You may have heard some buzzing about how Mitt Romney’s oldest son Tagg and his wife Jennifer got their twin boys from a surrogacy agreement that included an abortion clause:
“If in the opinion of the treating physician or her independent obstetrician there is potential physical harm to the surrogate, the decision to abort or not abort is to be made by the surrogate.”
“In the event the child is determined to be physiologically, genetically or chromosomally abnormal, the decision to abort or not to abort is to be made by the intended parents. In such a case the surrogate agrees to abort, or not to abort, in accordance with the intended parents’ decision.”
And since Grampa Mitt is running on a pro-forced-birth campaign, everyone is making an issue of this, like this Means Something for the anti-choice movement. It is arguably relevant that Mitt helped pay for the surrogacy arrangement, but let’s put that aside for a moment.
The problem is, according to the attorney who drafted the agreement, the abortion clause wasn’t supposed to be there:
We’ve learned Tagg chose the same surrogate in 2009, who gave birth to a boy. Attorney Bill Handel — a nationally-known expert in surrogacy law who put the deal together between Tagg and the surrogate — tells TMZ when the 2009 contract was drafted there was no Paragraph 13 providing for abortion because Tagg and his wife didn’t want it.
Handel says in 2011, when the second contract was being drafted, everyone involved “just forgot” to remove Paragraph 13. Handel says, “No one noticed. What can I say?”
To be honest—we all know I’m a rabid baby-eating pro-choicer around here, right?—I find it more disturbing that they didn’t have the abortion clause in their surrogacy agreement in 2009. What would’ve happened if the surrogate had developed dangerous pregnancy complications? They couldn’t have stopped her from getting an abortion, but they probably would’ve had grounds to penalize her for it. I’m not coming to this story from the point of view of a lawyer or ethicist, or any expert in gestational surrogacy, just as someone with a generalized awareness of the ugly shit that can happen in a pregnancy and the potential for exploitation in any reproduction-related arrangement. I don’t think gestational surrogacy is inherently unethical or exploitative*, but it has a wide range of potential for unethical and exploitative practices, and there’s a delicate balancing act in an ethical surrogacy agreement.
Now Bill Handel is telling us that in 2009, Tagg and Jennifer Romney simply “didn’t want” an abortion clause in their surrogacy agreement? That, my friends, is one of the ways that surrogacy becomes exploitative. Of course the woman who grew the baby could have simply withdrawn from the process before she became pregnant, but what would’ve happened if she’d gone ahead with the process, started gestating their embryo, and then hit a roadbump? What would the Romneys have done if she’d had an abortion because the pregnancy posed a serious danger to her health? How would that woman’s life have been derailed if she’d been punished for going against a surrogacy agreement that shouldn’t have been offered to her in the first place?
I am not entirely sure that I believe Bill Handel when he says that “no one noticed” the presence of Paragraph 13 in the latest agreement. That sounds like the sort of thing a lawyer would say to take the heat off his clients in a moment of controversy. How careless were Tagg and Jennifer to sign the agreement without first reading it? How negligent was Bill Handel to put the paper in front of them and not notice that Paragraph 13 was still there? It is possible that, having gone through the experience once already, the surrogate was not going to sign up for making another baby (much less twins) without an escape clause, and/or Tagg and Jennifer were not going to risk the fallout from putting their surrogate through a pregnancy that posed a greater-than-normal risk to her quality of life. If that was the case, the Romneys should not be apologizing for how they arranged to have twins. Tagg and Jennifer do not have to have the same pro-life politics as Mitt, and Mitt as an anti-abortion candidate does not have to demonstrate that he’s properly taught all his sons and daughters-in-law to be just as anti-choice as he is. We might discuss the implications of his having contributed money to the surrogacy arrangement, but perhaps he didn’t look at the document before he threw money at it? Perhaps he just wanted to help make it happen, because grandbabies are awesome, and simply hasn’t given any thought to the reproductive freedom politics involved in surrogacy? One could say that, as a pro-life politician, it is his responsibility to know what surrogacy entails, but one could also view the Romneys’ use of surrogacy as a response to living in a society shaped by legal abortion. The babies they want aren’t really available for adoption, but there are women who will sign up to get pregnant for other families for twenty-some-thousand dollars each. If they lived in a society without legal abortion and reliable birth control, there would be plenty of healthy (and white) babies to adopt, and no need to hire a woman to make their babies happen.
It could be argued, also, that if there’s no way to get more babies without signing a pro-choice surrogacy agreement, then the Romneys should have simply stopped having children. That would have been the pro-life strategy: accept your infertility. In that case, see above: the Romney sons and daughters-in-law are not obligated to ape their father’s anti-choice politics.
If we can establish that the intended parents knew exactly what was going on in terms of leaving the decision of abortion for health reasons to the woman and her doctor, and that the intended grandfather knew what was happening when he threw money at the problem, then does that say something about pro-life politics? If we can establish those conditions, then, sure, it’s relevant, but it’s not really surprising. Before Roe, there were plenty of privileged women getting totally safe, perfectly legal abortions from doctors who agreed that their pregnancies were dangerous to their health, whether physical or mental. It helped to be able to pay a doctor for his discretion. Now in the age of abortion clinics being swarmed with protesters all the time (I walked past a crowd in front of the Planned Parenthood in downtown DC just this morning!), we still see women who think they’re special enough to get those nice safe procedures for themselves and then go right back out to the picket lines because they’re not like those irresponsible other women in the waiting rooms. If privileged rich people claim reproductive freedom for themselves that they don’t allow for the general population, that’s not really new. If anything, the Romneys are being more responsible and ethically honest about compartmentalizing their reproductive rights than the general pro-forced-birth movement, because women who sign up to do gestational surrogacy are typically of a much lower privilege profile than the intended parents. If they allowed an escape clause for her in growing their babies, that shows they’re thinking of someone less powerful than they are.
*About that? One could argue that any surrogacy arrangement is inherently exploitative, but even by that logic, it’s nowhere near as exploitative as newborn adoption. Gestational surrogacy means that a woman decides the if, when, how many and with whom of her pregnancies. Adoption is, at best, a response to an accident. This is one of the social issues that pop up in my WIP Fait Accompli.
As you can see, I am still alive and functioning. The blog has been slow lately because I am coping with some weirdness in my head. I’m not yet ready to resume Sunday Storytime, but the books are still happening.