member, or maybe just because she wants to give up herself to somebody in need, but altruistic meaning that she doesn't take, at least, profit from it.

Scott Rae: So there's no fee.

Ken Magnuson: Right.

Scott Rae: So in a commercial surrogacy arrangement, what's the average? If my wife and I were looking to do this, what kind of check would we have to write?

Ken Magnuson: Yes, so, well, that's a good question. So, the surrogate is paid, on average, something around $20,000. But depending on circumstances, that could go as high as 60,000, and in addition to other expenses. In terms of the commissioning parents, what they're going to pay, often that is in the range of about $80,000, total. It may depend on whether in vitro fertilization is part of the process, which it often is, and for couples who come to the United States internationally, with travel and everything involved, often, it's a full package, and that can cost up to $200,000.

Scott Rae: Yikes. That's an expensive form of reproductive tourism.

Ken Magnuson: Yeah, it's very expensive. Yeah.

Scott Rae: Now, there are other parts of the world where this is done quite a bit cheaper, I take it?

Ken Magnuson: Yes, yes. So-

Scott Rae: Is there such a thing as outsourcing surrogacy?

Ken Magnuson: Yes. In fact, the two countries that are most prominent in this is the United States and India. So, in recent years, one year, I believe it was $6 billion spent on surrogacy, and the U.S. was 4 billion of that. So, by far, the most money spent. But if you look at the most number of surrogates, that's been in India, because they're paid quite a bit less, and so, where I said in the U.S., a surrogate may be paid on average about $20,000, in India, it would be more like three to $6,000.

Scott Rae: That's a big difference.

Ken Magnuson: It's a big difference, and when you compare it to wages in the two countries, you can think about alluring it might be for a woman in India, because it can be up to ten years of income for carrying a child.

Scott Rae: That's a lot of money.

Ken Magnuson: It is.

Scott Rae: Especially for just nine months of pregnancy, assuming all goes smoothly.

Ken Magnuson: Right, right.

Scott Rae: We got to be careful with this, because we're both guys here.

Ken Magnuson: And I think we know that there's plenty of women who would say, "I wouldn't carry a child for $3,000," for sure.

Scott Rae: Exactly. Let's go back to that Christianity Today article that sort of motivated a lot of your thinking on this. One of the questions it raises is this notion of, is fertility a blessing that either could be shared or, some would say, should be shared? What do you think of that statement?

Ken Magnuson: Yeah. So, one of the things that struck me in the article is that it seemed to be either neutral or sounding like this is, at least, presenting the women who were doing this that it was something they saw as a way to bless others, and so that they saw it, certainly, as a blessing to be shared, that they could help out a couple or a woman who is unable to carry a child, they saw it as something of a service that they could provide.

Scott Rae: Are you aware of some Christian women who would enter into surrogacy arrangements as a ministry?

Ken Magnuson: Well, one of the women in the story started a surrogacy agency, and she's a Christian woman. And, in fact, between the three women that were profiled in the story, I think they had carried, if I remember right, seven children, as surrogates, and they had a number of children of their own, as well.

Scott Rae: So, let me take you back. This is a few years ago, because one of the occupational hazards for both of us, of working on some of these things in bioethics, is sometimes, people in our churches know that we're working on this, and they approach us on these things. I had a couple approach me some years ago. They knew I'd been thinking about some of this, and they came all excited in the parking lot at church and said, "We got the best news. Our daughter is serving as a surrogate for our daughter-in-law. Isn't that the most Christlike thing?"

And I think that's sort of the ethos of this article, that we think nine months sacrifice to carry a child for someone else, sort of sounds like ... Maybe not the epitome of Christlike altruism, but it's pretty close to it.

Ken Magnuson: Yeah, it's significant.

Scott Rae: It is. We can probably [inaudible] back and say, "Well, if it's that kind of altruism, then let's talk about the fee that's being charged, too." But I think a lot of people, it strikes them as just being this incredibly compassionate, sacrificial thing that they would do for another person. How do you respond to that?

