Theology Today - Vol 45, No. 2 - July 1988 - ARTICLE

The angel said to her … "You shall conceive and bear a son, and you shall give him the name Jesus." ..."How can this be, " said Mary, "when I have no husband?" The angel answered, "The Holy Spirit will come upon you, and the power of the most high will overshadow you."..."Here I am," said Mary. "I am the the Lord's servant. "-Luke 1:28-38

THE question of surrogate motherhood has been very much in the news lately. The notoriety of the "Baby M" case has nearly everyone opinionating vehemently about the pros and cons of the practice. But, as is usually the case in those situations in which our emotions and preconceptions are engaged, few efforts have been made to gain such perspective on the facts as history is designed to give. It is the purpose of this brief essay to offer a moderate remedy to this malady.

The practice of surrogacy is not altogether new, and the forms it has taken have been many. Wet-nursing, for example, was a form of surrogacy common among Hebrews (Gen. 24:59) and Egyptians (as attested by the story of Moses in Ex. 2:7), and the practice endured in Europe and America until the beginning of this century. What the surrogate provided was a breast rather than a womb, but it was a woman's organ that was borrowed or rented so as to free the mother from the burdens of prolonged lactation.

Curiously, too, the history of bastardy witnesses to the fact that, in the case of infertile marriages or for political reasons, important men, or men of noble rank, procured the services of women with whom they were not necessarily in love and whose sole role, often recompensed, was to bear an heir (or, in some cases, a contender to title or throne). Such women were essentially surrogates, no matter what else they might have been called. But Canon Law did not sanction the practice, a fact Henry VIII discovered much to his chagrin. For what he sought, in effect, was a. surrogate to carry the child his legitimate wife, Catherine of Aragon, could not give him. The practice, however, was so wide-spread that the law, both civil and religious, devised a means called affiliation, by which it could cure what it otherwise frowned upon.

Ignacio L. Gotz is Professor of Philosophy and Comparative Religion at Hofstra University's New College, Hempstead, N.Y., where he also serves as Coordinator for the Humanities. He is the author of The Psychedelic Teacher (1972) and Creativity (1978) as well as numerous articles in scholarly journals.

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Farther back in antiquity, the ancient law code of Hammurabi (ca. 1792-1750 BCE) recognized the practice of surrogacy. It specified the conditions under which it was lawfully permissible and detailed provisions for guidance in certain cases. The commonest case referred to in the law is that of a marriage between an ordinary male citizen and a priestess-wife" (naditum), where for religious reasons the wife would not bear children. In such cases, the wife was entitled to bring a. handmaid to her husband to bear children (that is, to be a surrogate). The law (#144 and #145) makes a very clear distinction between such a. surrogate and a concubine (that is, a woman brought into the household by the husband's choice). The law is also very clear in its stipulation that the pre-eminence of the wife must be safeguarded (#145); if the surrogate attempts to make herself equal, the wife has the right to assert herself, but the Code (#146) states the limits of what she may do to maintain her own status.¹

Similar provisions are found in the Nuzi tablets (ca. 1520 BCE), which represent customs Probably prevalent around the geographical area of Haran, in northern Mesopotamia, an important center of Hebrew patriarchal life. In fact, a text (No. 67) from these tablets is so specific as to include names:

If Gilimninu bears children, Shennima shall not take another wife. But if Gilimninu fails to bear children, Gilimninu shall get for Shennima a woman…. In that case, Gilimninu shall have authority over the offspring.²

A case similar to this is encountered in Gen. 16:1-6. Sarah and Abraham (ca. 1800 BCE) have been unable to have children. Sarah then brings her maid, Hagar, as a surrogate to Abraham, and "pleads" with him (vs. 2) to give her children. When Hagar becomes pregnant, she despises Sarah, in clear violation of he law. Sarah complains to Abraham, who answers (according to the provisions of the code): "Your maid is in your hands; do to her as it would please you" (vs. 6).³

Other instances of surrogacy occur in biblical accounts-for instance, in Gen. 30:1-13, where Rachel brings her maid, Bilhah, to Jacob (and Leah later does the same with her maid Zilpah). This episode is interesting because, as the expression in verse 3 indicates ("let her give birth on my knees, so that I may reproduce through her"), Rachel's intention is to adopt the child born from the surrogate, to place a child on one's knee being a sign of adoption.

Clearly, these ancient societies developed complex ways of dealing with the problem of sterility at a time when offspring were essential to the continuation of family lines and to the conservation of acquired property. Surrogacy was not merely practiced; it was legislated in detail, so that the rights of the various persons involved, most importantly those of the wife and the surrogate, would be safeguarded. While the wife's

¹D. Winton Thomas, ed., Documents from Old Testament Times (New York:Harper Torchbooks, 1958), p. 32.
² E. A. Speiser, Genesis (New York: Doubleday & Co., 1964), p. 120.
³ Cf. Elsa Tamez, "The Woman Who Complicated the History of Salvation," Cross Currents 36 (Summer, 1986) 2, pp. 129-55.

