Soliciting Surrogacy in the Hallowed Halls of Congress

By Judith Daar

Joining the ever growing circle of workplace misconduct targeting women’s bodies is the revelation that Representative Trent Franks (R-Ariz.) will resign his seat amid allegations that he solicited two female staffers to serve as gestational carriers and bear his children. In a characteristically defensive resignation letter, Franks bemoans the difficulties he and his wife experienced in forming their family, detailing their multiple miscarriages, failed attempts at adoption, and ultimately joy at the birth of twins with the help of a “wonderful and loving lady” who carried the couple’s children to birth. Wanting to grow their family when the twins reached three, the congressman admits that he “broached a topic that, unbeknownst to me until very recently, made certain individuals uncomfortable.” Those individuals were subordinate female employees who have the right to work in an environment where their boss cannot ask without warning, “Will you be my surrogate?”

Aside from the obvious addition to the constellation of misconduct premised on the assumption that the female body is fair game in service of male desires, this latest affront holds an irony that should not be lost on us, as well as lessons for the broader regulation of assisted reproductive technologies. As to irony, Arizona is one of a dozen states that outlaws surrogate parenting arrangements. The state’s family code provides, “No person may enter into, induce, arrange, procure or otherwise assist in the formation of a surrogate parentage contract.” This means that surrogacy agreements are unenforceable at law, but legal experts report that intended parents – like the Franks – are willing to take the risk and hope a court will recognize their legal parentage either before or after the children are born. While Rep. Franks did not reveal if his surrogacy contract was executed under Arizona law, odds are he and his wife sought judicial approval of their parental rights in the state he represents in Congress.

This now public act of surrogacy solicitation resurrects the debate about the commercialization of women’s reproductive capacity that has swirled for decades. Critics of commercial surrogacy argue that paying woman to bear children for others is a problematic commodification of the female body and the miraculous feat it is able to accomplish. But not paying for this highly valued service is a far greater threat to women’s well-being. When a much sought-after service is available only through altruism, then coercion, duress, and outright threats often follow. Franks does not reveal whether he approached his staffers in pursuit of a paid or altruistic arrangement, with the point being that neither is an appropriate conversation with a subordinate in the workplace. Apparently he is unfamiliar with the first commandment in research ethics, Thou shall not ask a lab assistant to serve as a human subject.

News outlets are reporting Franks offered one woman $5 million to carry his child, and then retaliated against her after she repeatedly refused. This represents the worst of both worlds – an amount too disproportionate to escape designation as coercive and retribution for refusing to serve in the requested capacity. The best that can emerge out of this sorry chapter is a recognition that the age-old gender hierarchy is revealing itself in ways that motivate many to reveal, resist, and hold to account. Bidding farewell to Rep. Franks and others, while a personal and professional blow to the men, is a welcome boost for the safety and integrity of women.

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