Is Surrogacy a Right of Gay Male Couples?

When the surrogate mother is an impoverished Thai woman and she acts as no more than a tool to two well-off gay men, it complicates the question of who has the right to what.

Tal Niv
Tal Niv
Tal Niv
Tal Niv

Ever so gently, I want to say something that will raise people’s hackles. That two men can be parents to a baby is self-evident in every respect: morally, legally, emotionally, ideologically and practically. That said, surrogacy as it is practiced in Thailand, where we see it in its most extreme form – a woman carrying a child that did not originate from her egg and has no direct connection to the “commissioning” male couple – distorts the concept of “rights” by infringing the rights of the woman. It is a form of organ trafficking.

Trafficking in kidneys, pancreases, corneas, livers and lungs is regulated by international law. However, trafficking in genetic material and in the organs that produce a whole person – cases in which an already existing whole person, real and living in the world, must play the part of, effectively, an incubator – is still a new phenomenon that calls for thought and reflection.

If a male couple in a stable, loving relationship wants to bring a child into the world, male physiology should not deprive them of this experience. But is the only available recourse to buy an egg from an anonymous woman and insert the fertilized egg into the womb of another unknown woman? I question the notion that surrogacy is a right of male couples. I believe that homosexual men who are thinking of becoming parents should consider establishing a relationship with a concrete woman, even if she is not part of their family.

The fact is that the act of creating a human being out of genetic material, through pregnancy and childbirth, is of a different order than transplanting one person’s heart into the chest of another. And not because men do not have the “right” to love, to live together and to be parents, but because to create a cell, the child must inhabit the body of one specific woman for nine months. That price trumps the “right.”

Clearly, in this world a Thai woman who “works” in surrogacy is poorer by any measure than any male couple wishing to avail themselves of her services, even if their parents had to mortgage their homes to pay for the surrogacy. Let’s look at it the other way around: Does a poor male couple who cannot afford a Thai surrogate possess the “right” of parenthood? Of course they do. But, not having money, they have no choice but to think about a concrete woman, whose role will not end after the birth. It follows that even when money is available, it is unconscionable to “disappear” the woman in the name of the “right” of parenthood.

Let’s assume that a legal way will be found to allow the parents who are currently “stuck” in Thailand with newborn surrogate-mother children to come to Israel with the children. As these are the children of surrogates, let’s assume – just hypothetically – that each child’s biological father will officially marry the surrogate, thus according her parental rights, and then visitation arrangements will be made under which she agrees to forgo custody of the child. In this kind of imaginary, inconceivable situation, the children are able to leave the mother’s country.

But that scenario sounds off the wall, right? To begin with, it doesn’t recognize the male couple as the parents of the child whose birth they initiated. But it’s also ridiculous because of the idea that the foreigner, the Thai woman who gave birth to the child either naturally or by prearranged C-section – the one who’s getting paid – is a human being whom it’s possible to converse with, acknowledge, introduce into an authentic relationship or even just fly with.

The nullification of the concrete woman, the Thai new mother, is destructive and damaging to all women, including those who cannot have children. Because as long as it remains both possible and legitimate to reduce and hide women, and treat them as a mere tool, it is impossible to talk about human rights in the full sense of the term.

Gay flag.Credit: Dreamstime

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