Ken Magnuson: Yeah, so, I could've said when talking about commercial and altruistic surrogacy that only about two percent of surrogates are altruistic, so there's usually a financial transaction. Now, as I look at it, I would say there's multiple motivations, and so I don't think a woman is carrying a child for nine months just to get $20,000. That's a lot of money, and that would be tempting, especially depending on where someone is at their stage in life and things like that. But it's also a huge deal.

I know that there's plenty of women who would say $20,000 would not be worth what you'd go through in pregnancy and labor and delivery. So I don't think it's just about the money, I think there really is a motive to help others, a motive of sacrifice that's involved, and so, it's easy to be cynical and just say, "It's all commercialization," and it is that, but I don't think it's all that.

Scott Rae: I think that's a helpful distinction. So you would see this maybe a little differently than a woman, a college-age woman who would sell her eggs on a one-shot thing, just to pay a semester's worth of tuition.

Ken Magnuson: Yeah, now, that also is a process that can be painful, and a lot of things that go into that, but it doesn't involve the same kind of sacrifice or the same kind of bodily commitment that surrogacy calls for.

Scott Rae: Yeah, and I think we would certainly want our listeners to know that neither of us consider the process of harvesting and selling a woman's eggs to be risk free.

Ken Magnuson: Right, right, absolutely.

Scott Rae: And so, [inaudible] be very careful about that. So, the majority of cases today, I take it, are the gestational ones, because what the law has upheld makes genetic surrogacy pretty risky.

Ken Magnuson: Right.

Scott Rae: Okay, what makes genetic surrogacy so risky for the couple who contracts with the surrogate?

Ken Magnuson: Yeah, well, it's largely that if the surrogate mother decides that she doesn't want to part with the child and wants to keep the child, it's going to involve a significant legal entanglement, and chances are pretty decent, especially if she's in a stable position, that custody could be awarded to her, and so in any case, it's going to be a messy situation.

And so that's one of the challenges, and one of the reasons why it's getting to be pretty rare to see genetic surrogacy.

Scott Rae: Correct me if I'm wrong on this, but it sort of sounds like that a genetic surrogate who wants to keep the child is almost like she's been married to the natural father of the child and they've divorced, and now they're in this complicated custody battle.

Ken Magnuson: Yeah, one of the things that I would say is, this may be different from state to state. We don't have good, at all, federal regulation of this whole thing. So it depends on the state that they're in, but it would be true in most cases that the court would have to treat it as though here's two parents of this child, how do we negotiate this settlement?

Scott Rae: Okay. And in a gestational surrogate, where we've basically divvied up the biological contribution among two different women, how do you sort out who's the mother there?

Ken Magnuson: Yeah, so that was one of the most fascinating things to me as I started reading into this, because I think, for a lot of us, we would naturally think that the surrogate is carrying the child, but she's not the mother of the child. And so the one who contributes the egg is the mother of the child, certainly, and in cases where the egg might be donated, you have a whole additional social mother of the child who's commissioning this. So you talk about it getting kind of confusing.

But what was fascinating to me is how courts have ruled that the surrogate mother is equal in terms of a biological mother of the child, and therefore, the reason that they have awarded custody or given the commissioning parents the child, is because they had entered into a contract. And so they're saying it is the freedom of contract that rules over this situation.

That's been the case in California, in particular. But just the recognition by the court that the gestational mother, the mother carrying the child, is an actual, biological mother because of how intimate pregnancy is, and the exchange between the mother and child in pregnancy.

Scott Rae: Again, a biological mother, not the.

Ken Magnuson: Yeah.

Scott Rae: So what about the contract part? Because I sort of get the idea that these are big boys and girls entering into these arrangements, a deal's a deal. Why should a surrogate be able to back out of the deal that she's made, say, six, seven months into it, when the contracting couple's already started ... They may already have a nursery, and already bought all the stuff?

Ken Magnuson: Absolutely, yeah. They've planned this out as much as any parents have planned out a pregnancy and child, and I think it's the proper intuition for us, and the proper argument, to say that freedom of contract is very strong, especially in the United States, that we are free to enter into contract with one another for all kinds of services and things. And we want to protect that.