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pre-eminence had to be maintained, the surrogate could not thereafter be sold.

Ancient codes were primarily concerned with the rights of the women involved-wife and surrogate. It was the wife's prerogative to choose a surrogate. Having children was important to her self-image, too, and to her role in the community. The laws also protected the wife against mere concubinage. This was necessary given the fact that insemination of the surrogate took place through intercourse.

Our situation is different in many ways. Insemination is artificially contrived; husbands as well as wives may be the primary force behind surrogacy; semen may come from the husband or from a sperm bank; and the ovum may come either from the surrogate herself or from a donor. Today there are also other possibilities available to childless couples. Besides adoption, there is general in vitro fertilization; the wife can be impregnated with her husband's sperm and another woman's egg; there is research on sub-human surrogates (an issue that raises awesome questions). But perhaps the most important difference is that we have no legal statutes to regulate the practice of surrogacy and to protect the rights of all involved.

Many years ago, in a very profound and thought-provoking book, Robert T. Francoeur asked the following question: "Should a nun be allowed by church law or her community to donate an egg to be fertilized by her brother-in-law and carried to term by her sterile and childless sister? A similar case might arise where the husband and wife are fertile but the wife cannot carry the child. Should the nun accept her sister's request that she carry a child conceived from germ cells of the husband and wife?"⁴

This question raises the issue of surrogacy in the context of virginity. Francoeur points out that Christianity as a whole, especially the Roman Catholic Church, has consistently emphasized biological integrity as a requirement for chastity and virginity.⁵ But must surrogacy necessarily violate virginity?

⁴ Robert T. Francoeur, Utopian Motherhood (New York: Perpetua Books, 1973), p. 27.
⁵Not exclusively, however. Cognizance has been taken, generally, of issues raised, for example, by the accidental rupture of the hymen; by rape, including the rape of a nun; and by the "virgin birth" of Mary. St. Thomas Aquinas had specifically stated that "the corporal integrity of the bodily organ has an accidental relation to virginity in so far as the one who deliberately and purposely abstains from venereal pleasure retains a physical integrity. Therefore, if it happens accidentally that in some manner, in a particular case, the physical integrity is lost, this does not harm virginity any more than if a hand or a foot is broken" (Summa Theologiae 2.2, 152, 1 ad 3). For other opinions on the relation of virginity to motherhood, see Karl Rahner, Schriften zur Theologie, vol. 4 (Ziirich, 1954-), pp. 173-205; A. Mitterer, Dogma und Biologie der heiligen Familie nach dem Weltbild des h.Thomas von Aquin und dem Gegenwart (Wien, 1952); W. Dettloff, "Virgo-Mater` KirchenvAter und moderne Biologie zur jungfraiilichen Mutterschaft Mariens," Wissenschaft und Weisheit 20 (1957), pp. 221-26; M.-J. Nicolas, "Le concept int6gral de Maternit6 divine," Revue Thomiste 32 (1937), pp. 58-93 and 230-272; Jean Galot, "La Virginite de Marie et la Naissance de Jesus," Nouvelle Revue Théologique 82 (1960), pp. 449-469; Raymond E. Brown, The Virginal Conception and Bodily Resurrection of Jesus (New York: Paulist Press, 1977) and The Birth of the Messiah (New York: Doubleday, 1977).

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The issue of surrogacy is, of course, paramountly important in Christianity. The central fact of the incarnation may be seen as an instance of surrogacy. Mary, after all, was married to Joseph, yet she deliberately and explicitly consented⁶ to bear a child "for God." That is, she agreed to allow one of her eggs to be fertilized miraculously "by the Holy Spirit," to carry the child thus conceived to term, and to give that child up when the time came, so that he could devote himself to his real Father's business (Lk. 2:49). The conditions of surrogacy (or at least of' one form of surrogacy) were perfectly fulfilled. However, tradition has maintained that being a surrogate did not stain Mary's virginity. In the early centuries, Tertullian wrote:

It is evident that she must be a virgin. For if he had no human father, his mother had no human husband. And a mother without a husband must be thought to be a virgin…. Now, if this distinction be observed, namely, if he be son of man as born of his mother (because not begotten of a father), and his mother be a virgin (because his father is not human), he will be that Christ whom Isaiah foretold that a virgin should conceive (Isa. 7:14)⁷

