This is essay is part of the OOPS course Law and Sexuality.
I find it rare to encounter examples of women’s issues being seriously examined in a complex fashion on television. However, in the show The Good Wife I found an issue that challenged common sense debates. In season five, episode three (“A Precious Commodity”) we are presented with a case involving a surrogate mother and two biological parents. The three have just learned that the fetus has an 85% chance of having a rare chromosomal disease that would only allow the baby to survive a few days, but more likely a few hours, after birth. Since the surrogate pregnancy is still in the second trimester, the biological parents, but more specifically the mother, decide to abort the fetus — to which the surrogate mother initially agrees. On the day that the abortion is supposed to take place the surrogate mother never shows up for it. She then refuses to have an abortion because in her mind the fetus has a chance of viability since she can feel it kicking.
When the biological parents seek to compel the surrogate mother to have an abortion, she makes the argument that she should be able to make decisions regarding her own body. On the other hand, the biological parents argue that since the fetus is formed from their genetic material, it is theirs, so they should have control over what happens to it. They additionally argue that they are the ones who will assume responsibility for the baby when it is born, which gives them the right to choose what happens.
The most thought-provoking aspect of this case, in my opinion, is that it raises the question of which rationale lays the right to have an abortion: autonomy over one’s body or the right to decide whether to be a mother or not.
The right to choose is a fundamental part of the argument in favor of abortion. In this case, the surrogate mother maintains that she has the right to choose what happens to her own body, but this is complicated by the fact that the fetus she is carrying is not her own. It is interesting to hear this case in conjunction with Pamela Haag’s book Consent, which discusses sexual labor and how it relates to the concept of consent.
It is within this framework that I would like to argue here that surrogacy is a form of sexual labor. Haag argues that “white slavery’s banishment of sexual commerce as an authentic enactment of consent unfolded within a larger discussion of normative labor contracts and social relations.” (68). I interpret this to mean that since sexual work, such as surrogacy, is not seen as a normative form of labor, the surrogate could never truly consent to being a surrogate. Therefore, she can retain control of her body. I also think this is a good testament as to whether the surrogate mother can be compelled to abort the fetus. If the surrogate does not want to consent to an abortion she should not have to. Another compelling part of Haag’s text is the phenomenon of “white slavery” itself. In the episode we see that both the biological parents and the surrogate mother are white and most likely middle to upper class. Surrogacy is an industry that, as of right now, really only caters to this demographic because it is so pricey. I think this is just another way in which Haag’s text can be related to this episode, compelling the argument further.
The difficulty with this, though, is the compelling argument for the other side. The biological and social parents of the fetus, in this case, argue that they want an abortion because they do not feel equipped to care for a disabled child — if the baby even lives. They had also had a baby in the past that was disabled and died and the emotional weight of it was a lot for them to bear, so they did not want to go through that pain again. Thus, they are not only biologically responsible for the child, but are also socially responsible for the child. The surrogate is the one carrying the fetus, but as soon as the baby is born she gets to walk away. This, to me, is a matter of fairness. Is it fair for the surrogate mother to make these parents care for a child that will probably only live in pain for a few days? Autonomy of the body is imperative, but this argument is too, is it not? At one point in the episode the biological mother pleads to the surrogate saying that she wishes she were the one who was pregnant, but since she is not, she begs the surrogate to adhere to her wishes. She also tells the surrogate about her past baby at this point and all the suffering that loss caused. She and her husband hired a surrogate in the hopes of keeping this from happening again. Women who hire surrogates generally do so out of necessity. They do it because they are physically unable to carry the fetus themselves. It is also important to note that, in this case, it really is about what the women want. While the biological mother’s husband is with her throughout the whole thing, he rarely says a word. It really became an argument between the two mothers.
This case is something I have thought a lot about, and I still do not know which side is right or even if there is a right answer. Part of me feels that the surrogate is being selfish for not respecting the wishes of the biological mother because she is not the one assuming responsibility for the baby once it is born. Part of me also strongly believes that, even if my argument that she is a proxy of sorts holds true, the surrogate mother still has a right to choose what happens to her body. It also does not help that surrogacy is a relatively unregulated process and there is not a lot of legislature for it, so decisions like these are even more difficult. Legislature would have to grapple with political questions that I’ve been asking throughout this whole thing: whether abortion is an exercise of one’s right over one’s own body or the exercise of the right to choose motherhood. Haag’s argument could also come back to this and her argument about consent and “white slavery,” specifically, would be instrumental in trying to write legislation.
At the end of the episode, as the two sides continue to fight their cases, we find out that the doctor miscalculated the fetal age in the first place, so the surrogate mother was already in her third trimester — meaning that an abortion is no longer an option. From a television perspective this is an understandable ending because, without real life precedent, it would have been difficult to accurately make a decision on the case. From a real-life perspective, it just makes me think about how many more laws need to be put in place to guide decisions in reality. Sure, this happened on television, but that does not mean there are not people out there who have experienced what these fictional characters have.