The question is whether freedom of contract can be applied in every situation, and there's an article that I've found to be very helpful that we've talked about briefly, but in the Harvard Journal of Law and Public Policy, by [Adeline Allen] called Surrogacy and Limitations to Freedom of Contract: Toward Being More Fully Human. It was published in 2018, and I think she's right to say that there are some things that we cannot contract into, such as prostitution, would be an example.

Another example would be slavery, to sell ourselves into slavery, particularly in a classic sense of lifetime servitude and that kind of thing. So there are some things that, even though in one sense, we could enter into freely, the state has interest in making sure that doesn't happen.

Scott Rae: And I suspect that if you and I decided to settle some of our theological differences with pistols at twenty paces, we signed a contract that we were going to do that, and all of a sudden, I get nervous, because you're a better shot than I am, and I back out of it, you can't take me to court for breach of contract.

Ken Magnuson: Right. The court will not stand with me on that.

Scott Rae: Which I'm grateful for. It's a good thing.

Ken Magnuson: It's a good thing, yeah.

Scott Rae: Okay, so Ken, we sort of talked a bit about the landscape of surrogacy. What reservations do you have? What troubles you about surrogacy, the way it's practiced today, the surrogacy industry, what bothers you about it?

Ken Magnuson: When I started thinking about, what would be my reservations, especially in response to the Christianity Today article, I thought about two or three things. By the time I was done reading and reflecting on a number of cases and on the meaning of procreation in marriage and one flesh, and the connection between parents and children and all of these things, I had ten things that concerned me, and concerned me enough that I would argue that we should not enter into a surrogate relationship, that we should not permit surrogacy, because of these concerns. And among them-

Scott Rae: Say, of those ten, what's at the top of the list?

Ken Magnuson: I think that I would say exploitation. The possibility of exploitation is very strong when you're talking about a woman who is in great financial need and the option of making some money by carrying a child in her womb. Especially when she might find it easier to justify because she's helping somebody out. So that would be one thing.

Scott Rae: Yeah, if you put it into the mix, too, you probably have infertile couples who, with varying degrees of desperation-

Ken Magnuson: Yeah, yeah, that's right. That's right. The couple that long deeply for a child, and it's a good desire to long for a child, can easily move in directions that I think are not helpful or good for them.

Scott Rae: Do you see that possibility for exploitation more so in the U.S., or in places like India?

Ken Magnuson: I think it's especially acute in a place like India, because of poverty being a much bigger problem. And even though they would be paid much less, in terms of what that means to them, it's a huge amount of money. And this is in a country where I think it's very different, but there's at least a parallel, that some people would be coerced into or exploited into selling an organ. A kidney, or something.

And so, in the U.S., it's not as great a problem, but I think there's coercion that can be subtle, and exploitation, whether or not we recognize it.

Scott Rae: I think it is well documented, at least in India, that a lot of the women who serve as surrogates are sort of under the authority of the broker who arranges the deal, and the broker, often times, has a lot of restrictions that that place on the women during their pregnancy, sometimes amount to what I would consider close to being under house arrest.

Ken Magnuson: Yeah, yeah.

Scott Rae: And they have nothing. Their desperation for the money prevents them from resisting that, or, once you're pregnant, it's kind of hard to walk away from the deal.

Ken Magnuson: Yeah, yeah. Yeah, no, that's right.

Scott Rae: I know you have a concern about the bonding that takes place during pregnancy, and what happens to that in a surrogacy arrangement. I take it that's pretty high up on the list, too.

Ken Magnuson: Yeah, that was one of my chief concerns in this, because I think that, as I look at it, it's part of God's design that the bond between husband and wife is extended in procreation to a child, and that that begins in pregnancy. And the bond is particularly strong between the mother and child in pregnancy, and this is not merely an emotional bond, but it is an emotional bond, and she's the first to become aware of the child inside of her.

And, by the way, it goes two ways, too. She's bonding with the child, but the child is also bonding with the mother, and the mother's voice is something that the child will recognize, and hear, and her heartbeat is the rhythm of the child's life. And then through the umbilical cord, there's an exchange that is much one way, but there's an influence on the mother, as well, with hormones and things like this.