In the Middle Ages, Hugh of St. Victor asserted that "conception did not violate Mary's chastity, nor did childbirth do away with her purity."⁸ Aquinas stated very clearly what he considered to be the accepted view: "That the Mother of Christ was a virgin while giving birth is beyond all doubt. The prophet not only said, 'Behold, a virgin shall conceive,' he added, 'and bear a son'."⁹ The explanation follows:

Christ willed to show the physical reality of his body in such a way that it would also reveal his divinity. Hence … to show that he had a real body he was born of a woman; but to show that he wag really divine he was born of a virgin.¹⁰

Abbot Vonier has put it this way:

She is the virgin she is, not in spite of her motherhood, but because of her motherhood…. Her virginity is a positive, divine quality, not simply a preservation of the natural maiden state.¹¹

In the entire body of literature on the incarnation and the virgin birth, there isn't a single voice that even raises the question of the appropriateness

⁶Given the fact of informed consent, Mary's visitation by the divine does not parallel exactly the stories of maidens raped by Zeus. Mary Daly's argument that Mary had been predisposed to this consent by her immaculate conception is weakened by the fact that Mary's alleged immunity from sin at conception is not present in the narrative, but is a, later theological development. See Mary Daly, Pure Lust (Boston: Beacon Press, 1984), pp. 104-7.
⁷ Tertullian, Adversus Marcionem IV. 10, 6-7; V. 446, 1.11-12; 17-20.
⁸Hugh of St. Victor, De Beatae Mariae Virginitate (ML 176, col. 857).
⁹Summa Theologiae 3, 28, 2c.
¹⁰Summa Theologiae 3, 28, 2 ad 2.
¹¹Abbot A. Vonier, The Collected Works, 3 vols. (London, 1952), 1:341.

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ness of Mary's decision to be a surrogate. Endless discussions center around her virginity, the reality of Jesus' body, the kind of marriage Mary and Joseph had, and whether or not it was properly a marriage, since sexual intercourse was supposedly excluded before if not after the birth of Jesus. There are questions about the relationship of motherhood to virginity, of virginity to marriage, of marriage to sin. There are profound inquisitions into the nature of the symbolism of the virgin birth. But never is there even the slightest hint of disapproval of Mary's decision to be a surrogate. The contemporary disapproval of surrogacy is the more surprising given this implicit acceptance of Mary's surrogacy as the right thing to do.

III

It has been maintained recently that surrogacy, and the artificial insemination that accompanies it-in fact, that all methods of artificial fertilization, whether in vitro or in utero-are ethically unjustifiable because they are unnatural; that is, they overstep the natural ways of procreation.¹² But this opposition to artificial insemination is not really new. Pope Pius XII in 1949, and the Archbishop of Canterbury the year before, had condemned artificial insemination on the grounds that, as a theologian put it shortly after, "artificial insemination can never be a morally permissible substitute for natural sexual intercourse."¹³ Now, clearly, aside from the problems of defining what is natural (and therefore what might be termed unnatural) and of commiting oneself to the principle that whatever is not natural is morally wrong, it must be granted that artificial insemination is not more unnatural than the Holy

¹² Other arguments based on the sanctity of life, etc., are clearly not pertinent; they are, rather, duplicitous. For the most part, the same people who oppose surrogacy and birth control sanction war and capital punishment. Further, a convincing argument has yet to be developed that would show that enhancing the quality of life and the circumstances of its appearance militate against the sanctity of life.
¹³Joseph Sanders, S.J., Points of Medical Ethics (Ranchi: Catholic Press, 1954), p. 70; also Paul Ramsey, "Moral and Religious Implications of Genetic Control," in Genetics and the Future of Man, ed. J.D. Roslansky (Amsterdam: North-Holland Publishing Co., 1966), pp. 107-69. For a different view, see Joseph Fletcher, Morals and Medicine (Boston: Beacon Press, 1960), chap. 4, and Humanhood: Essays in Biomedical Ethics (Buffalo: Prometheus Books, 1979), pp. 82 ff. It should be noted that natural law morality, on which the major Roman Catholic arguments are based, rests on flimsier grounds than is usually thought. For one thing, the operative principle in this approach (that natural entelechies must always be followed because they mirror the divine nature) is not universalizable. If it were, the whole of civilization, including cancer cures, bypass surgery, kidney dialysis, eyeglasses, wheel chairs, elevators, airplanes, houses, and the like, would have to be deemed morally wrong. Besides, natural law morality only functions (and perilously) within a very narrow Thomistic understanding of the divine nature. A Scotist approach, equally orthodox, would yield a far more open-ended and flexible view of the divine nature and, consequently, of natural law morality. The choice of the Thornistic approach over the Scotist, therefore, is not unbiased. See Joseph Fletcher, "Anglican Theology and the Ethics of Natural Law," in Christian Social Ethics in a Changing World, ed. John C. Bennett (New York: Association Press, 1966), pp. 310-29; Louis Dupre, "Situation Ethics and Objective Morality," Theological Studies 28 (June, 1967) 2, pp. 245-57; also Joseph Fletcher and Thomas A. Wassmer, Hello, Lovers! (Washington, D.C.: Corpus Books, 1970), passim.

