Addressing the Surrogacy and Egg Donation Elephant in the Room
A Response to Darren Rosenblum’s Unsex Mothering: Toward a Culture of New Parenting
I preface my response to Professor Rosenblum’s piece by sharing that as the co-chair of the Harvard Journal of Law and Gender’s article selection committee and the first member of the journal to read his piece, I am excited to see it published. I have championed its inclusion in the journal, and I’m delighted to have the opportunity to respond.
Unsex Mothering: Toward a New Culture of Parenting discusses ways that separating biological capacities associated with bringing a child into the world from the accompanying presumed roles of caregiving, or unsexing mothering, can improve women’s economic power. Professor Rosenblum persuasively argues that legislation like Sweden’s parental leave policy bolsters both women’s place in the workforce and men’s place in the family by unsexing mothering. My response will discuss how Professor Rosenblum’s vision of unsexed mothering, particularly one with “markets” for eggs and gestation services, may simultaneously tear down and reinforce the relegation of women to specific types of work dictated by their “biosex.” I also pose a number of questions to Professor Rosenblum to understand how (if at all) he would address the disparity between those who benefit from unsexing mothering and those who do not.
Professor Rosenblum claims that “unsexing mothering would have distributional consequences for women by granting greater access to high-level work.” That is, stripped of their presumed role as primary caretaker, women may achieve greater success in the economic sector where they have been excluded or have a held a secondary role to men. He also mentions the growing market in women’s eggs and that he and his husband utilized a surrogacy agency to facilitate the growth of their family. Thus, the elephant that appears in the room each time I read Unsex Mothering is how to reconcile the idea that unsexing mothering will work to “liberate traditionally sexed men and women” while simultaneously growing a market for labor wholly defined by biosex.
Professor Rosenblum does not explicitly respond to the elephant in his piece, but he could address the elephant in a number of ways. First, he could suggest that there is no tension—that women are still better off from unsexing mothering because the market for surrogacy services and eggs is just another point of entry for women into the economic sector. However, in order for this to align with his latent advocacy for equal pay for equal work, this would require a floor to the amount of compensation offered for surrogates or egg donors. Does Professor Rosenblum support such a floor? Given that the surrogacy industry is increasingly international, would he suggest that the floor travel to, for example, India, where many couples outsource their pregnancies? How much compensation is enough for a job that lasts at least ten months, 24-hours-a-day (accounting for pre-implantation hormone treatments)? It is also worth noting here that having a price floor may limit the number of individuals who can access such reproductive technologies. Does Professor Rosenblum think such a ceiling would fatally undermine unsexing mothering?
Second, Professor Rosenblum could contend that while his family used a surrogate and egg donor, his work is not advocating for utilizing such assisted reproductive technologies. In fact, my reading of his work indicates that unsexing mothering doesn’t require maintaining any genetic connection between unsexed parents and their children, and families like his could simply adopt, solving the problem of getting some women away from a role defined by biosex. However, completely addressing the elephant in the room would require a ban on using a surrogate or egg donor, something I can’t imagine Professor Rosenblum would support. Nonetheless, considering this option raises other important questions. Should any couple be limited in their methods of having children? Now that science has developed to the point where it is possible to conceive children through surrogacy and egg donation, is it constitutional to control such reproductive choices?
Finally, the elephant could be addressed on a utilitarian-type ground that while there are some women who would not be liberated from their traditionally sexed role, unsexing mothering helps other women and all men; therefore, the net good of unsexing outweighs the concurrent relegation of some women to forms of employment dictated by their biosex. It seems relatively clear that Professor Rosenblum thinks unsexing is good for everyone, so I don’t think it’s likely he supports this view.
Many scholars have grappled with these questions and they may seem far beyond the scope of Professor Rosenblum’s piece or broader unsexing project. However, if Professor Rosenblum intends to claim that unsexing mothering as he envisions it is advantageous to all women, these questions need to be addressed.
 J.D. Candidate, Harvard Law School.
 Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57 (2012).
 Id. at 78.
 Id. at 116.