And so, it's an emotional bond, but it's more than that, and there's a field of science called epigenetics that is a little bit beyond what I've done a lot of work in, but it's showing that there's actually a physiological bond between mother and child. And one of the things that they have observed is that, a mother may, for a number of reasons, and it may be willful or maybe circumstances, that she doesn't bond with the child. It may be a pregnancy she doesn't want. But it's interesting in the case of surrogacy. There's a sort of a conflict here, because it's not a pregnancy that she doesn't want so much as a pregnancy that she needs to distance herself from.

And so there's some similarities there, and there's research that shows, for instance, that where bonding is weaker during pregnancy, things like postpartum depression is greater. And so, just signals that there's a strong bond that takes place between mother and child in pregnancy that is deliberately distanced, and I think that's a significant issue, a significant problem.

Scott Rae: So that's not something we would want to encourage, even in the name of altruism.

Ken Magnuson: Absolutely. Absolutely. For the sake of the mother carrying the child. Because I think she has to, in some sense, detach herself from something that God has designed for her to attach herself to. But also for the sake of the child. Because the child is completely bonded to that mother, and one of the things that several people talked about in their observations, is how the most natural thing, the thing that a child cries out for upon birth, is to be laid on his or her mother's chest.

And that's such a significant time, but in surrogacy, very often, they whisk the child away directly to the, well, perhaps intermediate care, and then onto the commissioning parents. And I think that leaves both the child and the mother in a very, very difficult position.

Scott Rae: It sounds like, as well, sort of theologically, and I share your view on this, too, that you'd be pretty skeptical of any third party interventions into the matrix of marriage, as far as procreation goes. And I like the way you put that, that the husband and wife bond is designed to be extended when it comes to procreation, so that would render skepticism about egg donors, sperm donors, and womb donors in the case of surrogacy.

Ken Magnuson: Yeah, that's a strong objection I have that I've explored a little bit more with respect to in vitro fertilization where donor sperm or donor egg are used. It's the introduction of a third party into that marriage and family relationship, and I think that's a problematic thing, but I think it does extend to surrogacy as well. Because otherwise, we're seeing the surrogate mother as, well, like Phoebe in Friends said, just the oven. Just as a gestational carrier, as though the womb is something out for hire.

Scott Rae: Human incubator.

Ken Magnuson: Right. And we know that it's a much deeper human experience than that. And I just talked about the mother and child bonding, but what happens in pregnancy, when things go as they should, I think, is that it's also a time where the mother and father bond further, and the father and the baby bond. And so, all that is disrupted in surrogacy, perhaps, in the name of altruism, but I don't think that justifies it.

Scott Rae: Well, I know there's a lot more that we could talk about on this, and maybe we'll have to come back and do some more discussion on IVF and some of these other reproductive technologies that I know you've thought an awful lot about. But I think this gives us a lot of good food for thought, and you're not denying how painful infertility is-

Ken Magnuson: No, not at all.

Scott Rae: -But just taking this option for a Christian couple and having pretty significant reservations about surrogacy.

Ken Magnuson: Yeah. That's right. One of the things that I try to convey as clearly as I can to my students when I talk about reproductive technology is that, infertility is a deeply painful experience, and the Bible attests to this both directly in Proverbs 30:15 and 16, but also by the experience of barren women in the Bible. And so, I think we need to have deep compassion for those who are suffering.

Studies show that the suffering of infertility is just below cancer patients in terms of the intensity and things like that. So we absolutely need to know that and to care for those who are suffering infertility. I just think that there are some things that ought not to be pursued.

Scott Rae: [inaudible]. Thanks, Ken. Really appreciate your insight on this, particularly the good work that you've done on surrogacy most recently, but also sort of the long tradition you've had of good, solid work in Christian ethics, particularity in bioethics and these areas of reproductive technology.

Ken Magnuson: Well, thank you, and thanks for having me.

Scott Rae: Yeah, it's been great to have you with us. This has been an episode of the podcast Think Biblically: Conversations on Faith & Culture. To learn more about us and today's guest, Dr. Ken Magnuson, and to find more episodes, go to biola.edu/thinkbiblically. That's biola.edu/thinkbiblically. If you've enjoyed conversation with Dr. Magnuson today, give us a rating on your podcast app and share it with a friend. Thanks so much for listening, and remember, think biblically about everything.