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Spirit's "coming upon" Mary. In fact, this was precisely what was meant by calling the virgin birth miraculous. Against this background is it reasonable to maintain that surrogacy is morally wrong because it is unnatural?

What, then, is at stake here? It is difficult to know for sure, but two considerations seem appropriate. First, there is no question but that acceptance of surrogacy , and, a fortiori, of artificial insemination, would weaken considerably the Catholic Church's opposition to birth control. In both cases, the reasons adduced are identical: the unnatural-, ness of the means (or, what comes to the same thing, that any artificial. method negates nature). But while the use of artificial methods of birth control is a private matter in which Church control is exercised through the power of injunctions on conscience, artificial insemination is a public one where Church control cannot be exercised as easily, given the medical nature of the procedure and the number of people involved. Its effect on the people at large, therefore, Would be far more difficult to counteract.

Second, there is the question of control. While no one believes any, longer that the male seed is alone responsible for conception, traditional. Christian morality still sanctions only those acts in which the seed is injected by a male lawfully entitled to do so. Only sexual access to the womb is lawful, a determination made by male lawgivers (a vicious circle, if there ever was one.)¹⁴ Artificial insemination threatens this arrangement in that access to the womb becomes multiple and non-, sexual. There is a certain emancipation here, just as joining a convent has always entailed a sexual liberation for women, and many have been willing to pay dearly for this freedom. Such independence threatens male control. Further, artificial insemination raises the specter that males may not be ultimately necessary for procreation, a fact that would undermine the long-held Christian view that offspring are the natural end of intercourse. Already in the 1940s, Karl Menninger had pointed out that parthenogenetical fertilization of ova was possible,¹⁵ and Francoeur, a few years later, quoted estimates that placed the incidence of unplanned "virgin births" anywhere between one in 1.6 million and one in 3 billion pregnancies.¹⁶

I should add that there is historical confirmation of the emancipation gained when control of sexuality is loosened. In the Middle Ages,, convents of nuns and their prioresses grew extraordinarily powerful,

¹⁴ Rosemary Radford Ruether, Sexism and God-Talk (Boston: Beacon Press, 1983), pp. 260-61. Feminists sometimes line up against surrogacy on the ground that no woman should be forced to give up her child. This principle itself needs qualification, as in cases of physical abuse of children, mental derrangement, and the like. But even if taken at fact: value, it surely must be clear that surrogacy is not based on "taking away" but, rather, on "giving up," an act that can be very loving and generous, as the recent case of triplets in South Africa demonstrates.
¹⁵ Karl Menninger, Love Against Hate (New York: Harcourt, Brace & Co., 1942), p. 41.
¹⁶R.T. Francoeur, Utopian Motherhood, pp. 140-41.

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with some abbesses acting essentially as bishops, having the power to bless congregations, administer some sacraments, and govern large territories. More recently, the Community of Oneida, perhaps the most successful commune of the nineteenth century, waned rapidly and dissolved once the rigid control of sexuality that had characterized it was relaxed in the latter part of that century. Is it some such freedom that the Catholic Church fears will ensue if the control over sexuality is lost due to a proliferation of methods of non-sexual fecundity? Is some such fear behind the opposition to surrogacy?

Surrogacy has been an important part of the Judaic as well as of the Christian tradition. The story of Abraham and Hagar and the event of the incarnation clearly establish a historical precedent one should neither ignore nor deny. The fact that ours is a technologically superior culture should not blind us to the social, legal, and religious contributions of our ancestors. "Of nothing is truth ashamed except of being hidden,"¹⁷ wrote Tertullian at the beginning of Christianity. And centuries later, another great African, Camus, added, "Nothing is true that forces one to exclude."¹⁸

While churches rush to condemn the practice of surrogacy, and legislatures hurry to legislate, we can hope that some modicum of wisdom will be injected into the discussion and that some perspective will be gained by a consideration of the laws and practices common to the people whose heritage we proudly bear. These historical examples show that surrogacy cannot be judged morally wrong a priori. The historical perspective presented here should help us address ourselves to safeguarding the process in a creative fashion rather than eliminating it.

¹⁷ Tertullian, Adversus Valentin. 111, 2; V. 179, 1.17.
¹⁸Albert Camus, "Return to Tipasa," in Summer, Philip Thody, ed., Lyrical and Critical Essays (New York: Vintage, 1968), p. 165.