Is Making Orphans Good Public Policy?

Michigan lawmakers will consider legalization of commercial baby-buying and selling

Among the four sins that cry to heaven for vengeance is oppression of the widow and orphan. The Bible saw exploitation of widows and orphans as the epitome of moral turpitude because both groups were, by their very status, vulnerable. In today’s parlance, they are “on the peripheries.” In Judaism, the prophets constantly railed against those who mistreat widows and orphans.

Perhaps the only thing worse than abusing the widow and the orphan would be making widows and orphans. So, why does Michigan want to make that its public policy?

The Michigan State Senate comes back the week of January 10. Among bills on its 2024 calendar is a package of legislation to legalize commercial baby buying and selling, i.e., “commercial surrogacy,” in Michigan. Proponents of the legislation talk about the desire of some people to have babies but can’t. The claims are framed to tug at emotions. Not being able to have children may be heartbreaking for some people. But it’s not an excuse to make and trade babies or for society to protect such trafficking in law. And if we want to talk surrogacy, then examining how we understand “orphan” and how our society treats them can be instructive.

Orphans receive particular sympathy because they lack something (or, more accurately, someone) we viscerally recognize they should have: a mother and a father. And, when we speak of what someone “should” have, we are recognizing something normative, i.e., a right. A child has a right to parents. When a society provides for a process of adoption, it is trying to compensate for what we recognize a child should have: a mother and a father. Adoption is in a sense the “exception” that tries to create a situation a child normally would and should have: a mother and a father.

What does adoption tell us? It tells us that a family composed of a mother and a father biologically related to a child is normative, and, to the degree it can, adoption seeks to approximate that situation. It also tells us that being bereft of a biologically-related mother and/or father represents a progressively less-than-ideal situation for which adoption seeks in some measure to compensate.

So, let me repeat the key elements: the rights-bearer is the child, who is entitled to the realities prerequisite to his very existence, i.e., a mother and a father to whom the child is biologically tied.

Rep. Samantha Steckloff, a Farmington Hills Democrat who is leading the charge to legalize baby trafficking in Michigan, is primary pusher of a bill that would redefine “parenthood” in Michigan, at least in cases of surrogacy. A “parent” would not necessarily have any genetic relationship to the child. Indeed, Steckloff’s bill makes clear that genetics establishes no claim to parenthood. The person whose sperm fertilized an ovum and the woman whose ovum it is explicitly would not be “parents.”

From the people who claim to “believe in science,” this anti-scientific approach to the origins of a human life is mind-boggling.

A “parent” would not necessarily have any physiological, anatomical, and/or biological bonds to a child. Steckloff’s bill makes clear biology establishes no claim to parenthood. The woman who carries a baby in her body for nine months is explicitly not a “parent.”

From people who prattle about “humanity” and “concern” for people, this “don’t-reach-out-and-touch-someone,” as applied to a baby, is barbaric.

In Steckloff’s world, the truly genetic parents are turned into human Auto Zones: they are parts suppliers. Under the Steckloff regime, the biological contact of a woman with a prenatal child is reduced to a living incubator. Maybe, someday, our technology will allow us to eliminate her from the picture. But maybe even then some well-to-do people will still opt for the deluxe surrogacy package: select gametes grown in a “warm, caring human body” until, like with UPS, the buyer schedules delivery.

The only person who is a “parent” under Steckloff’s bill is the person signing the check that buys the surrogate and—if they spring for the premium surrogacy package—the gametes. In other words, the person responsible for creating the conditions by which a child is made and carried, consciously orphaned from his genetic and biological ties, is privileged by Michigan with the legal title “parent.”

Steckloff’s system has everything exactly backwards. Instead of genetics and biology providing the normative framework for child creation and childbearing for whose lack adoption becomes compensatory, stripping a child of his genetic and gestational heritage—making an orphan—is given state sanction so that “parenthood” becomes a legal, not a natural, construct. By excluding genetics and biology from what makes a parent, Michigan will in fact substitute adoption as the ordinary path to “parenthood.”

Why is this system backwards? Because it starts backwards, from an alleged “right” of an infertile adult to become a “parent” regardless of how, rather than from the real right of the child to have a mother and a father — to have a mother and a father to whom he is genetically and biologically related and which society holds up as the normative model for how one becomes a parent. (Indeed, Steckloff’s bill rejects a child’s entitlement to a mom and a dad by substituting the generic “parent” to designate the commissioning person and not even requiring two.)

Some may feel these characterizations are “extreme,” but the reality is that the State of Michigan will have to adopt this vision of how human beings come into the world, pretty or not.

And the long-term question is: Can this “adoptive” model of parenthood co-exist with the traditional model of parenthood as grounded in the natural realities of genetics and biology? Does the latter lose its normativity, its preferred legal status, becoming just “your way” of “becoming” a parent? And do we really want to pretend that these two approaches are equal, in no way different in terms of the child’s rights?

In ancient Rome, all children were adopted in the sense that being born in a family did not make one a member of it. One became a rights-bearing child only when, upon presentation to the father, he gave a thumbs up. Under the patria potestas, genetics was irrelevant (at least as far as the child was concerned); a father decided who was—or wasn’t—in the family. That’s why disabled children or excess daughters could be abandoned with impunity. They were not “adopted” into the family.

So why is Michigan creating an emptoris potestas—“the power of the buyer”—in the 21st century?

 

John M. Grondelski (Ph.D., Fordham) was former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey. All views expressed herein are exclusively his.

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